n-a-shareefa-vs-state-of-kerala

5/28/2018 N-a-Shareefa-vs-State-of-Kerala

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT: THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID

FRIDAY, THE 28TH DAY OF MARCH 2014/7TH CHAITHRA, 1936

WP(C).No. 19431 of 2013 (D)

N.A. SHAREEFA

versus

STATE OF KERALA

HARUN-UL-RASHID, J.

Dated this the 28th day of March, 2014.

J U D G M E N T

Both writ petitions are filed seeking CBI investigation.

2. Though the writ petitioners in both writ petitions are different, the facts and relief sought for are

similar, common questions of fact and law arises for consideration and therefore, both cases were heard

jointly and a common judgment is passed. The writ petitions were heard on 25.11.13, 3.12.13, 16.12.13,

19.12.13, 2.1.14, 3.1.14, 6.1.14, 7.114, 8.1.14, 9.1.14, 10.1.14, 15.1.14, 16.1.14, 20.1.14, 30.1.14,

31.1.14, 10.2.14, 11.2.14, 18.2.14, 19.2.14, 25.2.14, 26.2.14, 4.3.14, 11.3.14, 12.3.14 & 13.3.2014.

3. The petitioners in W.P.(C) No.19431/13 claim title and possession in respect of an extent of 116 cents

in Survey No. 651/8A, 651/8B and 651/8C of Thrikkakara North Village. Respondents 1 to 7 are the State

of Kerala and the Officials of the Revenue, Police Department and Vigilance and Anti- Corruption Bureau

respectively. Respondents 8 to 13, who are the party respondents, are the contesting parties.

Respondents 14 to 17 are Revenue officials. Respondent No.18 is the Gunman (now under suspension)

of the Chief Minister of Kerala, against whom various allegations have been made. Respondent No.19 is

the wife of respondent No.18. Respondent No.19 was working in Survey Department and she was

transferred to the office of the Commissioner of Land Revenue on 17.1.2012 and she joined duty on

17.2.2012. Allegations are made against her. Respondent No.20 is a private party. Respondent No.21 is

the Director of Central Bureau of Investigation.


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4. The petitioners in W.P.(C).No.19431/2013 traced their title to the property as follows:- The property

was outstanding in the possession of Thekkesamooha Madam in Jenmom right. In 1088 M.E.,

Lakshmana Ayyer of Thekkesamooha Madom granted lease of the property in favour of Ahammed

Pareeth. In the year 1103 M.E. Kunjan Marakkar, son of Ahammed Pareeth, got a renewal of the lease

from Lakshmana Ayyer. The jenmom right of the property was transferred by the jenmy to Aliyar Kunju

as per document No. 106 of 1102 M.E. A partition took place in the family of Aliyar Kunju in the year

1114 M.E and the property in dispute was allotted to Hamsa Koya, son of Aliyar Kunju, who sold his

rights in the property to Muhammed, another son of Kunjan Marakkar, as per sale deed No. 1186 of

1957 (Ext.P1). Even before that Kunjan Marakkar had attorned to Hamsa Koya and the lease was

renewed in favour of Kunjan Marakkar as per document No.2335 of 1116 M.E. In the year 1960,

Muhammed, son of Kunjan Marakkar, sold the property to his brother Kadar Pillai. Kadar Pillai is the

husband of writ petitioner No.1 and father of the other writ petitioners. Out of the extent of 1.16 acres,which Kadar Pillai got as per the sale deed of 1960, he transferred an extent of 49 cents to his wife, the

first petitioner as per document No.872 of 1960. Kadar Pillai died in 1980 and the properties were

partitioned among his legal representatives, as per document No.362 of 1982. Mutation was effected as

per the allotment made in the partition deed and the subsequent transfers were made between the

legal representatives of Kadar Pillai. The petitioners state that the original Thandaper numbers were

8826 and 8597 and after mutation effected as per the partition deed of 1982, the Thandaper number

was changed as T.P.No.9074. It is also stated that after re-survey, the Thandaper number is 2127 and

later, the Thandaper was changed as 9365 to 9367 on the basis of the partition deed and subsequent

transfers.

5. Respondents 8 and 10 to 13 in the writ petition filed O.S.No.617 of 2007 on the file of the Sub Court,

Ernakulam against the writ petitioners to cancel partition deed No.362 of 1982. According to the writ

petitioners, the plaintiffs in O.S.No.617/2007, in collusion and connivance with respondents 18, 19 and

20 presented fabricated documents before the civil court. On the basis of the complaint filed by the writ

petitioners, Crime No.1003/2007 was registered by the Kalamassery Police Station for the offences

punishable under Sections 465, 468, 469 and 471 read with Section 34 of Indian Penal Code. It is seen

from the counter affidavit filed by respondent No.4 that final report was filed on 9.1.2009 in Crime

No.1003/2007.


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6. Respondent No.8 filed O.S.No.744/2010 before the Munsiff Court, Ernakulam to set aside document

No.8782/2004 executed by the first petitioner to the second petitioner in respect of a portion of the

property in dispute.

7. There was an earlier suit filed as O.S.No.222/1981 on the file of the Additional Munsiff Court,

Ernakulam for partition. It is submitted by the learned counsel for the writ petitioners that the said suit

was filed by Muhammed, son of Kunjan Marakkar against writ petitioners 1 to 3 for partition of tenancy

rights. In the said suit, Muhammed contended that he had transferred only the jenmom right as per sale

deed of 1960 to his brother Kadar Pillai, the predecessor-in-interest of the writ petitioners and that he

had not transferred the tenancy rights to Kadar Pillai. This contention was negatived by the civil court,

which was finally disposed of in S.A No.136 of 1994 by the High Court as per Ext.P11 judgment. In

Ext.P11, this Court finally held that the properties belonged to Kadar Pillai exclusively.

8. While the civil suits were pending before the civil courts, on 21.6.2011, respondent No.11(Abdul

Salam) filed a petition before the District Collector, alleging that the writ petitioners fraudulently got the

Thandapers registered in their names and paid land Revenue. On 21.6.2011, the District Collector

forwarded that petition to the Tahsildar, Kanayannoor for taking necessary action as per Rules. On the

same day, the Additional Tahsildar forwarded that petition to the Village Officer, Thrikkakara North. On

24.6.2011, the Village Officer, Thrikkakara North sent Ext.P12 detailed report to the Taluk Office, stating

that the land in question belonged to Elangalloor Swaroopam and Pattayam was not obtained by Kadar

Pillai or his successors. It was also reported that in respect of 12 cents of land, the Thandaper originally

stood in the name of one Vallon Mani. It was stated in the report that the old records and re- survey

records do not tally. On 28.6.2011, the Additional Tahsildar issued a direction to the Village Officer to

stop accepting basic tax and to issue notice to the parties. On 28.7.2011, the Additional Tahsildar

withdrew the order directing the Village Officer not to accept basic tax. Aggrieved by the said direction

dated 28.7.2011, respondent No.11 (Abdul Salam) filed a petition before the Commissioner of Land

Revenue, requesting not to accept basic tax from the petitioners and not to issue any possession

certificate to them. On 9.8.2011, the Commissioner of Land Revenue forwarded the said petition to the

District Collector, Ernakulam and the Tahsildar, Kanayannoor for urgent report. The Additional Tahsildar

endorsed the letter to the Village Officer for submitting report. On 24.9.2011, the Village Officer

reported that the properties stood in the name of the writ petitioners and that pattayam was not

obtained. The Village Officer reiterated the stand taken by him earlier. On 12.12.2011, the Tahsildar

submitted Ext.P15 report to the Commissioner of Land Revenue stating that the matter is subjudice as


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suits are pending before the civil courts. He also reported that till the disposal of the civil suits, all

proceedings in the Revenue Department in respect of the lands concerned should be stopped. On

receipt of Ext.P15 report, the Commissioner of Land Revenue issued Ext.P18 letter dated 4.1.2012 to

respondent No.11 stating that in view of the pendency of civil and criminal cases in respect of the

disputed property, Revenue Department could not take any action on the petition filed by respondent

No.11.

9. The matter should have come to an end by the issue of Ext.P18. But, the proceedings were again

initiated by the contesting respondents. Respondent No.11 submitted another petition dated 14.3.2012

(Ext.P19) to the Minister for Revenue, reiterating his earlier contentions. The Government forwarded

Ext.P19 petition to the Commissioner of Land Revenue.

10. On receipt of the letter dated 9.4.2012 from the Government, the Commissioner of Land Revenueissued Ext.P20 letter dated 18.4.2012 to the District Collector, Ernakulam to submit a report, after

verifying the records. The District Collector was also directed to furnish information with respect to six

questions mentioned in Ext.P20. On receipt of Ext.P20, the District Collector directed the Additional

Tahsildar to submit a report. The Additional Tahsildar (respondent No.17) issued Ext.P24 report dated

11.7.2012 containing almost the same details which were furnished by his predecessor in office in

Ext.P15. The District Collector, in turn, sent Ext.P25 report to the Commissioner of Land Revenue.

11. It would appear that the office of the Commissioner of Land Revenue made a note that as per the

letter dated 9.4.2012 issued by the Government, the Commissioner of Land Revenue was expected to

submit a report to the Government. However, the Commissioner of Land Revenue issued Ext.P26 letter

to the District Collector to cancel Thandaper Nos.9365, 9366, 9367 and 21007, and to report compliance

of the same. On receipt of Ext.P26, the District Collector forwarded the same to the Additional Tahsildar,

the Additional Tahsildar to the Village Officer and finally the Thandapers were cancelled by the Village

Officer.

12. The petitioners allege that the Revenue officials re- opened the matters, which were already closed,

which led ultimately to the cancellation of Thandapers, at the influence of respondent No.18, the

Gunman (now under suspension) of the Chief Minister of Kerala with the active assistance of his wife

respondent No.19. The petitioners contend that they were even denied an opportunity of being heard

by the Revenue officials and everything was done in a hurry and that too, when the civil suits are

pending. In the writ petition (Edappally case), the petitioners alleged as follows:


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"31. Respondents 8 to 13 & 20 in collusion and conspiracy with respondents 18 & 19 bribed, compelled

and influenced, respondents 14 to 17 to forge and fabricate false documents, reports and records,

including concoction of false Thandaper in the name of one Vallon Mani, for the purpose of defeating

the title of the petitioners over 116 cents of valuable land situated in Thrikkakara North Village in

Sy.Nos.651/8A, 8B, and 8C at Pathadippalam. This was to defeat the title of petitioners to cause undue

enrichment for respondents 8 to 13 & 20 through misuse and abuse of official position & powers by

respondents 14 to 19. The 18th respondent is a Gunman in the office of the Chief Minister of State of

Kerala and his personal influence in the highest political and administrative echelons of Government of

Kerala as notoriety. Though the petitioners had filed numerous complaints, Exhibits P28 to P32 before

the highest officers of the State, even today, not even a crime is registered and no investigation has

been conducted or even initiated against respondents 8 to 20. In the face of such tremendous political

influence, filing of an ordinary complaint before the police will be absolutely useless, as ordinary policeofficers, even upto the level of Commissioner, will be helpless in the face of notoriety, influence and

power yielded by the 18th respondent".

13. The Statement in Ext.P31 complaint assumes relevance in the context. It is stated thus: "The former

Gunman of Chief Minister, Salim Raj is the brother of Noorjahan(R9), that she is the the wife of

K.H.Abdul Majeed (R8), that after Sri. Ommen Chandy became the Chief Minister, "Super Chief Minister"

Salim Raj, Abdul Majeed, his wife Noorjahan, Abdul Salam(R11), Muhammadali (R10), Dillep(R20) and

C.K.Jayaram(R6) conspired with Thrikkakkara Village Officer Sabu, Special Village Officer Murad, former

Additional Tahsildar of Kanayannoor Taluk, Sunilal, Krishnakumari, Head clerk of Ernakulam District

Collectorate, Shamsad (R19) of Land Revenue Commissionerate, fabricated false records, destroyed the

original records, issued false orders and reports by misusing the official position with intention to cheat

the petitioners and attempted to usurp our land". Counter affidavits were filed by respondent No.4,

respondents 8 to 13 jointly, R20, R16, R17, R14, R18 & R19 jointly, R26 & R27. Additional counter

affidavit was filed by respondents 8 to 13 jointly and R17 & R14. A statement was filed by the 24th

respondent and 1st respondent. 14. The 4th respondent in paragraph 7 of the counter affidavit stated

thus: "It is submitted that the verification of records produced by the complainant and the records of

the Village Office and Taluk Office etc, connected with the ownership of the land, is going on. The

investigation so far conducted in this case makes it clear that a very detailed investigation is necessary

to find out the exact fact regarding the allegations by examining and fortifying documents related to

ownership and transfer of the property for the last several years." 15. The party respondents 8 to 13 in

their counter affidavits inter alia stated that the writ petition is an abuse of the process of law and it was


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an "attempt to media sensitize and cover up the misdeeds and fraud committed by the petitioners, in

the wake of some political issues in which various government functionary's names have been dragged

by the media including allegedly the gunman of the Chief Minister etc". It is also stated therein that

since the gunman is distantly related to the 9th respondent, the petitioners are trying to drag him also

to the case. The respondents 8 to 13 also contended that the writ petitioners have no title to the

property and that the jenmom rights in respect of the property (to an extent of 78 cents) vested in

respondents 8 to 13 and their family as per registered sale deed Nos.2907/1966 and 1988/1967 of SRO,

Edappally executed by Elangalloor Swaroopam to Hassan, the predecessor- in-interest of respondents 8

to 13. Suit by respondents 8 to 13 as plaintiffs numbered as O.S.No.617/2007 on the file of the Sub

Court, Ernakulam is filed against the present petitioners for cancellation of the partnership deed alleged

to have been falsely executed in the petitioners' family including the properties of the respondents.

Learned counsel for respondents 8 to 13 Sri.M.P.Ramanathan on the strength of document No.2907/66and 1988/67 produced as Exts.R8(3) & R8(4) contended that they have purchased the jenmom right

from Elangallor Swaroopam and therefore petitioners in the writ petition have no right over the

property. It appears that as per Ext.R8(3) and (4), respondents obtained jenmom right over the property.

There is no mention about the persons who are in possession and enjoyment of the property. It cannot

be disputed that the petitioners are in possession and enjoyment of the property by virtue of Ext.R8(1)

patta chittu of 1064/1102 ME (1924 AD) of SRO, Alangad executed by the predecessor-in-interest of the

petitioners, Sri.Aliyar Kunju in favour of Elangalloor Swaroopam. Ext.R8(1) is a deed of transfer of lease

executed by Rama Lakshmana Iyer in favour of Sri.Aliyar Kunju, who is the predecessor-in-interest of the

petitioners. Ext.R8(2) is the patta chit No.2909/1102 ME of SRO, Alangad. Aliyar Kunju, who got tenancy

assignment right as per Ext.R8(1), executed another patta chit in favour of Elangalloor Swaroopam

registered as document No.2909/1102 ME. Certified copy of the said patta chit is marked as Ext.R8(2).

The documents referred to above are documents of transfer of leasehold rights. Respondents 8 to 13

are claiming jenmom right over the property to an extent of 78 cents by virtue of registered sale deed

No.2907/66 and 1988/1967 of SRO, Edappally executed by Elangalloor Swaroopam to the predecessor

of respondents 8 to 13. The said documents were produced along with counter affidavit filed by

respondents 8 to 13 as Ext.R8(3) and (4). Going by the document, the predecessors of respondents 8 to

13 do not get possession of the properties. At that time the properties were outstanding with the

predecessors-in-interest of the petitioners. Petitioners, by virtue of said deeds, are in possession and

enjoyment of the properties right from 1102 ME (1924 AD) and continuing their possession till date.

Learned counsel Sri.M.P.Ramanathan contended that petitioners and their predecessors only had


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leasehold right and never got assignment of jenmom/ownership rights and were paying taxes as lessees.

According to the petitioners misusing and misrepresenting thandaper numbers put for the purpose of

collecting leasehold tax, have fraudulently mis-represented the same thandaper numbers for

jenmavakasam. Learned counsel submits that in the prior deeds of petitioners namely, document

Nos.871/1960 of SRO, Edappally and 872/1960 of SRO, Edappally, it is fraudulently and falsely stated

that the property is comprised in pattayam No.5681. It is said in that context, the Revenue authorities

required production of the pattayam or deed of purchase of jenmavakasam, as no such pattayam exists

nor deed of purchase of jenmavakasam exists, they were unable to produce the documents. The learned

counsel also submits that a look at Ext.R8(1) deed No.1064/1102 ME (1927) of SRO, Alangad would show

that it is a deed of sale whereby the leasehold right of Lakhsmana Iyer is sold to Aliyar Kunju. The

learned counsel also placed reliance on Ext.R8(2) ethirpattacheetu executed by Aliyar Kunju @ Bava in

favour of jenmi/lessor from whom the lease is taken and registered as document No.2909/1102 MEclearly stating that, what Aliyar Kunju has got as per Ext.R8(1) is a venpatta avakasam (lease) and the

deed is in reiteration of fresh terms of lease. The learned counsel also contends that the petitioner

wilfully suppressed Ext.R8(2) lease deed as it fully exposed petitioners false claim of jenmavakasam

having been purchased. It is contended that the disputed property belongs to Elangalloor Swaroopam

vaka or pnadaram vaka only and that the jenmom right of the properties to an extent of 78 cents is

vested in these respondents and their family obtained by registered sale deed No.2907/1966 and

1988/1967 of SRO, Edappally executed by Elangalloor Swaroopam to the predecessors of respondents.

The said documents are marked as Exts.R8(3) and R8(4). According to the counsel, after perusing the

revenue records and after considering all the facts, the revenue authorities directly cancelled illegal

thandaper numbers which is the subject matter of W.P.(C).No.23244/2012. The learned counsel also

placed reliance on Ext.R8(10) copy of the re-survey thandaper register extract of re-survey thandaper

No.4273 of Mani, S/o.Vallon and Ext.R8(11) copy of the re-survey thandaper register extract of re-survey

thandaper No.1869 of Thankappan and Velayudhan and contended that when re-survey was

implemented, the thandaper of Mani, S/o.Vallon bearing No.8826 in which he paid tax inclusive of the

year 1991 was given a new thandaper No.4273, co-related with the new thandaper number of

Velayudhan and Thankappan to their remaining properties given as 1869. According to the learned

counsel the report of the Revenue Secretary is unreliable, incorrect and only to be brushed aside. The

two reports submitted by the Revenue Secretary in the two writ petitions would show that Revenue

Secretary had gone through the records forwarded by the Registrar General of this Court including the

original Revenue records of respective Village Offices, Taluk Offices, note files of the office of the District


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Collectors concerned and the office files of the Commissioner of Land Revenue and additional

information provided by the petitioners as well as the respondents. I do not find that any sustainable

reasons are made out for not placing reliance on the findings and observations of the Revenue

Secretary.

16. The learned senior counsel, Sri.K.Ramakumar, who is appearing for respondents 8 to 13 in

W.P.(C).No.19431/2013 (Edappally case) contended that the State Government had constituted a

special investigation team for the investigation into the crimes and in the circumstances prayer for CBI

investigation has become infructuous. The learned senior counsel also pointed out that in the

complaints marked as Exts.P28-31 there is no prayer for investigation by outside agency and therefore,

the writ petition filed seeking CBI investigation is an afterthought. In this connection the learned counsel

for the petitioners appearing in both cases Sri.Dinesh R. Shenoy invited the attention of this Court to

the reply affidavit filed by the petitioners dated 19.12.2013. In the reply affidavit the claim of the 4th

respondent that prompt and effective action had been taken by the respondents is denied. It is pointed

out that direction was issued by this court in both writ petitions to seize telephone records of the party

respondents and the revenue records concerned for the purpose of preserving the evidence. Since the

persons who have committed the crime were continuing in the same position, it is submitted that the

said direction was not complied with and at the same time the 4th respondent and State filed

W.A.Nos.1208/2013 and 1364/2013 within a day challenging the order directing seizure and

preservation of the evidence. It is submitted that even though there was no order affecting the rights of

the State or the 4th respondent and the police force the State was not an aggrieved party at all, yet they

have challenged the order before the Division Bench. They obtained an order of stay. The second

portion of the order directing seizure of the revenue records was not stayed by the Division Bench. It is

said that the said order was not complied with till date by the police or official respondents. Ext.R4(b) is

the true copy of the letter dated 5.8.2013 issued by the Additional Director General of Police forwarding

the representation submitted by the petitioners before the opposition leader to the Home Department

for appropriate action. It is submitted by the counsel for the petitioners that Ext.R4(b) letter did not see

the light of the day till 9.10.2013 after this Court had been forced to make scathing remarks on the 4th

respondent. It is also pointed out that vigilance enquiry was initiated only after the order passed by this

court on 28.10.2013 in Edappally case. It is contended that even though Crime No.1646/2013 is said to

have been registered on 17.8.2013, this has also not seen the light of the day. Petitioners also produced

copy of the FIR No.1928/2013 of Kalamassery Police Station. The newspaper reports in this regard are

also produced as Exts.P69 & P70. It is further stated in the reply affidavit that after petitioners have filed


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complaint before the Additional Director General of Police and pursuant thereto and the huge hue and

cry in the State media over the turn of events, investigation was withdrawn from the Deputy

Commissioner of Police and handed over to his junior, Assistant Commissioner of Police, Thrikkakara.

Later, since it was found improper, the case was ordered to be handed over to Kottayam Crime Branch

CBCID. It is pointed out that no steps have been taken by any investigating team to investigate the

matter. It is also pointed out that no proper investigation is being conducted. It is clear from the fact

that even the direction in Ext.R4(b) was not complied with. As per Ext.R4(b) it was directed to file a

preliminary report within seven days and investigation report within 30 days. It is submitted that no

such report have been filed in the case even today establishing clearly the fact that the investigation is

not proceeding properly and is being diverted due to unseen influences and political interference. It is

seriously alleged that obviously the investigation by the State Police is stultified by the high influences

working for the party respondents. It is also submitted that investigation is being made not into theallegations in the complaint and the truth and genuineness of the same but into the title of the parties,

which is totally uncalled for and beyond the scope of investigation, which is regarding manipulation,

forgery, destruction of records in the Department of Revenue and submission of deliberate false

reports. It is also alleged that in the normal course, the police follows the method of tracing telephone

records of the accused. It is said that nothing of that has been sought or attempted in this case. The

contention of the learned senior counsel Sri.K.Ramakumar that the State Government had constituted a

special investigation team for the investigation into the crimes and in the circumstances prayer for CBI

investigation has become infructuous is without any basis so far the State Government had not

constituted a Special Investigation Team for investigation. It is true that the 4th respondent by order

dated 3.10.2013 transferred Crime No.1646/2013 for further investigation by the CBCID. The

Superintendent of Police, CBCID, Economic Offence Wing-II, Kottayam took over investigation in the

matter. Going by the statement filed by the 4th respondent and stated by the Superintendent of Police,

CBCID, it is seen that no Special Investigation Team was constituted to conduct the investigation. The

prayer for CBI investigation has become infructuous is without any substance. Writ petitions are filed

for a direction to the CBI to depute a senior officer to constitute a team and to investigate the various

offences and illegal acts committed by respondents and others or at any rate to constitute a Special

Investigation Team under the leadership of an officer not below the rank of Inspector General of Police.

The prayer denotes that for any reason CBI investigation cannot be ordered, the petitioners prayed that

at any rate Special Investigation Team may be constituted for the investigation. Petitioners denied the

claim of the 4th respondent that prompt and effective action had been taken by the police. It is pointed


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out that the direction issued by this Court in both writ petitions to seize telephone records of the party

respondents and the revenue records concerned for the purpose of preserving the evidence is not

complied with. It is also pointed out by the learned counsel Sri.Dinesh R.Shenoy that no action was

taken in response to Ext.R4(b) letter, that the recommendation by the 4th respondent was kept in cold

storage for over three months speaks the volumes of influences and political reach of the party

respondents. Vigilance enquiry was initiated only after passing of the order by this Court dated

28.10.2013 though several complaints were filed narrating the gravity of the offences committed. The

Crime No.1646/2013 was registered only on 17.8.2013 i.e., only during the pendency of the writ

petition. The learned counsel also pointed out the conduct of the Deputy Commissioner of Police who

has commenced investigation, that he directed the Kalamassery Police to register case against the

petitioners on the basis of false complaints filed by some other party respondents. It is submitted that

the petitioners have filed complaints before the Additional Director General of Police, pursuant theretoand due to the huge hue and cry in the state media over the turn of events, investigation was withdrawn

from the Deputy Commissioner of Police and handed over to his junior, Assistant Commissioner of

Police, Thrikkakara. Later since it was found improper, case was handed over to Kottayam Branch CBCID.

Due to the aforesaid turn of events, petitioners alleged that obviously investigation by the State Police is

stultified by the high officials working for the party respondents. 17. The learned Senior Government

Pleader Sri.Muhammed Shah referred to paragraph 5 & 6 of the statement filed by the 4th respondent

in W.P.(C).No.19431/2013. In paragraph 5 & 6 it is inter alia stated that Ext.P31 complaint was received

by the 6th respondent only on 11.7.2013 and immediately it was forwarded to the Deputy

Commissioner of Police, Kochi City for enquiry and necessary action vide endorsement No. 131/7464/13

dated 15.7.2013. The Deputy Commissioner of Police, while conducting enquiry recorded the statement

of the petitioners 1 & 2 on 17.8.2013 and that since the statement of the 2nd petitioner revealed

commission of cognizable offence, the Deputy Commissioner of Police forwarded the statement to the

Station House Offier, Kalamassery for registering a crime and investigation of the case. In paragraph 6 of

the statement it is stated that Crime No.1646/2013 was registered for the offences punishable under

Section 468, 471, 511 & 420 IPC by the Kalamassery Police Station. It is also suggested by the Additional

Director General of Police, South Zone, that for ensuring credible, effective and impartial investigation

the case requires to be transferred to a Special Investigation Officer of the CBCID. Accordingly, the 4th

respondent by order dated 3.10.2013 transferred Crime No.1646/2013 for further investigation by the

CBCID. The Additional Director General of Police (Crimes) was directed to personally supervise the case

and a Superintendent of Police was directed to investigate the case. The investigating officer questioned


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the Village Officer, Special Officer and recorded detailed statement from the complainant. It is further

stated that investigation so far conducted in this case makes it clear that a very detailed investigation is

necessary to find out the exact fact regarding the allegations by examining and fortifying the related

ownership and transfer of property for the last several years.

18. The learned senior counsel Sri.K.Ramakumar relied on the decisions of the Apex Court in Sakkiri Vasu

v. State of UP and others (2008 (2) SCC 409) and Secretary, Minor Irrigation & Rural Engineering

Services, UP and others v. Sahngoo Ram Arya and another (2002(5) SCC 521). In the first decision the

Apex Court observed thus:

"We often find that when someone has a grievance that his FIR has not been registered at the police

station and/or a proper investigation is not being done by the police, he rushes to the High Court to file

a writ petition or a petition under Section 482 Cr.P.C. We are of the opinion that the High Court shouldnot encourage this practice and should ordinarily refuse to interfere in such matters and relegate the

petitioner to his alternating remedy, first under Section 154(3) and Section 36 Cr.P.C before the police

officers concerned, and that is of no avail, by approaching the Magistrate concerned under Section

156(3) Cr.P.C".

In the second decision referred above, the Apex Court held thus:

"While the High Court has power under Article 226 to direct an enquiry by CBI, a decision to direct an

enquiry by CBI against a person can only be done if the High Court after considering the material on

record comes to a conclusion that such material does disclose a prima facie case calling for an

investigation by CBI or any other similar agency. The same cannot be done as a matter of routine or

merely because a party makes some such allegations. It is not sufficient to have such material in the

pleadings. On the contrary, there is a need for the High Court on consideration of such pleadings to

come to the conclusion that the material before it is sufficient to direct such an enquiry by CBI. While

directing an enquiry by CBI, the High Court must record a prima facie finding as to the truth of such

allegations with reference to the reply filed".

The learned senior counsel also relied on the judgment of the Apex Court reported in Saraswati

Industrial Syndicate Limited etc. v. Union of India (1975 SC 460) and contended that CBI investigation

shall be ordered only if preceded by demand. Placing reliance on the decision reported in Aleque

Padamsree and others v. Union of India and others (2007 (6) SCC 171) the learned senior counsel

contended that whenever any information is received by the police about the alleged commission of


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offence which is a cognizable one there is a duty to register the FIR. The course available, when the

police does not carry out the statutory requirements under Section 154 and that in case the police

officials fails to do so, the modalities to be adopted are as set out in Section 190 r/w Section 200 of the

Code of Civil Procedure. It is open to any person aggrieved by the inaction of the police officials in

registering the FIR, the modalities to be adopted and observed are in terms of the aforesaid provisions.

18(a). The learned senior counsel Sri.S.Sreekumar appearing on behalf of the 17th respondent in

Edappally case denied the allegations against her in the writ petition. It is contended that the allegation

that the 17th respondent and others had created false documents, misleading reports and caused the

Thandaper of the petitioner cancelled is false. He also denied the allegation of the petitioners that 17th

respondent colluded and misused her official position under the influence of respondents 8 to 13 and 18

to 20. The learned senior counsel also contended that the petitioners failed to prove any prima facie

case to warrant police enquiry that the remedy available to the petitioners is to approach the criminalcourt with a private complaint if their grievances are turned down by the police. Placing reliance on the

decision reported in Secretary, Minor Irrigation & Rural Engineering Services, UP and others v. Sahngoo

Ram Arya and another (2002(5) SCC 521) the learned senior counsel contended that to direct an enquiry

by CBI against a person can only be done if the High Court after considering the material on record

comes to a conclusion that such material does disclose a prima facie case calling for an investigation by

CBI or any other similar agency, and the same cannot be done as matter of routine or merely because a

party makes some such allegations. 18(b). The learned counsel for the 27th respondent in Edappally

case Sri.Nagaraj Narayanan placing reliance on Ext.R8 (1) document No.1064/1927 (1102ME) and

Ext.R8(2) document No.2909/1927 produced by respondents 8 to 13 contended that Elangalloor

Swaroopam is the jenmom right holder of the disputed property and continues to be the jenmom right

holder of 38 cents in said survey numbers and jenmom right over 78 cents land was conveyed by

Swaroopam to Hassan, Illickal House, who is the predecessor-in-interest of respondents 8 to 13 vide

deed Nos.1988/1967 and 2907/1966 of Edappally SRO. The learned counsel submits that the land

claimed by the petitioners belongs to the Swaroopam and the Swaroopam has never transferred the

jenmom right to the petitioners or to their predecessors-in-interest nor any documents were produced

by them to show the transfer of jenmom right from this respondent to the petitioners or their

predecessors-in-interest. It is also pointed out that the documents produced by the petitioners would

clearly reveal that 6th respondent has only transferred the leasehold right to the predecessors-in-

interest of the petitioners. It is submitted that Ext.R8(2) patta chit deed No.2909/1102 (ME) executed by

Aliyar Kunju in favour of Swaroopam is willfully suppressed by the petitioners. Placing reliance on


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Ext.R8(2) it is pointed out that Aliyar Kunju clearly recited that the said lease covered by document

No.Ext.R8(1) document 1064/1102 (ME) is the leased property and that he executed the document in

favour of Swaroopam admitting himself as lessee and that he agreed to remit the lease amount due to

the Swaroopam promptly and in case of default he will pay interest to the Swaroopam. It is also pointed

out that in Ext.R8(2) there is a recital that the land belongs to the Swaroopam.

19. This Court vide interim order dated 23.10.2012 directed the Principal Secretary to Government,

Revenue Department, to conduct an independent and fair enquiry in the matter and to submit a report

without giving room for any complaints. In the interim order this Court observed after discussing the

facts and circumstances in detail thus: " This Court is of the view that before passing final order in this

matter, an enquiry will have to be conducted regarding the alleged foul play, falsification, forgery,

committed in regard to the records maintained by the Revenue Department. I direct the Principal

Secretary to Government, Department of Revenue, Government of Kerala to conduct a comprehensive

enquiry into the matter immediately as aforesaid and submit a report covering the involvement, if any,

of respondents 8 to 20 and others. The principal Secretary shall also enquire and report specifically the

involvement of respondents 18 & 19 and the role played by them in the office of the Collectorates

concerned, Office of the Land Revenue Commissioner, Office of respondents 14 to 17, other offices and

the involvement of any others in the helm of affairs of the State". This order was passed in

W.P.(C)No.19431/2013. Similar interim order was passed in the connected W.P.(C) No.19462/2013.

20. The Secretary, Department of Revenue, submitted detailed reports. The Secretary had gone through

the original Revenue records of respective Village Offices, Taluk Offices, note files of the office of the

RDO, Trivandrum, note files of the District Collectors concerned and the files of the Commissioner of

Land Revenue. He also heard petitioners and contesting respondents. He had taken statements of the

officials of Village Offices, Taluk Offices, Collectorate and Office of the Commissioner of Land Revenue.

21. The gist of the report of the Revenue Secretary in W.P.(C).No.19431/2013 (Edappally case) is

summarised under the head 'observations' in page 26. It is stated that; "As per the documents bearing

numbers 2727/1939 [Annexure XV], 1186/1957 [Annexure XXV], 871/1960 [Annexure XXVI] and

872/1960 [Annexure XXVII] Sri. Kadir Pillai and 1st petitioner Smt. Shereefa acquired properties

admeasuring 116.000 cents in survey numbers 651/8A, 651/8B and 651/8C. Moreover as per the

judgment in O.S.No.222/1981 of the Additional Munsiff Court, Ernakulam, A.S.No.110/1987 of the

Additional Sub Court-III Ernakulam and finally High Court in S.A.No.136/1994 on 9.7.2010 categorically

stated that "the lower appellate Court was correct in holding that the properties belong to Late Kadir


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Pillai exclusively". Smt. Shareefa, Nazer & Noushad and Smt. Shimitha are the patta holders as per Rule

15 of the Transfer of Registry Rules. Copy of Thandaper number 9074 [Annexure XXXV] shows that the

Thandaper was created from Thandaper No.8826 through TR 402/83. Since 9074 belonged to Smt.

Shereefa, Thandaper 8826 can only belong to none other than Sri. Kadir Pillai. While lineage of the

properties in question is considered there is no other option but to believe that the Tax paid receipt is

genuine unless and until proved otherwise". Under the head findings and observations at page 41, the

following findings were entered by the Revenue Secretary. "The reports furnished by the Village Officer,

Thrikkakara North Village dated 24.6.2011 and 24.9.2011, the reports furnished by the Additional

Tahsildar, Kanayannur Taluk on 12.12.2011 and 11.7.2012 are partly devoid of facts available in the

Revenue records and highly misleading". It is further reported in the same page that "the Village Officer,

Thrikkakkra North Village and Additional Tahsildar, Kanayannur Taluk should be responsible for

submitting a report based on distorted information which lead to wrong decision making by superiorauthorities". "Both the Village Officer as well as the Additional Tahsildar have misinterpreted the

Revenue Rules pertaining to Settlement Register and the entires of Thandaper No. 8826 which is shown

in the name of Mr.Vallon Mani. The Thandaper No. 8826 as mentioned earlier, was originally in the

name of Mr.Kadir Pillai which became "soonya thandaper"" . "The Junior Superintendent and the

Deputy Collector (LR) in the office of the Collectorate, Ernakulam have not examined and verified the

report submitted by the Additional Tahsildar before sending their remarks to the office of the

Commissioner of Land Revenue". "However, the orders are issued by the Office of the Commissioner of

Land Revenue stating that the Thandaper numbers in the name of the petitioners should be cancelled in

accordance with law. Again at this point, Additional Tahsildar and the Village Officer have failed in

following the prescribed Rules before cancellation of the Thandaper which are in the name of the

petitioners". "Additional Tahsildar has committed procedural irregularity by not following the Rules as

contemplated in the Transfer of Registry Rules, 1966, soon after the receipt of the direction from the

District Collector, Ernakulam". I strongly see a proactive involvement of the Additional Tahsildar in this

entire issue. Under what circumstances and "pressures", she acted upon certainly needs a

comprehensive police investigation.

22. In Writ Appeal No.1861/2013 filed against the interim order in W.P.(C).No.19431/2013 directing the

Secretary to Government, Revenue Department to enquire and report, the Division Bench held that;

"We entertained a doubt as to whether the whole episode originated due to the letter issued by the

Commissioner of Land Revenue on 4.9.2012(Ext.P26) while the Commissioner, Land Revenue had taken

a diametrically opposite view in Ext.P18 order dated 4.1.2012. Going by any interpretation, the


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Commissioner of Land Revenue had no jurisdiction at all to issue a letter like Ext.P26, which according to

us created the whole difficulty in the matter and dragged the parties to various courts and forums and

that the Commissioner of Land Revenue exercised a jurisdiction not vested in him under law. The

Division Bench found that cancellation of Thandaper was done by, or as directed by an authority, which

had no power at all to do so, after that authority found in Ext.P18 order that pending decision of the civil

court, the Department of Revenue cannot intervene in the matter". It was held that: "Tinkering with

entries in the Revenue records would be an effective tool in the hands of land mafia and grabbers of

immovable property. The Revenue officials should not aid such land grabbers and land mafia, by

arrogating to themselves jurisdiction which they do not possess". The Division Bench also noticed that;

"In recent years several instances of land grabbing at the instance of land mafia were reported and that

in such instances, they take the aid of Revenue records and the changes made in such records to suit

their convenience. It was observed that the rights of the rightful owners would be defeated in suchtransactions, but the rights of the innocent purchasers also would be defeated".

23. Exts.P28 to P32 are the complaints lodged by the petitioners before the highest officers in the State

in W.P.(C). No.19431/2013. In the complaints it is specifically stated that the respondents 8 to 13 and 20

in collusion and conspiracy with respondents 18 & 19, bribed, compelled and influenced respondents 14

to 17 to forge and fabricate false documents, reports and records including concoction of false

Thandaper in the name of Vallon Mani for the purpose of defeating the title of the petitioners over 116

cents of valuable land situated in Thrikkakkara North Village in Sy.Nos.651/8A, 8B & 8C at

Pathadippalam. It was also stated that respondents made an attempt to defeat the title, to cause undue

enrichment for respondents 8 to 13 and 20 through misuse and abuse of official position and powers of

respondents 14 to 19. Serious allegations are raised against the Gunman of the Chief Minister of State of

Kerala. It is alleged that the 18th respondent is the Gunman in the office of the Chief Minister of Kerala

and his personal influence in the highest political and administrative echelons of Government of Kerala

is known to all persons. It is stated in the complaints and in the writ petition that though numerous

complaints were lodged before the highest officers of the State, even today, not even a crime is

registered and no investigation has been conducted or initiated against respondents 8 to 20. In the writ

petition it is stated that on the face of such tremendous political influence filing of an ordinary

complaint before the police will be absolutely useless as ordinary police officers, even up to the level of

Commissioner, will be helpless in the case of notoriety, influence and power wielded by the 18th

respondent.


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24. The connected writ petition namely, W.P.(C). No.19462/2013 was filed for similar reliefs on the basis

of similar allegations. The petitioners claimed title over 12.27 acres of land in Sy.Nos.1279, 1280, 1281

to 1288 of Kadakampally Village, Thiruvananthapuram Taluk. Petitioners are aggrieved by the alleged

willful inaction on the part of the official respondents 1 to 5 to take action in the matter of criminal

offences committed by respondents 6 to 32 by forging and fabricating false Thandaper Nos.1602 and

3587 of Kadakampally Village in the name of Abdul Rehman Kunju, the predecessor of respondents 8 to

25, and the creation of false and fabricated documents including sale deeds in respect of 12.27 acres of

land in Sy.Nos.1203, 1204, 1232, 1236, 1238, 1240, 1241, 1270, 1279 to 1288, 1388, 1409 of

Kadakampally Village. The allegation is that respondents 8 to 25 had manipulated and created false

Thandaper No.1602 through forgery and falsification of records in collusion with respondents 29 to 31. It

is also alleged that respondents 6, 7 & 26 to 28 are new entrants in the conspiracy, forgery, false

creation of Thandaper No.3587 and that due to the tremendous political influence of respondent No.26,the Gunman in the Office of the Chief Minister of Kerala, the official respondents are not taking any

action whatsoever. It is stated that not even a crime has been registered so far in spite of the very

serious nature of the allegations and in spite of the evidence on record which conclusively proved the

forgery, fabrication and falsification of records indulged by respondents 6 to 28 and 32 for the purpose

of knocking off 45.50 acres of property in the survey numbers mentioned above which belongs to

almost 170 people including the 12.27 acres of land which stood in the name of the petitioners.

25. The petitioners in W.P.(C).No.19462/2013 traced their title to the property as follows: An extent of

12.27 acres of land in the above mentioned survey numbers was obtained by the petitioners as per

registered Otti Transfer Deed No.2882/1969 of SRO, Thiruvananthapuram and Certificate of Purchase

issued in S.M.No.12/1980 of Land Tribunal, Thiruvananthapuram. The properties were mutated to the

name of the petitioners and they are paying the land tax eversince 1980. Petitioners produced copies of

Certificate of Purchase, Otti Transfer Deed of 1969 and Land Tax Receipts dated 21.5.2008 which are

marked as Exts.P1 to P4 respectively. According to the petitioners, the land had originally belonged to

the jenmies, M/s.Kuvakara Madom as per the settlement register which was maintained during the

regime of Maharaja of Travancore. They had created tenancy in favour of the joint family of one

Kanakku Padmanabha Pillai and Kanakku Madhavan Nair by way of Otti and Kuzhikkanam. Petitioners

produced copy of relevant pages of settlement register as Ext.P5. Paragraph 6 of the writ petition

narrates the devolution of right in favour of the petitioners. Paragraph 6 reads as follows: "6. As per

Partition Deed No.2509/1101 ME, of Thiruvananthapuram SRO, the said lands, along with Otti liability,

devolved upon Shri.Madhavan Nair. In the meanwhile, the jenmom rights in the property had been


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brought to sale in O.S.No.38/1120 on 15.11.1950 and was purchased by Mr.Narayana Potti Shambhu

Potti in court auction. On 7.8.1951, the sale was confirmed in his favour. Delivery of possession was

obtained through process of court on 19.8.1954. The said Madhavan Nair and his wife transferred the

tenancy rights over the said property to the name of Shri.Vasudevan Pillai and Vasu Pillai, nephews of

Krishna Pillai, as per registered Otti No.2313/1960, Thiruvananthapuram SRO. Later, the jenmom rights

have been purchased by Shri.K.P.Ramachandran Nair, father of the petitioners from the legal heirs of

Narayana Potti Shambhu Potti as per registered sale deed No.2019/1968 of Thiruvananthapuram SRO.

He paid the balance of mortgage amount as directed by the Sub Court, Thiruvananthapuram in

O.S.No.94/68 and released the mortgage and paid tax in his own name. Thereafter, the petitioners had

purchased the otti rights in the property from the aforesaid Vasudevan Pillai and Vasu Pillai, as per

Document No.2882/69 and later purchased the jenmom rights also as per proceedings in

S.M.No.12/1980 dated 14.5.1980 and Certificate of Purchase dated 8.8.1980. They had effectedmutation of the properties to their own names also and paying tax thereon in T.P.No.10150". Out of

12.27 acres, the petitioners sold 4.38 acres with various third parties. A perusal of the encumbrance

certificate received by them shows that the remaining 7.40 acres of land is mortgaged by the petitioners

to the Canara Bank, Thiruvananthapuram. It is pleaded that to the utter shock and surprise to the

petitioners it is seen from the encumbrance certificate that in addition to the various transactions

entered into by the petitioners, some agreements were seen registered in respect of Exts.P1 to P4

properties in favour of respondents 6 & 7 fraudulently and without any authority, starting from

14.3.2012 onwards with respondents 8 to 25 fraudulently claiming title to the property and purporting

to execute agreements for sale of the property to the name of respondents 6, 7 and others. It is

contended that respondents 8 to 25 have no title or ownership over the subject properties and no

possession also. The sale agreements have been registered by respondents 8 to 25 in favour of

respondents 6 & 7 referring to a partition deed said to have been executed in the family of respondents

7 to 25 in 2006 as partition deed No.2677/2006 of Karakulam SRO. The sale agreements have been

executed with reference to the said partition deed and Thandaper No.3587 of Kadakampally Village. It is

stated in the writ petition that the 15th respondent had in collusion with the other party respondents

created a sale deed in favour of one Praveen executed by his mother Fathima, and thereafter, arranged

re-sale of the property having an extent of 1.47 acres in Sy.No.1270 and 15 cents in Sy.No.1282 of

Kadakampally Village to his own name as per sale deed No.2617/2008 of Thiruvananthapuram SRO. It is

contended that later, through fraud, he obtained mutation of the property to his own name. Various

complaints have been filed before the revenue authorities. The copy of the partition deed issued by the


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State Public Information Officer under the Right to Information Act reveals that page No.9 is a

fabrication and insertion, which is typed out in a different font and has obviously been inserted in the

document at a subsequent stage, which could have been only at the time of fabrication just prior to the

submission before the revenue authorities in connection with mutation of the properties. In the copy of

the partition deed obtained by the petitioners from the revenue authorities, it is noticed that the 9th

page is significantly different; that the font of the print is different and Thandaper No.3587 is not seen

included among the Thandaper numbers mentioned in the said document and the signatures at the

bottom of the page are also different, obviously, pointing to the fact that Ext.P7 partition deed produced

along with application of 15th respondent for mutation of properties is a fabricated and forged one. The

petitioners also produced copy of the partition deed obtained under the Right to Information Act as

Ext.P8. It is seen that page No.9 in Exts.P7 & P8 are significantly different, clearly evidencing the

fabrication which has been carried out by the signatories therein for the purpose of applying formutation of the properties by the 15th respondent. It is also complained that the entry of Thandaper

No.3587 is obviously a fabrication and forgery in the name of deceased Abdul Rehman Kunju,

predecessor of respondents 8 to 25. It is contended that the 32nd respondent has created false

documents, false Thandaper number involving 45.54 acres of prime land in collusion with respondents 6

to 28 and that a mere perusal of Ext.P9 Thandaper Register will clearly show the clandestine manner in

which it has been prepared. It is also stated that the predecessors of respondents 8 & 25 had in an

identical fashion managed to revive and recreate a 'zero' Thandaper with 1602 and to get included

therein several acres of property comprised in Sy.Nos.1203, 1204, 1240, 1241, 1270, 1409, 1279, 1290

and 1388 of Kadakampally Village and created several false documents. Petitioners allege that Ext.P7

partition deed No.2677/2006 is a fraudulent document. It is registered at Karakulam SRO, far away from

Kadakampally and Thiruvananthapuram SRO. For the purpose of registration of the document at

Karakulam SRO, one cent of land is added as an item among the 19.96 acres in Kadakampally Village.

The Principal Secretary also reported that the said partition deed produced by the party respondents

before the Tahsildar for the purpose of mutation to their name is a clear forgery and fabrication. Ext.P9

is the copy of thandaper No.3587. The Revenue Secretary reported that the original thandaper holder of

3587 was one Krishna Panicker and the thandaper became blank only on 16.8.1984. Abdul Rehman

Kunju passed away on 20.1.1978, much earlier and obviously the present thandaper 3587 is said to be a

forgery and fabrication, as a dead person could not have come back to submit an application for

mutation. The Revenue Secretary also reported that there is no reference to any proceedings, as per

which property was brought into thandaper No.3587 from a parent thandaper. This is inevitable if the


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thandaper had been genuine. The remarks column would show that thandaper is brought into existence

on the basis of a reference to a decree in O.S.No.85/1971. As I said earlier, the said suit itself had been

withdrawn and as such there cannot be any decree directing creation of new thandper. The role of

involvement of outsiders and private individuals in creation of false thandaper No.3587 is also reported

by the Revenue Secretary in paragraph 10 at page 37 of his report. In 2005, four documents were seen

executed at SRO, Varkala in respect of 5.50 acres of land in Sy.No.1285 & 1284 of Kadakampally Village

by respondents 9 to 15 to the names of their own family members, referring to a false thandaper

No.1602. All the documents namely, document Nos.2833, 2834, 2835 and 2836 of 2005 are created on

the same day in respect of properties in Kadakampally Village in Varkala SRO instead of

Thiruvananthapuram SRO. The Principal Secretary reported that thandaper No.1602 was one which was

pasted just after 1601 and that appears to be forged one and it needs to be investigated by an

appropriate agency. The learned counsel for the petitioners in Kadakampally case contend that thetransfer of registry to the name of the 15th respondent is illegal, that thandaper No.3587 shows that it is

a fake one, as the name holder did not have possession and as connected documents did not have the

said thandaper number and that Ext.P8 (Ext.P7) documents of 2677/2006 and Ext.P7 partition deed is a

fabricated one and liable to be cancelled and that all these matters should be investigated by an

appropriate agency to unravel the commission of offences.

26. The foul play and manipulations alleged were brought to the notice of revenue authorities by filing

complaints. The matter was investigated by the Sub Collector, Thiruvananthapuram. He passed an order

setting aside the mutation effected in four cases and recommended disciplinary action against the

Village Officer concerned and respondents 29 to 31. No action was initiated against respondents 8 to 25

or 29 to 31 under criminal law. It is alleged that Thandaper No.1602 had been recreated falsely in the

name of very same Abdul Rehman Kunju in whose name new Thandaper No.3587 has been created

through the same modus operandi, referring to the non- existent decree in O.S.No.85/1971 and a non-

existent Thandaper. Petitioners have also submitted complaints before respondents 1 to 5. They are

deeply aggrieved as there has been no action taken even in spite of clear and categoric findings in

Ext.P11 and the obvious evidence available regarding the fraud, forgery and falsification of records with

regard to Thandaper No.3587 of Kadakampally Village. The petitioners allege that the obvious and

patent inaction on the part of the authorities is obviously due to the high position of the 26th

respondent and his connections arising from having been the Gunman in the office of the Chief Minister

and consequential connections available to him which he is using to delay and subvert the investigation

in the cases.


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27. Petitioners further contend that since the investigation required is very wide, complicated and on

account of the high social and official status and the political influence and connection of the accused,

an ordinary remedy by way of complaints before the police or before the authorities will not suffice and

will not serve any purpose. The writ petition is filed highlighting the fabrication of false records,

submission of knowingly false, fraudulent and malicious reports by respondents 29-32, at the instance

of, and instigation of, respondents 6 to 28 with the 26th respondent misusing and abusing his official

capacity and influence as Gunman in the office of the Chief Minister and the facilities available therein

including telephone, for the purpose of causing officers in the subordinate level of Revenue Department

to fabricate and forge documents and to raise a false claim to the valuable property belonging to the

petitioners. It is submitted that though the petitioners submitted several complaints before the Deputy

Collector (Vigilance), South Zone and before respondents 1 to 5 about serious offences committed

under the provisions of the Prevention of Corruption Act and various provisions of Indian Penal Code, noaction was ever taken by respondents 1 to 5 and the revenue authorities. Copies of various complaints,

reports and representations submitted before the police and revenue authorities are produced in the

writ petition.

28. The Deputy Collector, Vigilance, South Zone has conducted a detailed enquiry and prepared a report

on 1.7.2013, a copy of which is marked as Ext.P22. In Ext.P22 it is reported that the 'zero' Thandaper

No.3587 had been written in the name of Abdul Rehman Kunju in respect of 45.54 acres of land even

without possession or title documents. The creation of the false Thandaper No.1602 and the

cancellation thereof is also noticed in the report and as also the creation of a sale deed in favour of the

15th respondent, mutation of the properties to his name, without compliance and in violation of the

Transfer of Registry Rules in collusion with 32nd respondent, the then Village Officer. Various leading

newspapers and medias reported the said facts; newspaper reports are marked as Exts.P24 to P30.

Exts.P36 to P44 are the newspaper reports in Edappally case.

29. It is submitted that the disputed property having an extent of 45.45 acres in Kadakampally Village is

worth at least Rs.250 Crores. The properties are situated within the Thiruvananthapuram Corporation

limits.

30. In Kadakampally case, belatedly, the revenue authorities have moved as per Exts.P22 and P23

orders, but, no action was seen seen taken to investigate the criminal offences committed by the party

respondents and others or to initiate criminal prosecution on account of the alleged illegal influence of

the 26th respondent and the money power and influence of respondents 6 to 25. Complaints were filed


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alleging serious crimes before the Circle Inspector of Police, Thiruvananthapuram dated 18.12.2012,

before the Commissioner of Police dated 14.2.2013 & 10.4.2013 and before the Minister for Home

dated 9.7.2013 and before respondents 1 to 4 on 9.7.2013. Even now, it is alleged that there is no

response from the authorities. Copies of the complaints are marked as Exts.P31 to P34.

31. Petitioners have furnished telephone numbers of respondents 6, 26 & 28 in paragraph 34 of W.P.(C).

No.19462/2013. It is alleged that the telephone records and voice tapes of respondents 6 to 32 will

reveal the collusive and conspiracy between those respondents and the fraud and offences committed

by them.

32. The 4th respondent, the Director, Vigilance and Anti Corruption Bureau, filed a detailed statement in

Kadakampally case. Counter affidavits were also filed by respondents 6 & 7, respondents 10, 13, 14 &

15, respondents 26 & 27, 28, 33, 35, 37 & 38 in W.P.(C).No.19462/2013. The 36th respondent filed astatement.

33. In the statement filed by the 4th respondent it is inter alia stated that the President, Kadakampally

Village Land Owners' Action Council filed a complaint dated 23.2.2013 before the Government alleging

very same criminal acts as mentioned in the writ petition. The Government had initiated vigilance

enquiry as per order dated 23.5.2013 and the same is pending. It is also reported that more than 150

families are residing in the land who claim title as per the documents held by them and that they have

also paid land tax up to 20.12.2013. It is also stated that for widening of Aamiyazhanchan Thodu, a

portion of the above 45.50 acres of land was acquired and compensation was given to the persons now

in possession by the land acquisition authorities. It is stated that inclusion of land in dispute in

Thandaper No.3587 was obtained illegally. It is reported that the reasons for effecting mutation of 1.47

acres of land in the name of Ashraf (R15) also requires to be enquired into detail. It is reported that the

scope of vigilance enquiry is limited to the involvement of Government Officials into the alleged illegal

acts alleged to have been done by them to help the persons claiming to have title over the property.

34. All the party respondents denied the allegation of commission of any offence under the IPC and PC

Act. All of them contended that they have not fabricated any documents whatsoever and denied the

claim of title of the petitioners. The contesting party respondents claimed that they along with others

are having absolute ownership rights over 45.54 acres of land comprised in various survey numbers of

Kadakampaly Village and that the present claims are cooked up for political gains motivated at the

behest of politicians for media coverage and cheap publicity. It is also stated that the allegations were


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part of civil dispute and the same is pending in O.S.No.85/1971 before the Principal Sub Court,

Thiruvananthapuram. It is stated that receiver appointed by the court in the civil suit has already taken

possession of the properties, that certain items of the properties scheduled to the plaint has already

taken possession by some of the sharers and the remaining properties are under the process of being

taken over by the receiver.

35. In the counter affidavit filed by respondents 10, 13 & 14 it is stated that the allegations raised by the

petitioners were investigated by Crime Records Bureau, Thiruvananthapuram as Crime No.47/2007 of

Varkala Police Station. Copy of the Final Report in Crime.No.47/2007 is produced as Ext.R10(e). In the

Final Report it is stated that the disputed property is in the possession and enjoyment of the

complainants and that they are remitting the tax. It is further reported that the grievance of the

complainants can be ventilated before the civil court. It is for the petitioners to approach the civil court

and establish their title over the properties. Stating that the allegations raised are of civil nature the

Dy.S.P, Crime Records Bureau submitted a refer report before the Judicial First Class Magistrate Court,

Varkala. The said complaint was filed by some other persons who claim title over the properties in

different survey numbers in Kadakampally Village. The facts stated are in respect of crime registered in

2007 and not about the present crime.

36. The 15th respondent is A.M.Ashraf. Respondents 19 to 25 are his sisters. He filed counter on behalf

of respondents 19 to 25 as well. In the counter they claimed title to the disputed property of 45.54 acres

of land. The learned counsel for respondents 16 to 21 Sri.Vakkom Vijayan support the case of the 15th

respondent.

37. In the counter affidavit filed by the General Manager, Vodafone, the additional 36th respondent, it is

inter alia stated that as per the licence condition this respondent needs to maintain records pertaining

to call details and the like exchanged on the net work for one year and same needs to be destroyed

thereafter unless otherwise directed by Government of India (Clause 41.17 of the licence conditions). It

is stated that from the achieves they could retrieve and retain data base for a period of 12 months

preceding the intimation and communication of the order. It is stated that all the call details and all the

short message details without the text message are maintained for the above period as prescribed by

Government of India. There is no voice recording of the customers as it is not permitted by law and due

to technical non-feasibility as well. It is stated that in compliance of Section 5(2) of the Indian Telegraph

Act and the Indian Telegraph Rules 1951 as amended, the appropriate authorities specified therein can

by order intercept or detain or retrieve and enable voice recording through their own system. It is also


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stated that the call particulars and message particulars without any text of the message for the period of

one year had been retained in compliance of the orders of this Court and future call details and message

details without text of the message, shall also be retained until further orders from this Court.

38. In the counter affidavit filed by the 38th respondent, Divisional Engineer (LEA), Office of the Nodal

Officer, BSNL, Ernakulam it is inter alia stated that the call details of BSNL customers as given in

paragraph 34 of the writ petition are available only with effect from 1.11.2012 as on 6.11.2013 and have

been preserved. In the counter affidavit it is also marked the mobile numbers with address as per BSNL

system records, the CDR of which have been preserved with effect from 1.11.2012.

39. The findings and observations in the report dated 15.11.2013 of the Revenue Secretary in

W.P.(C).No.19462/2013 (Kadakampally case) is summarised as follows: Paragraph 7B at page 28

reported that "T.P.No.1602 has been created before the execution of the documents on 29.6.2005"."T.P.No.1602 was one which was pasted just after T.P.No.1601 with the remittance details of Thandaper

No.1601 (Annexure XVII) as observed from the office copy of the Land Tax Receipt (Annexure-XVIII). In

other words, T.P.No.1602 appears to be a forged one as rightly alleged by the petitioner". "Copy of the

partition deed No.2677/2006 submitted before the Tahsildar, Thiruvananthapuram by the 15th

respondent is a fabricated document (page 33)". "Unless and until otherwise proved, it can be observed

beyond any doubt that the forged document was submitted by A.M.Ashraf (15th respondent) himself

and how and when he forged the same needs to be investigated by appropriate agency". "The suspected

T.P.No.3587 in the name of Abdul Rehman Kunju did not figure in any of the registered documents

mentioned above, except the forged one submitted by Ashraf along with his petition. This may also be

investigated further by an appropriate agency to understand the mysterious linkages". "In the document

No.1003/2012 dated 9.3.2012 (Annexure- XXVI) the seller is Smt.Suhra Beevi and buyers are C.K.Jayaram

and K.H.Abdul Majeed, who are respondents 6 & 7 respectively. In this document T.P.No.3587 is

mentioned. The recitals in the documents reveals that the buyers were only the land brokers who would

help Suhra Beevi to alienate 11.75 acres of land in item No.I; 45.00 cents in item No.II, 2.00 acres in

item number III and 15.00 cents in item number IV. It is found that the said document is defective and

how such a document got registered at the Principal SRO, Thiruvananthapuram as per Registration Act,

1908 warrants further investigation". Paragraph 10 at page 37 reads as follows: (page 35-36) "a. There

has been consistent effort from respondent No.15, Sri.A.M.Ashraf and others since 2008 to mislead

revenue authorities by presenting documents which were not valid. b. It is noticed that, over the period

the Revenue officials and the Registration officials have crated false Thandaper No.3587 and deeds in


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the name of Sri.Abdul Rahman Kunju. c. The fabrication was in favour of a deceased person may be to

avert action from authorities if caught red handed. d. It is also seen in the Village records that, the hand

writing in the records do not tally with the handwriting of the then Revenue officials present. The then

Village Man, Mr.Sujan has orally mentioned that "one private individual, Mr.Harikumar, S/o.Subbaiya

Pillai was a regular visitor to the Village Office who had access to Village records". This was confirmed by

one Mr.Satish Kumar who was a clerk at the office of revenue Division Officer, Thiruvananthapuram

during the period. This may also be further investigated by an appropriate agency." On a perusal of the

whole issue the following things can be noticed: "A. the Thandaper No.3587 is seen created after 2008

as it was lying blank (Soonya Thandaper) since 1984. B. Original Thandaper holder of 3587 was

Sri.Krishnapanicker, S/o.Issakki Chami Panicker of Thoppuvilakathu Veedu, Kannamoola, which became

blank on 16.8.1984 pursuant to PV 10056/84. C. Before 3587 was assigned to the above person, it was in

the name of Sri.Sankaran Madhavan of Karikkakam. D. At least for the last 72 years, Thandaper No.3587was not in the name of current Thandaper holder (suspicious) Sri.Abdul Rahman Kunju." Page 42-43

under the head findings and observations the following findings are recorded. "T.P.No.1602 is fabricated

and should be cancelled. From T.P.No.1602, other T.P.Nos.34722, 34846, 34847, 34848 were created

which were subsequently cancelled by the Sub Collector, Thiruvananthapuram by order dated

27.6.2009. T.P.No.3587 is fabricated and should be cancelled. T.P.No.3587 is seen created after 2006 in

the name of the person who demised in 1979. The officials from the Village Office, Kadakampally have

created this Thandaper surely in connivance with the outsiders. This aspect needs to be enquired in

detail by an appropriate investigating agency. However, the above Thandaper Number can be cancelled

straightway by the RDO, Thiruvananthapuram, since there are no claimants for this Thandaper Number.

At least for the last 72 years, Thandaper No. 3587 was not in the name of current Thandaper holder

Sri.Abdul Rehman Kunju. The lands which are currently included in Thandaper No. 3587 was never in

possession of either Abdul Rehman Kunju or his legal heirs. The lands which are currently included in

Thandaper No.3587 was never in possession of the Advocate Receiver, Sri.P.K.Thomas, who was

appointed as per the direction in O.s.No.85/1971. The creation of Thandaper bearing No.3587 is not as

per Rules contemplated in Rule 3(b)(i) and 14(1) of the Transfer of Registry Rules. But Thandaper

No.44954 which is created from 3587 is illegal and the action of the then Village Officer

Sri.P.M.Subramanian Pillai is against Rules. Page No.9 of the document submitted by the 15th

respondent before the Tahsildar is a fabricated one. It is different in Sub Registrar office copy and the

copy submitted before the Tahsildar, Thiruvananthapuram for effecting Transfer of Registry. Copy

submitted before the Tahsildar is by 15th respondent Ashraf. He alone can be held responsible for


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fabricating page No.9 of the document unless and until proved otherwise. Cancellation of documents, if

any, can be done only through a competent civil court. This aspect should also be investigated by an

appropriate investigating agency".

40. On the basis of the news item appeared on 8.5.2013 and continuously thereafter that there was an

attempt to grab 45.50 acres by creating false documents, Government had ordered vigilance enquiry.

The Department after due enquiry found more or less the same facts and recorded findings similar to

the report submitted by the Revenue Secretary in W.P.(C). No.19462/2013.

41. The Secretary, Revenue, Government of Kerala, in both comprehensive enquiry reports in the two

writ petitions entered clear and unambiguous findings in a fair and objective manner. The Secretary

examined the allegations raised by the petitioners and respondents, perused the revenue records, other

documents and depositions of officials and others. The reports established the fact that the revenuerecords maintained in both villages were fabricated, new Thandaper records were created by the

revenue officials fraudulently in conspiracy with some of the respondents and others leading to social

chaos. It is reported that the circumstances leading to the mischiefs, the persons involved behind the

fabrication and the involvement of revenue officials can be known by a deeper investigation by an

appropriate agency. 42. The extent of property involved in Kadakampally Village is 45.54 acres and in

Edappally North Village is 1.16 acres of land (actual extent after re-survey is identified as 99 cents). The

reduction in the extent is disputed and is the subject matter of complaint pending before the revenue

authorities. The enquiry report reveals about the manipulations, creation of false Thandaper, forgery

and falsification of records in collusion with the party respondents. Both properties are lying within the

Corporation limits of Thiruvananthapuram and Cochin. On a moderate estimate, it is averred that the

properties are worth more than 250 Crores and 25 Crores respectively. 150 persons are in possession of

the disputed extent of 45.54 acres in Kadakampally Village including the petitioners. They are claiming

title by virtue of different title deeds and they are paying land tax. A portion of the said properties was

acquired by the Government. The present land owners claimed compensation and compensation was

granted to them. There was no claim by the contesting respondents or by the receiver appointed in the

suit O.S.No.85/1971. The Revenue Secretary also reported that the lands included in Thandaper

No.3587 was never been in the possession of the Advocate Receiver Sri.P.K.Thomas. He was appointed

as receiver in O.S.No.85/1971. Ext.P41 is the true copy of the relevant pages of Kerala Gazette dated

27.5.1980 which is a notification issued under Section 3(1) of the Kerala Land Acquisition Act pertaining

to the acquisition of properties in Sy.Nos.1270, 1271, 1273 and 1274 and other survey numbers which


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form part of 45.54 acres. Ext.P42 is the sale deed executed on 9.5.1983 by the petitioners in favour of

George Kutty Thomas. Ext.P43 is the copy of the letter dated 29.5.2010 issued by the Special Tahsildar

(LA), Thiruvananthapuram. Ext.P44 is the copy of the judgment dated 5.2.1998 in L.A.R.No.110/1990 of

the II Additional Sub Court, Thiruvananthapuram. The claimants are found to be the actual owners of

the property in possession of the acquired land including the assignees from the petitioners. No person

claimed title, possession or compensation under Abdul Rehman Kunju. The acquisition was initiated

against the owners who are the persons in the possession of the properties. Ext.P45 is the notice under

Section 9(3) issued in L.A.C.No.116/1980 and Ext.P46 is the award dated 23.2.1981 in L.A.C.No.116/80.

Ext.P47 and P48 are also relating to the same acquisition. None of the respondents nor the receiver

have submitted any claim or objection in the land acquisition proceedings or sought to claim

compensation. The acquired land now vested with the Government consequent to acquisition having an

extent of 1.5 acres in the disputed survey numbers is also included in the fraudulent Thandaper No.3587alleged to have been created by respondents 6 to 32 through fraud and collusion.

43. It is alleged by the petitioners that the 15th respondent in Kadakampally case in collusion with the

other party respondents have created a sale deed in favour of one Praveen and arranged for re-

assignment of the said land having an extent of 1.47 acres in Sy.No.1270 and 15 cents in Sy.No.1282 of

Kadakampally Village to his own name as per sale deed No.2617/2008 of Thiruvananthapuram SRO. He

obtained mutation of this property to his name. In the said context, the petitioners applied for copy of

the partition deed No.2677/2006 dated 19.8.2006. In page No.9 of the said document Thandaper

Number is inserted in the 3rd line from the bottom. From the reports it is seen that page No.9 is a

fabrication and insertion which is typed out in a different font and has obviously been inserted in the

document at a subsequent stage which could have been only at the time of fabrication just prior to the

submission of documents before the revenue authorities in connection with mutation. Ext.P7 is the copy

of the partition deed No.2677/2006 dated 19.8.2006 issued from the Taluk Office by the State Public

Information Officer under the Right to Information Act. Petitioners obtained another copy of the

partition deed. The said copy is marked as Ext.P8. Page No.9 in Ext.P8 is significantly different, in that

the font of the print is different and Thandaper No.3587 is not seen included among the Thandaper

numbers mentioned in the said document and the signatures at the bottom of the page are also

different, pointing out to the fact that earlier document produced along with application of 15th

respondent for mutation of properties was a fabricated and forged one. Ext.P9 is the copy of the

statement of the Additional Tahsildar in W.P.(C).No.8720/2012 and copy of the Thandaper register of

T.P.No.3587. The Thandaper register shows that T.P.No.3587 was a '0' Thandaper. There was no land


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left in the said Thandaper which has been recreated subsequently. In the counter affidavit filed on

behalf of the Government in W.P.(C).No.8720/2012, filed by the mother of the 15th respondent, it is

stated that the petitioner therein did not have possession or title to the properties and that no land

involved in the decree of O.S.No.85/1971 stand in the name of the plaintiff in Kadakampally case as per

Village records and that the properties were not in her possession. It was also stated that the petitioner

therein is not the land holder of the plaint schedule property. Ext.P15 is the copy of the counter

affidavit.

44. Learned counsel for the 15th respondent Sri.Balagovindan contended that the property having an

extent of 45.54 acres originally belonged to one Subramanya Rue of Koovakkara Madom, that he

received consideration of Rs.2,51,967/- from Kochu Pillai Moosa, that Subramanya Rue executed a

document as OttiKuzhikkannam in favour of Kochu Pillai Moosa mortgaging the entire extent. Kochu

Pilla Moosa is the great grandfather of the mother of the 15th respondent. It is submitted that the

document of 1097, marked as Ext.R15(b), being an OttiKuzhikkannam deed as defined under the Land

Reforms Act, his predecessors became the cultivating tenants since the properties were in the

possession of receiver with effect from 28.5.1969. According to him, at the time of commencement of

Land Reforms Act, the properties were under custodia legis and that the claim of the petitioners in

respect of the properties mentioned in Ext.R15(b) is therefore misconceived. Similar contentions were

raised by respondents 10, 13 and 14. It is also pointed out that in the Pauper Suit No.13/1960, later

numbered as O.S.No.67/1961 on the file of the Sub Court, Thiruvananthapuram and subsequently

transferred to the District Court and re-numbered as O.S.No.4/1965, a decree was passed. A copy of the

decree is marked as Ext.R15(d). It is contended that the entire mortgage along with Kuzhikkanam right

got transferred to the predecessor of the 15th respondent. O.S.No.4/1965 was filed in the year 1960 for

partition as a Pauper Suit. Subsequently, another suit for partition was also filed between the members

of the family of the contesting respondents before the Sub Court, Attingal as O.S.No.14/1969. In the said

suit a receiver was appointed for plaint 'A' and 'B' schedule items. Properties in dispute are also

scheduled in the suit claiming title by virtue of Ottikuzhikkanam deed of 1097. It is submitted that on the

basis of the order of the Sub Court in O.S.No.14/1969 Adv.Sri.T.M.Mohammed Shafi was appointed as

the receiver-cum-commissioner. Later the present receiver Sri.P.K.Thomas assumed charge.

45. Ext.R15(b) is the copy of the document executed by Subramanian Rue in favour of Kochu Pilla Moosa

in the year 1097. The judgment in A.S.No.82/1973 on the file of this Court arising from the judgment in

O.S.No.85/1971 on the file of the Principal Sub Court, Thiruvananthapuram is produced and marked as


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Ext.P10. On a verification of Ext.P10 judgment it is seen that the said suit has been withdrawn as per the

judgment dated 20.2.1980 in A.S.No.82/1973. Therefore, it is evident that no decree exists in

O.S.No.85/1971. O.S.No.85/1971 was a suit for partition. O.S.No.4/1965 was filed by one of the

members of the tharavad, who is the 12th defendant in O.S.No.14/1969. It is stated that

O.S.No.85/1971 was compromised out of court due to the influence of the karanavar and that the suit

was withdrawn by the other members of the tharavad. The petition for appointment of receiver in

O.S.No.14/1969 (O.S.No.85/1971) was allowed and a receiver was appointed for the schedule items

which are not in the possession of any of the parties to the suit. There was no occasion for the receiver

appointed in O.S.No.85/1971 to take possession of the present disputed property. The contesting

respondents failed to produce the so called report of the receiver taking possession of the property. In

the facts and circumstances of the case, since the properties are in the po

n-a-shareefa-vs-state-of-kerala

Documents

writ petitioners

son of kunjan marakkar

favour of kunjan marakkar

isthe wife of respondent

e n tboth writ petitions

son of aliyar kunju

thehusband of writ petitioner

stateof kerala