IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 6TH DAY OF JULY 2022 / 15TH ASHADHA, 1944
WP(C) NO. 20294 OF 2017
PETITIONER/S:
SAFARULLA KHAN
S/O.SULTAN KANNU,
T.C.49/47, CHANDAVILAKOM VEEDU,
AYIRANIMUTTOM VILLAGE, THIRUVANANTHAPURAM.
BY ADVS.
SRI.V.G.ARUN (K/795/2004)
SMT.INDULEKHA JOSEPH
SRI.NEERAJ NARAYAN
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY CHIEF SECRETARY,
THIRUVANANTHAPURAM-695 001.
2 DISTRICT COLLECTOR
THIRUVANANTHAPURAM-695 001.
3 REVENUE DIVISIONAL OFFICER
THIRUVANANTHAPURAM-695 001.
4 TAHASILDAR
NEYYATTINKARA TALUK, THIRUVANANTHAPURAM-695 121.
5 ADDITIONAL TAHASILDAR
NEYYATTINKARA TALUK, THIRUVANANTHAPURAM-695 121.
6 TALUK SURVEYOR
TALUK OFFICE, NEYYATTINKARA TALUK,
THIRUVANANTHAPURAM-695 121.
7 ABIDA BEEVI
EKM HOUSE, ANADMURI, THENNOOR VILLAGE,
NEDUMANGADU TALUK-695 541.
W.P.(C)No.20294 of 2017
2
8 SHAMY SAMAD
D/O.ABIDA BEEVI, EKM HOUSE, DAIVAPURA P.O.,
PERINGUMMALA,NEDUMANGADU TALUK,
THIRUVANANTHAPURAM-695 563.
9 VILLAGE OFFICER
VIZHINJAM VILLAGE, VIZHINJAM
P.O.,THIRUVANANTHAPURAM-695 521.
BY ADVS.
SRI.BENOJ C AUGUSTIN
SRI.U.M.HASSAN
SMT.S.LEKHA
SMT.P.PARVATHY
SRI.RAFEEK V.K.
SRI.SAIJO HASSAN
SRI.VISHNU BHUVANENDRAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 06.07.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C)No.20294 of 2017
3
JUDGMENT
Dated this the 6th day of July, 2022 S.Manikumar, C.J.
Being aggrieved by Exhibit P4 order passed by the Kerala Lok Ayukta in Complaint No.725 of 2017-A dated 03.04.2017 directing the Additional Tahsildar, Taluk Office, Neyyattinkara and the Village Officer, Vizhinjam Village to appear in person and against Exhibit P7 final order made in the above complaint dated 05.06.2017 and Exhibit P5 proceedings of the Tahsildar (Survey), Neyyattinkara dated 24.05.2017, instant writ petition is filed for the following reliefs:
"i) a writ of certiorari or such other appropriate writ or direction calling for the records resulting in Exhibits P4, P5 and P7 and set aside the same.
ii) a writ of mandamus or such other appropriate writ or direction commanding the 4th, 5th and 9th respondents not to initiate any action to cancel the registry is favour of the petitioner and other sharers with respect to 1 Acre 69 cents of property comprised in Survey No.399/8 corresponding to Re Sy No.93/5 of Block No.14 of Vizhinjam Village till the disposal of the suit."
2. Exhibit P4 order dated 03.04.2017 passed by the W.P.(C)No.20294 of 2017 4 Kerala Lok Ayukta is reproduced hereunder:
"KERALA LOK AYUKTA LEGISLATURE COMPLEX VIKAS BHAVAN (P.O.) THIRUVANANTHAPURAM - 695 033.
COMPLAINT No. 725/2017 A Complainant:-
Shamy Samad, D/o. Abida Beevi, EKM House, Daivappura.P.O., Peringummala, Nedumangad, Thiruvananthapuram District. PIN-695 563.
Respondents:-
1. Mr. Mohanakumar K., Addl. Tahsildar, Taluk Office, Neyyattinkara, Neyyattinkara, Thiruvananthapuram Dist. PIN-695 121.
2 Mr. Murughan, Village Officer, Vizhinjam Village, Vizhinjam P.O., Thiruvananthapuram Dist. PIN-595
521.
3. Ramachandran Nair, S/o.Krishnan Nair, Krishna Bhavan, Nallikkottukonam, Powdikonam P.O., Thiruvananthapuram, PIN-695 587.
4. V. Rajadas, S/o Varghese, Surabhi, Pottayilkada, Chenkayilvilayil, Arayoor Desom, Arayoor P.O. Neyyattinkara, Thiruvananthapuram. PIN-695 122.
NOTICE FOR PERSONAL APPEARANCE & SHOW CAUSE NOTICE To
1. Mr. Mohanakumar K., Addl. Tahsildar, Taluk Office, Neyyattinkara, Neyyattinkara, Thiruvananthapuram Dist: PIN-655 121. (R1)
2. Mr. Murughan, Village Officer, Vizhinjam Village, Vizhinjam P.O., Thiruvananthapuram Dist. PIN-695
521. (R2) When the aforesaid case came up for orders an 03/04/2017, the Hon'ble Upa Lok Ayukta has ordered, to W.P.(C)No.20294 of 2017 5 issue notice to you with a direction to effect mutation as prayed for correcting the re-survey number and if that is not done, to appear in person before Court on 15.05.2017 and show cause by filing a detailed statement as well in writing as to why it is not done or is not possible.
You are therefore hereby directed to effect mutation as prayed for correcting the re-survey number failing which you shall appear in person before the Court at 10.30 am on 15/05/2017 and to show cause and ordered above, without fail.
Given under my hand and seal of this Registry, dated the 03rd day of April, 2017.
(By Order) Deputy Registrar"
3. Operative portion of Exhibit P5 proceedings of the Tahsildar (Survey) Neyyattinkara dated 24.05.2017 reads thus:
"On the basis of the Hon'ble Loka Ayukta for effecting mutation of 20.25 Ares of property situated in Re. Sy No. 9/5 of block No. 14 of Vizhinjam Village, 1.05 Ares of property in Thandaper No. 27596 as per P.V No.33/09 in Re Sy No.93/5-9-2-1 in block No. 14 is reduced and added to Thandaper no.27598. After reducing 3.09 ares in 93/5-9-1 of Thandaper no. 27597, 3.09 ares in 93/5-
9-2 in Thandaper No.27598, 3.09 ares in 93/5-9-3 in Thandaper No. 27599, 0.41 ares in 93/5-9-4 in Thandaper No.27600, 1.66 ares in 93/5-10-5 in Thandaper No.27601, 063 ares in 93/5-10-1 in Thandaper No.27602, 3.72 ares in 93/5-10-2 in thandaper no. 27603, 3.79 ares in 93/5-10-3, W.P.(C)No.20294 of 2017 6 3.72 ares in 93/5-10-4 in Thandaper No. 27604 and 3.24 ares in 93/5-10-4 in Thandaper No. 27605, the same was added to Thandaper no 19566. Thereafter from the said Thandaper 16.48 ares in Re. Sy No. 93/5-10 and 11.34 ares in 93/59 is reinstated in the parent thandaper and 20.25 ares in Re. Sy no. 96/1-20 in Thandaper no. 27505 as per P.V1299/08 is deduced and reinstated in parent Thandaper. Thereby, the Vizhijam village officer is directed to effect mutation in the name of Smt. Shemmy Samad with respect to 20.25 ares of property in Re. Sy.93/5 from Thandaper no.989 on the basis of correction deed no.1514/2012."
4. Exhibit P7 order dated 05.06.2017 passed by the Kerala Lok Ayukta reads thus:
"Counsel for the complainant Shri Anilkumar submits that, the grievance of the complainant stands redressed and this complaint is therefore closed. In the result this complaint is closed."
5. One of the contentions raised before this court assailing the correctness of the orders stated above, is that a suit in O.S.No.113 of 2019 has been filed before the Principal Munsiff Court, Neyyattinkara by the 8th respondent for a declaration of title over 50 cents of land. Pending disposal of the suit, Exhibits P8 and P10 notices [produced along with W.P.(C)No.20294 of 2017 7 W.P.(C)No.20688 of 2015] have been issued by the revenue officials, which necessitated the writ petitioner and another to challenge the same. Petitioner in Complaint No.725 of 2017-Shamy Samad and Abida Beevi were respondents 6 and 7 in W.P.(C)No.20688 of 2015.
6. After considering the rival submissions, writ court, by judgment dated 29.10.2015, disposed of the writ petition as hereunder:
"2. It appears that the respondents 6 and 7 have approached the revenue officials to cancel the transfer of registry effected in favour of the petitioners. The Taluk Surveyor appears to have made an enquiry regarding whether the transfer of registry was effected wrongly. The petitioner submits that Ext.P4 civil suit is pending between the petitioners and the party respondents.
3. In fact Exts.P8 and P10 are only notice. The petitioners shall raise their objection before the Taluk Surveyor. The Taluk Surveyor shall take into account of objection as well as the pending civil suit while taking steps in the matter. It is made clear that the Taluk Surveyor shall take steps only after adverting to the objection of the petitioner in the matter and hearing the petitioner.
4. The Taluk Surveyor shall forward necessary report to the Tahsildar. It is for the Tahsildar to take a decision, the Taluk Surveyor shall only identify the property. Appropriate W.P.(C)No.20294 of 2017 8 decision shall be taken in this matter by the 4 th respondent after hearing the petitioners as well as the party respondents and adverting to the report of the Taluk Surveyor."
7. That being the position, without giving notice to the writ petitioner or arraying him as a party, Shamy Samad - respondent No.7 has filed a complaint before the Lok Ayukta for the following reliefs:
"A. May conduct an investigation in this matter of allegation against the respondents in respect of rectification of the survey number and effecting of proper mutation of land of the complainant.
B. The 1st respondent may be directed to rectify the survey number of the land of the complainant as Survey No. 93/5 instead of Sy.No.96/1-20 and to effect the mutation of the land accordingly.
C. If the allegation against the respondent are proved the Hon'ble Lok Ayukta may invoke Section 14 of the Lok Ayukta Act against the respondents.
D. May order payment of compensation to this complainant under Sec 13 of the Lok Ayukta act."
8. Adverting to the averments, Kerala Lok Ayukta in Complaint No.725 of 2017-A dated 03.04.2017, ordered notice to the respondents therein, namely, Additional Tahsildar, Neyyattinkara and Village Officer, Vizhinjam Village, Thiruvananthapuram District, sued in their individual capacity, W.P.(C)No.20294 of 2017 9 with a direction to effect mutation as prayed for correcting the re-survey number and if that is not done, directed them to appear in person before the Lok Ayukta on 15.05.2017 and to show cause by filing a detailed statement.
9. Pursuant to the directions issued by the Lok Ayukta, the Tahsildar (Survey), Neyyattinkara, by order dated 24.05.2017, has directed the Village Officer to effect mutation in the name of Smt.Shamy Samad with respect to 20.25 ares of property in Re-Survey No.93/5 from thandaper No.989 on the basis of correction deed No.1514/2012.
10. Thereafter, when the matter came up before the Lok Ayukta on 05.06.2017, on the representation of the learned counsel for the complainant therein that the grievance of the complainant stood redressed, complaint was closed.
11. It is thus being aggrieved by the orders issued by the Lok Ayukta stated supra, instant writ petition is filed.
12. On this day, when the matter came up for hearing, posed with a question as to whether the writ petitioner was made as a necessary and proper party for the effective W.P.(C)No.20294 of 2017 10 adjudication of the complaint filed for effecting mutation of the subject property, Mr.Saijo Hassan, learned counsel for respondents 7 and 8 fairly submitted that the writ petitioner is a necessary and proper party.
13. Admittedly, the writ petitioner has not been made as a party respondent in the complaint, whereas there are averments relating to the claim made by the writ petitioner in respect of the subject property.
14. In the light of the submission of the learned counsel for respondents 7 and 8 and taking note of the fact that the writ petitioner has not been made as a party to the lis in respect of effecting mutation of the subject property, we are of the view that Exhibit P4 order of the Lok Ayukta has been passed in violation of the principles of natural justice.
15. That apart, perusal of Exhibit P1 judgment in W.P. (C)No.20688 of 2015 dated 29.10.2015 between the parties namely, the writ petitioner and Smt.Abidabeevi and Smt.Shemi Samad, arrayed as respondents 6 and 7 therein, also makes it clear that when a direction has been issued by W.P.(C)No.20294 of 2017 11 the writ court as early as on 29.10.2015 in W.P.(C)No.20688 of 2015 to the Tahsildar to take appropriate decision after hearing the contesting parties therein and adverting to the report of the Taluk Surveyor, complainant/respondent No.8 in the instant writ petition ought to have impleaded the writ petitioner herein, as a party respondent in Complaint No.725 of 2014. There is a violation of the principles of natural justice.
16. Added further, a suit has been filed in O.S.No.113 of 2009 on the file of the Principal Munsiff Court, Neyyattinkara, and that the said suit has been dismissed for default, restored and once again dismissed for default. As such from the above, it could be deduced that there is no declaration by any civil court also.
17. Record of proceedings shows that while entertaining the challenge to the interim orders passed by the Lok Ayukta in Complaint No.725 of 2014, a Hon'ble Division Bench of this court on 20.06.2017 in W.P.(C)No.20294 of 2017 has passed the following order:
W.P.(C)No.20294 of 2017 12 "The petitioner is aggrieved by the interim order of the Kerala Lok Ayukta in Complaint No.725 of 2017 as communicated by its Deputy Registrar (Exhibit P4) directing for personal appearance of the Tahsildar and the Village Officer if the mutation in respect of an item of property is not effected.
2. Learned counsel for the petitioner submits that the petitioner and respondent Nos.7 and 8 have serious disputes in regard to certain properties. The dispute is pending before a civil court of competent jurisdiction. During pendency of the same, instead of taking orders or approaching the civil court for interim relief, they have sought to move the Lok Ayukta and the Lok Ayukta has passed interim orders which would be prejudicial to the petitioner. Submission is that there being a civil suit, Lok Ayukta should not have interfered in the matter.
3. Be that as it may, till further orders, the order passed by the Lok Ayukta in Complaint No.725 of 2017 will not be given effect to or acted upon. It is further ordered that till further orders, any action pursuant to Exhibits P5 and P7 shall also remain in abeyance. Issue notice to respondent Nos.7 and 8 by speed post. Processes within this week. Learned Government Pleader accepts notice for respondent Nos. 1 to 6 & 9. List for admission once respondent Nos.7 and 8 enter appearance."
18. In the light of the above discussion, we are of the view that orders passed by the Lok Ayukta and consequential W.P.(C)No.20294 of 2017 13 order of the Tahsildar have to be set aside. Accordingly, writ petition is allowed and Exhibits P4 and P7 orders dated 03.04.2017 and 05.06.2017 respectively passed by the Kerala Lok Ayukta and the consequential Exhibit P5 order dated 24.05.2017 of the Tahsildar (Survey), Neyyattinkara are set aside.
Writ petitioner is at liberty to file an application to implead himself as a party respondent in Complaint No.725 of 2014 and file a detailed statement or counter affidavit, as the case may be, with supporting documents, to the prayers sought for in the complaint.
Pending interlocutory applications, if any, shall stand closed.
Sd/-
S.Manikumar Chief Justice Sd/-
Shaji P.Chaly Judge vpv W.P.(C)No.20294 of 2017 14 APPENDIX OF WP(C) 20294/2017 PETITIONER EXHIBITS EXHIBIT P1 A TRUE PHOTOCOPY OF THE JUDGMENT DATED 29.10.2015 IN WPC NO.20688 OF 2015.
EXHIBIT P2 A TRUE PHOTOCOPY OF THE ORDER BY NO.G-
31565/2012 DATED 31.01.2017 ALONG WITH TRANSLATION.
EXHIBIT P3 A TRUE PHOTOCOPY OF THE COMPLAINT BY NO.725/17A BEFORE THE HON'BLE LOK AYUKTA.
EXHIBIT P4 A TRUE PHOTOCOPY OF THE NOTICE AND SHOW CAUSE DATED 03.04.2017.
EXHIBIT P5 A TRUE PHOTOCOPY OF THE ORDER BY NO.G1-
31565/2012 DATED 24.05.2017 ALONG WITH TRANSLATION.
EXHIBIT P6 A TRUE PHOTOCOPY OF INTERIM APPLICATION FOR IMPLEADING FILED BY THE PETITIONER. EXHIBIT P7 A TYPED COPY OF THE ORDER DATED 05.06.2017 PASSED BY THE LOK AYUKTA.
//TRUE COPY// P.A. TO JUDGE