Kerala High Court

Safarulla Khan vs State Of Kerala on 6 July, 2022

                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

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

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

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

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

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

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

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

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

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

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

"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.

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

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