Kerala High Court
Kaliyadan Mohammed vs The District Collector on 16 February, 2024
Author: P Gopinath
Bench: P Gopinath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
FRIDAY, THE 16TH DAY OF FEBRUARY 2024 / 27TH MAGHA, 1945
WP(C) NO. 32091 OF 2013
PETITIONERS:
1 KALIYADAN MOHAMMED,
S/O. KAMMU, KALIYADAN HOUSE,
IRINGHAVOOR P. O., TIRUR,
MALAPPURAM DISTRICT.
2 KORMATH SAIDALAVI,
S/O. HAMZA, KORMATH HOUSE,
IRINGHAVOOR P. O., TIRUR,
MALAPPURAM DISTRICT.
3 KORMATH IBRAHIM,
S/O. HAMZA, KORMATH HOUSE,
IRINGHAVOOR P. O., TIRUR, MALAPPURAM DISTRICT.
REPRESENTED BY HIS POWER OF ATTORNEY HOLDER
KORMATH SAIDALAVI, S/O. HAMZA, KORMATH HOUSE,
IRINGHAVOOR P. O., TIRUR, MALAPPURAM DISTRICT.
4 V. P. MOHAMMED,
S/O. PAREEKUTTY, VANIBHAPEEDIKAYIL HOUSE,
IRINGAVOOR P. O., TIRUR, MALAPPURAM DISTRICT.
5 VARIKOTTIL SAIDALAVI,
S/O. RAYINKUTTY, VARIKKOTTIL HOUSE,
IRINGHAVOOR P. O., TIRUR, MALAPPURAM DISTRICT.
BY ADVS.
SRI. P. T. SHEEJISH
SRI. PRAVEENKUMAR P.
RESPONDENTS:
1 THE DISTRICT COLLECTOR,
COLLECTORATE, UP HILL, MALAPPURAM,
MALAPPURAM DISTRICT, PIN - 676 504.
2 THE TAHSILDAR,
TIRUR TALUK, TALUK OFFICE,
TIRUR, MALAPPURAM DISTRICT - 676 101.
WP(C) NO. 32091 OF 2013
2
3 THE VILLAGE OFFICER,
CHERIYAMUNDAM VILLAGE OFFICE,
MALAPPURAM DISTRICT, PIN - 676 106.
4 THE COMPETENT AUTHORITY,
SMUGGLERS AND FOREIGN EXCHANGE(FORFEITURE OF
PROPERTY) ACT, 1976 AND NARCOTIC DRUGS,
PSYCHOTROPICS SUBSTANCES ACT, UTSAV, 64/1,
G. N. CHETTY ROAD, T. NAGAR, MADRAS-600017.
5 T. P. UNNEENKUTTY,
S/O. KUNHIPOKKU, THALASSERY PARAMBIL HOUSE,
IRINGAVOOR P. O., TIRUR, MALAPPURAM DISTRICT.
BY ADVS.
SRI. BABU S. NAIR
SRI. P. VIJAYAKUMAR, ASG OF INDIA
SRI. K. RAKESH
SRI. S MANU - DSGI
SMT. DAYA SINDHU SHREEHARI N S - CGC
SRI. VENUGOPAL V - GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 16.02.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) NO. 32091 OF 2013
3
GOPINATH P., J.
--------------------------
W.P.(C) No. 32091 of 2013
-------------------------
Dated this the 16th day of February, 2024
JUDGMENT
1. The petitioners have approached this Court challenging
Exhibit P-25 order issued by the competent authority under the
Smugglers and Foreign Exchange Manipulators (Forfeiture of
Property) Act, 1976 (hereinafter referred to as the 'SAFEMA Act' for
short) forfeiting to the Government of India free from all
encumbrances the properties mentioned in the operative portion of
the order.
2. Brief facts of the case are that one T. P. Saidalavi suffered a
detention under the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974 (hereinafter referred
to as the 'COFEPOSA Act' for short). The 5 th respondent,
Sri. T. P. Unneenkutty is the brother of the aforesaid
Sri. T. P. Saidalavi. On the premise that, certain immovable
properties in the name of the 5th respondent have been acquired
out of sources related to the income of the aforesaid T. P. Saidalavi
from out of smuggling activity and, considering the fact that the
WP(C) NO. 32091 OF 2013
aforesaid T. P. Saidalavi had suffered under the provisions of the
COFEPOSA Act, proceedings were taken to forfeit the property in
question leading to the issuance of Exhibit P-25 order.
3. It is the case of the petitioners that the proceedings in respect
of the properties belonging to the petitioners cannot be sustained
in the light of the provisions of the SAFEMA Act. It is submitted that
the 1st petitioner alone obtained certain property from the 5th
respondent while the others; namely petitioners 2 to 4 have not
even obtained any property from the 5 th respondent. It is also
submitted that Exhibit P-25 order was issued without notice to the
petitioners.
4. The learned Deputy Solicitor General of India appearing for
the respondent No. 4 would vehemently contend that the present
writ petition is not maintainable in the light of the fact that Exhibit
P-25 order was challenged by the 5th respondent by filing O. P. No.
6737 of 2000 and the said original petition was dismissed by this
Court. It is submitted that the petitioners thereafter approached
this Court by filing W.P.(C) No. 18574 of 2010 and the said writ
petition was dismissed as withdrawn without reserving any liberty
to the petitioners to approach this Court again. It is submitted that
without going into the merits of the matter, this writ petition is
WP(C) NO. 32091 OF 2013
therefore liable to be dismissed.
5. It is submitted that the proceedings under the provisions of
the SAFEMA Act were initiated in respect of the properties on the
specific finding that the said properties were related to the affairs
of Sri. T. P. Saidalavi (brother of the 5th respondent). It is submitted
that the contention now attempted by on behalf of the petitioners
that their properties are not liable to be proceeded against involves
the adjudication of questions of fact which cannot be done in
proceedings under Article 226 of the Constitution of India. It is
submitted that the 1st petitioner had clearly obtained the property
from the 5th respondent. It is submitted that the contention of the
respondents 2 to 4 that they had not obtained the properties in
question from the 5th respondent also does not appear to be
correct. It is submitted that the petitioners also failed to avail the
alternative remedy of appeal against Exhibit P-25 order to the
Appellate Tribunal under Section 12 of the SAFEMA Act.
4. Having heard the learned Counsel appearing for the
petitioners and the learned Deputy Solicitor General of India
appearing for the 4th respondent and the learned Government
Pleader appearing for the respondents 1 to 3, I am of the view that
the petitioners can be given an opportunity to establish before the
WP(C) NO. 32091 OF 2013
Appellate Tribunal that the properties obtained by them are not
liable to be proceeded under the provisions of the SAFEMA Act. I
am inclined to take this view on account of the fact that Exhibit P-25
order appears to have been issued without notice to the petitioners.
Though, technically the petitioners may not be able to maintain this
writ petition on account of the fact that they withdrew the earlier
writ petition filed by them without seeking the reservation of any
liberty to approach this Court again, the considerations of
substantial justice require this Court to permit the petitioners to
approach the Appellate Authority especially since the original order
was issued without notice to them.
5. The learned Deputy Solicitor General of India is right in
contenting that the determination of the issues raised by the
petitioners involves the adjudication of disputed questions of fact
which cannot be done in a writ petition under Article 226 of the
Constitution of India. Therefore, it is for the petitioners to establish
their case before the Appellate Tribunal.
Accordingly, this writ petition will stand disposed of directing
that, if the petitioners were to file an appeal against Exhibit P-25
order within a period of one month from the date of receipt of a
certified copy of this Judgment, such appeal shall be treated as one
WP(C) NO. 32091 OF 2013
filed in time and the appeal shall thereafter be heard and disposed
of by the Appellate Tribunal constituted under Section 12 of the
SAFEMA Act in accordance with the law and with notice to the
petitioners and concerned officials.
I make it clear that I have not expressed any opinion on the
merits of the contentions taken by the petitioners. It will be open
to the Appellate Tribunal to decide the matter untrammeled by any
observation contained in this Judgment.
Sd/-
GOPINATH P.
JUDGE
Svn
WP(C) NO. 32091 OF 2013
APPENDIX OF WP(C) 32091/2013
PETITIONERS' EXHIBITS
EXHIBIT P-1 THE TRUE COPY OF THE TITLE DOCUMENT NO.
1522/1987 OF SRO, TIRUR DATED 08.07.1987
EXHIBIT P-2 TRUE COPY OF THE DOCUMENT NO. 3310/2001 OF
SRO, TIRUR DATED 07.12.2001.
EXHIBIT P-3 THE TRUE COPY OF THE DOCUEMENT NO. 449/2006 OF
SRO, TIRUR DATED 08.02.2006
EXHIBIT P-4 TRUE COPY OF THE DOCUMENT NO. 1405/2006 OF SRO
TIRUR, DATED 22.04.2006.
EXHIBIT P-5 TRUE COPY OF THE DOCUMENT NO. 2778/2001 OF
KALPAKANCHERRY SRO
EXHIBIT P-6 TRUE COPY OF THE REPRESENTATION SUBMITTED BY
THE 1ST PETITIONER DATED NIL TO THE 1ST
RESPONDENT
EXHIBIT P-7 TRUE COPY OF THE REPRESENTATION SUBMITTED BY
THE WIVES OF THE PETITIONERS 2 AND 3 BEFORE
THE 1ST RESPONDENT
EXHIBIT P-8 TRUE COPY OF THE REPRESENTATION SUBMITTED BY
THE 4TH PETITIONER BEFORE THE 1ST RESPONDENT
EXHIBIT P-9 TRUE COPY OF THE REPRESENTATION SUBMITTED BY
THE 5TH PETITIONER BEFORE THE 1ST RESPONDENT
EXHIBIT P-10 TRUE COPY OF THE SALE DEED DOCUMENT NO.
1741/1978 DATED 02.08.1978
EXHIBIT P-11 THE TRUE COPY OF THE PARTITION DEED DATED
06.08.1955
EXHHIBIT P-12 TRUE COPY OF THE SALE DEED DOCUMENT NO.
EXHIBIT P-13 TRUE COPY OF THE CERTIFIED COPY OF THE
PARTITION DEED VIDE DOCUMENT NUMBER 1863/1985
EXHIBIT P-14 THE TRUE COPY OF CERTIFIED COPY OF SALE DEED
WP(C) NO. 32091 OF 2013
EXHIBIT P-15 TRUE COPY OF THE SALE DEED NUMBER 1803/2003
EXHIBIT P-16 TRUE COPY OF CERTIFIED COPY OF SALE DEED
EXHIBIT P-17 TRUE COPY OF THE SALE DEED NUMBER 1802/2003
EXHIBIT P-18 TRUE COPY OF CERTIFIED COPY OF SALE DEED
EXHIBIT P-19 TRUE COPY OF SALE DEED NUMBER 89/1968
EXHIBIT P-20 TRUE COPY OF SALE DEED NUMBER 1631/1971
EXHIBIT P-21 TRUE COPY OF SALE DEED NUMBER 1175/2004
EXHIBIT P-22 TRUE COPY OF THE COMMON JUDGMENT OF THIS
HON'BLE COURT IN WPC 11973/1993 AND 12910/1993
EXHIBIT P-23 TRUE COPY OF THE REPRESENTATION FILED BY THE
PETITIONERS THROUGH EMAIL BEFORE THE 4TH
RESPONDENT
EXHIBIT P-24 TRUE COPY OF THE SCREENSHOT OF EMAIL PAGE
DATED 02.02.2021
EXHIBIT P-25 TRUE COPY OF THE ORDER DATED 27.03.1998 OF 4TH
RESPONDENT IN CASE PROCEEDINGS NO. F.NO.
OCA/MDS/2680/87
4TH RESPONDENT'S DOCUMENTS
ANNEXURE R4(A) A TRUE COPY OF THE JUDGMENT IN WPC NO. 18574
OF 2010 DATED 02.09.2013
ANNEXURE R4(B) A TABLE DETAILING THE SAID PROPERTIES
MENTIONED IN NOTICE U/S 6(1)
ANNEXURE R4(C) A TABLE DETAILING THE FOREFEITED PROPERTIES
ANNEXURE R4(D) A TRUE COPY OF THE ORDER UNDER SECTION 7(1)
ANNEXURE R4(E) A TRUE COPY OF THE ORDER UNDER 19(1)
