Partly allowed

Chembakavally v. Shaji Joseph

Kerala HC27 Jan 2023Con.Case(C)/38/2023

Case brief

AI extract

What is this about?

In a contempt petition, the Court held that a Tahsildar's order declaring documents fraudulent without conducting a proper enquiry or hearing the petitioner could not be accepted. The judgment recorded the withdrawal of the defective order and directed a fresh order within four months after affording the petitioner a hearing opportunity.

What did the court decide?

The submitted order (Annexure A11) was withdrawn. A fresh order is to be issued within four months after the petitioners are given a fresh opportunity of being heard at every stage.

Chembakavally Vs Shaji Joseph — Contempt of Court | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

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FRIDAY, THE 27^TH DAY OF JANUARY 2023 / 7TH MAGHA, 1944

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CON.CASE(C) NO. 38 OF 2023

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AGAINST THE JUDGMENT IN WP(C) 26773/2016 OF HIGH COURT OF KERALA PETITIONER/2nd PETITIONER IN WPC:

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CHEMBAKAVALLY, AGED 70 YEARS, W/O RAJAGOPALA MENON, AMBA BHAVAN, PULAMANTHOLE (PO), MALAPPURAM DISTRICT

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NOW RESIDING AT KAVUNGAL HOUSE, ERUMAPETTY , THRISSUR DISTRICT -680 584.

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MADHU RADHAKRISHNAN NELSON JOSEPH M.D.JOSEPH DEEPAK ASHOK KUMAR

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RESPONDENT/3RD RESPONDENT IN WPC:

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SHAJI JOSEPH, (AGE NOT KNOWN TO THE PETITIONER) FATHER'S NAME NOT KNOWN TO THE PETITIONER TAHASILDAR, PERINTHALMANNA PERINTHALMANNA TALUK , MALAPPURAM - 679322

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SRI S.GOPINATHAN-SR GP

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THIS CONTEMPT OF COURT CASE (CIVIL) HAVING COME UP FOR ADMISSION ON 27.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CON.CASE(C) NO. 38 OF 2023

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JUDGMENT

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Even though the learned Senior Government Pleader – Sri.S.Gopinadhan, asserts that Annexure A11 order has been issued by the respondent in full compliance with the directions of this Court, prima facie, I cannot find the same to be worthy of imprimatur.

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I say as afore because, in the judgment in question, after noticing that Ext.P5 - produced along with the writ petition, held that the petitioner herein are not in possession of the extents claimed by them, that the same was set aside, directing the matter to be reconsidered, adverting to all documents, including Exts.P6 to P8.

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Ext.P6 is stated to be the 'Thandaper' account of late Raman Menon, in which certain extents of property have been recorded. It is based on the said entries that this Court entered into a preliminary conclusion that the extent of lands claimed by the petitioners in the writ petition, namely 15.25 acres, appear to be that which is left, after what was distributed to various persons under the Land Reforms Act.

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However, in Annexure A11, the Tahsildar has entered into certain conclusions, which are available in the last

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CON.CASE(C) NO. 38 OF 2023

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paragraph of its internal page 2, including that Ext.P6 is a fraudulent document and that the survey numbers available in the year 1971, does not seen to be comprising 104 acres of land. However, it is also conceded that such conclusions were arrived at, not after a proper enquiry involving the petitioner, but were entered into by the Tahsildar based on certain documents and records maintained in the offices concerned. However, Annexure A11, very interestingly, then goes on to say that the statement of the Public Information Officer, who issued Ext.P8, was to the effect that he had followed the village records and nothing more. In spite of this, a conclusion is now recorded that, going by the extant records in the Village Office as also the orders of the Land Board, the extents claimed by the petitioner were not available; thus leading to further action against the officers who issued the said documents.

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One certainly fails to understand how such drastic conclusions could have been indited by the Tahsildar without proper enquiry, especially in view of the specific directions of this Court, which were issued taking into account Exts.P6 to P8 documents, produced along with the writ petition. There was not a whisper by the official respondents at the time

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CON.CASE(C) NO. 38 OF 2023

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when the said judgment was delivered, that any of these documents were fraudulent; and had there been any such, this Court certainly would have taken that also into account.

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Obviously, therefore, a conclusion, that any of the documents relied upon by the petitioners were fraudulent or that there were errors, mistakes or variations in the village records and the orders of the Land Board, could have been entered into only after they were given necessary opportunities and proper enquiries being conducted. In the absence of this, certainly, Annexure A11 cannot find my favour.

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Perhaps, being aware of the mind of this Court as afore, Sri.S.Gopinadhan – learned Senior Government Pleader, submitted that if this Court is not inclined to accept Annexure A11, then an opportunity may be given to the Tahsildar to reconsider the whole matter and to conduct proper enquiries, especially with respect to Ext.P6 and such other documents; and offered that the petitioner will be given fresh opportunities of being heard during every such process. He prayed that no further affirmative declarations be made in this judgment.

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As I have already said above, Annexure A11

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CON.CASE(C) NO. 38 OF 2023

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presupposes certain facts, but without any enquiry having been done, though the Tahsildar says that he has gone through the records available. The fact remains that this Court cannot favour it, unless it has been specifically shown that the petitioners were involved in the enquiry, if at all any such was done. When the respondent unequivocally admits that no such enquiry was done and that the petitioners were never given an opportunity during any such, obviously, the suggestion now made by the learned Senior Government Pleader is the most apposite.

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Resultantly, I record that the submission of Sri.S.Gopinadhan that Annexure A11 will stand withdrawn; and that a fresh order, in terms of judgment of this Court, will be issued, after affording the petitioners fresh opportunity of being heard at every stage, including at the stage of enquiry, if any is to be conducted, thus culminating in an appropriate order and necessary action within a period of four months from the date of receipt of a copy of this judgment.

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Needless to say, all contentions of the rival parties are left open and I also leave liberty to the petitioner to approach this Court again in future, if it becomes so

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CON.CASE(C) NO. 38 OF 2023

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warranted.

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It goes without saying that the directions in the judgment remains unaltered and therefore, that the question of possession will have to be specifically adverted to by the respondent, while the afore exercise is completed.

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Sd/- DEVAN RAMACHANDRAN

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JUDGE

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stu

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CON.CASE(C) NO. 38 OF 2023

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APPENDIX OF CON.CASE(C) 38/2023

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PETITIONER ANNEXURES

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Annexure A1 CERTIFIED COPY OF JUDGMENT OF THE HON'BE HIGH COURT IN WPC NO. 26773/2016 DATED 30.9.2021 Annexure A2 TRUE COPY OF THE LETTER DATED 14-12-2007 SENT BY REGISTERED POST ALONG WITH REGISTERED RECEIPT BY RAJAGOPAL MENON TO RDO, PERINTHALMANNA Annexure A3 TRUE COPY OF THE ORDER DATED 11-1-2008 ISSUED BY THE CHAIRMAN TALUK LAND BOARD & REVENUE DIVISIONAL OFFICER PERINTHALMANNA BEARING NO : L9999/07/L Annexure A4 TRUE COPY OF THE SKETCH OBTAINED BY THE PETITIONERS UNDER THE RTI ACT AND ISSUED BY THE PUBLIC INFORMATION OFFICER (ADDITIONAL TAHASILDAR PERINTALMARMA TALUK OFFICE) ON 30-8-2014 Annexure A5 TRUE COPY OF THE AFFIDAVIT OF FORMER VILLAGE ASSISTANT PV MURALEEDHARAN Annexure A6 TRUE COPY OF THE TAX RECEIPT DATED 20-31972 AS IS PRODUCED IN WRIT PETITION 26773/2016 Annexure A7 TRUE COPY OF APPLICATION MADE DATED 30-62016 BY CHEMBAKAVALLY TO THE PUBLIC INFORMATION OFFICER Annexure A8 TRUE COPY OF THE REPLY ISSUED TO ANNEXURE A7 BY THE PUBLIC INFORMATION OFFICER CONFIRMING THAT 15.25 ACRES WAS LYING IN THE THANDAPER ACCOUNT OF THE LATE M.K. RAMAN MENON Annexure A9 TRUE COPY OF THE JUDGMENT IN WPC 29893/2014 OF THE HON'BLE HIGH COURT OF KERALA

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CON.CASE(C) NO. 38 OF 2023

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AnnexureA10 TRUE COPY OF THE JUDGMENT DATED 29.8.2022 IN CONTEMPT OF CASE 1264/2022

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Annexure A11 TRUE COPY OF THE ORDER NO. TLKPTM/2839/2022-G1 PASSED BY THE RESPONDENT DATED 3/11/2022

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Annexure A12 TRUE COPY OF THE DETAILS OF THE PATTAYAM HOLDERS OBTAINED BY THE PETITIONER IN THE FORM OF A TABULATED COLUMN.

Chembakavally v. Shaji Joseph

Case brief

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What did the court decide?

Chembakavally v. Shaji Joseph

Case brief

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