Kerala High Court
Yousaf Lebba (Died) vs State Of Kerala
Author: Anil K. Narendran
Bench: P.R.Ramachandra Menon, Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
TUESDAY, THE 5TH DAY OF APRIL 2016/16TH CHAITHRA, 1938
MFA ( MT )No. 27 of 2016 ()
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( AGAINST THE ORDER IN MTOP 27/2011 of MUNNAR SPECIAL TRIBUNAL DATED
APPELLANTS/PETITIONER & ADDL.PETITIONERS:
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1. YOUSAF LEBBA (DIED),
PULLATU HOUSE, THATIPALAM, CHITHIRAURAM P.O. DEVIKULAM
TALUK, REPRESENTED BY, POWER OF ATTORNEY HOLDER SHOJAN K.R,
AGED 41,S/O. RAPPAI K.K. KOKKADAN HOUSE, P.O. VATTANATHARA,
MANNAMPETTA KARA, AMBALLOOR VILLAGE, MUKUNDAPURAM TALUK,
THRISSUR DISTRICT.
2. JAMEELA YOUSUF, AGED 67 YEARS.
W/O. LATE YOUSAF LEBBA, PULLATTU HOUSE, CHITHIRAPURAM P.O,
PALLIVASAL VILLAGE.
3. P.U IKBAL, AGED 51 YEARS,
S/O. LATE YOUSAF LEBBA, PULLATTU HOUSE, CHITHIRAPURAM P.O,
PALLIVASAL VILLAGE.
4. P.U. IRSHAD,AGED 43 YEARS,
S/O. LATE YOUSAF LEBBA, PULLATTU HOUSE, CHITHIRAPURAM P.O,
PALLIVASAL VILLAGE.
BY ADVS.SRI.K.S.HARIHARAPUTHRAN
SRI.M.D.SASIKUMARAN
SRI.GEORGE MATHEW
SRI.SUNIL KUMAR A.G
SRI.DIPU JAMES
RESPONDENTS/RESPONDENTS:
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1. STATE OF KERALA
REPRESENTED BY THE DISTRICT COLLECTOR, IDUKKI, CIVIL
STATION, PAINAVU - 685 603
2. THE SPECIAL TAHSILDAR (LA),
DEVIKULAM, DEVIKULAM P.O., IDUKKI - 685 613.
3. THE TAHSILDAR,
TALUK OFFICE, DEVIKULAM P.O., IDUKKI - 685 613.
4. THE VILLAGE OFFICER,
KDH VILLAGE, DEVIKULAM P.O.,IDUKKI - 685 613
BY SR. GOVERNMENT PLEADER MR. R. PADMARAJ
THIS MFA (MUNNAR TRIBUNAL) HAVING COME UP FOR ADMISSION ON
08.03.2016, THE COURT ON 05-04-2016 DELIVERED THE FOLLOWING:
P.R. RAMACHANDRA MENON
&
ANIL K. NARENDRAN, JJ.
..............................................................................
M.F.A.(MT)No.27 OF 2016
.........................................................................
Dated this the 5th April, 2016
JUDGMENT
P.R. Ramachandra Menon, J.
The correctness and sustainability of the order dated 07.01.2016 passed by the Munnar Special Tribunal in M.T.O.P. No. 27 of 2011 is sought to be challenged in this appeal preferred by the appellants/petitioners, pointing out that substantial questions of law are involved to have the matter considered in terms of Section 9 of the Munnar Special Tribunal Act, 2010.
2. The first appellant is no more and his legal heirs brought on record are the other appellants. The case projected by the appellants is that they are having title, ownership and possession over an extent of 33 cents of land comprised in Sy.No.62/13C of KDH village having obtained the same by virtue of Ext.A3 assignment order dated 21.01.1983, issued by the Spl. Tahsildar M.F.A.(MT)No.27 OF 2016 2 (LA) Devikulam and Ext.A2 Patta in L.A. proceedings No.5/1983 issued by the very same authority. It is contended that the appellants/petitioners were enjoying the property, effecting cultivation therein from 1983 onwards, also remitting basic tax and that the property is having well-demarcated boundaries. The original petitioner wanted to construct a building in the said property and with this intent, he approached the Local authority (Munnar Grama Panchayath)for issuance of necessary permit, which was not acceded to. This made the original petitioner/deceased first appellant to approach this Court by filing W.P.(C)32292 of 2006, seeking for various reliefs with reference to the title, ownership, possession and such other traits. An interim order was passed by this Court directing the local authority to issue 'provisional permit'; subject to the condition that the petitioner gave an undertaking to demolish the construction, if the fate of the case was ultimately against him. Finally, based on the counter affidavit filed by the respondents, interference was declined and writ petition was M.F.A.(MT)No.27 OF 2016 3 dismissed; however making it clear that dismissal of the writ petition would not stand in the way of the petitioner in establishing his rights by proving the title, before the civil court.
3. Despite the dismissal of the said writ petition years back, the said petitioner did not approach the civil Court for proving the title, allegedly for the reason that there was no threat from anybody. But subsequently, apprehending trespass from the part of the Governmental authorities into the land, he was constrained to file O.S.No.43 of 2010 before the Munsiff's Court, Devikulam in February, 2010. When the proceedings were pending, the said Original Suit came to be transferred to the Munnar Special Tribunal, on establishing the said Tribunal by the State Government in terms of the Munnar Special Tribunal Act, 2010, where the case was re-numbered as MTOP.27 of 2011. In fact, the case was for permanent prohibitory injunction and for declaration of title .
4. Detailed written statement was filed by the respondents, contending that the scheduled property was a Government land M.F.A.(MT)No.27 OF 2016 4 and that the petitioner's attempt was to encroach into the said property. The 'patta' bearing No.9910 dated 8.2.1983 allegedly issued in L.A.5/1983 was stated as a bogus one and that there was no such assignment or proceedings. The Government had received a complaint dated 24.06.2003 from the Director, Vigilance and Anti Corruption Bureau, regarding issuance of bogus pattas in the area, whereupon G.O. Dated 17.11.2003 was issued constituting an 'Expert Committee' to unearth the bogus 'pattas' in the KDH village. The Committee so constituted with the Director of Survey and Land Records, Secretary to Land Board and Chief Conservator of Forests and Chairman/Members, conducted a detailed enquiry and found that the 'patta' and assignment proceedings sought to be relied on by the petitioner were bogus, forged and that they were not supported by any genuine documents or files kept in the Taluk Office . It was also found that the petitioner had fabricated land tax receipts for the property, also creating Thandaper account Number in his name, besides forging Possession Certificate, M.F.A.(MT)No.27 OF 2016 5 Location Certificate, which in fact were never issued to him, on the basis of any genuine records. It was also contended that the scheduled property was virtually part of the property resumed by the Government under KDH (Resumption of Lands)Act and that the Spl. Tahsildar had no authority to issue 'patta' for such lands; the competent authority for issuance of patta to such lands being the District Collector. The writ petition filed before this Court for a declaration and the right to make construction, the right to get building permit and to direct the revenue authorities to receive the land tax, came to be dismissed, with serious adverse observations, however leaving it open for the petitioner to establish the title before the civil court, if so desired. In the course of further proceedings, the original petitioner filed I.A.No.893 of 2015 before the Tribunal relinquishing the first relief regarding 'declaration of title' over the petition schedule property, which was admittedly allowed.
5. Evidence was adduced from both the sides. Exts.A1 to A17 were marked and P.Ws 1 to P.W.7 were examined by the M.F.A.(MT)No.27 OF 2016 6 petitioner. The respondents examined R.W.1 (Tahsildar, Devikulam). Commission reports, rough sketch, survey report and survey plan were marked as C1, C1(a), C2 , C2(a) and C3 series were marked (as Court exhibits). Report of the Taluk Surveyor was produced and marked as Ext.X1-a third party exhibit. The Advocate Commissioner was examined as Court Witness - C.W.1. Based on the pleadings and evidence let in, the Tribunal arrived at a clear finding on facts that the petitioners had absolutely no title, ownership or possession over the property and that the documents sought to be relied on in this regard were bogus, forged and fabricated. It was accordingly, that interference was declined and the original petition was dismissed, which forms the subject matter of challenge in this appeal.
6. Heard Mr. K.S.Hariharaputhran, the learned counsel for the appellants and Shri R. Padmaraj, the learned Sr.Government Pleader on behalf of the respondents.
7. The primary question to be considered is whether there M.F.A.(MT)No.27 OF 2016 7 is any 'substantial question of law', so as to maintain this appeal under Section 9 of the Munnar Special Tribunal Act,2010 and whether this Court can entertain an appeal against the verdict passed by the Tribunal with reference to the specific facts involved or is there any perversity in finalising the proceedings with reference to the facts, evidence and the question of law, by the Tribunal.
8. The Munnar Special Tribunal Act was enacted by the State to provide for constitution of a Special Tribunal for the adjudication of disputes in respect of lands in Munnar area comprising the villages of Chinnakkanal, Kannan Devan Hills (KDH), Santhanpara, Vellathooval, Aanavilasam, Pallivasal, Aanaviratty and Bison Valley; also providing for transfer of land related cases pending before the various courts and other authorities to the Tribunal and to provide for matters connected therewith and incidental thereto. As revealed from the 'Preamble' of the Act, the topographical peculiarities of the Munnar area, which is rich in flora and fauna requiring preservation and the M.F.A.(MT)No.27 OF 2016 8 large scale encroachments of lands in the Munnar area, conversion of land, use of land for purposes other than for the purposes assigned and in-discriminated exploitation of land and other natural resources were taken note of by the Government. The steps being taken under various enactments for evicting the encroachers, demolition of the unauthorised or illegal construction or such other structures in the Munnar area and pendency of large number of cases and disputes, necessitating detailed examination of documents and the need to adduce evidence, intending to settle the issue once and for all within a time frame were also felt by the Government, which led to the enactment. Constitution of the Tribunal and its functions are dealt with under Section 3 of the Act and by virtue of the mandate of Section 4, notwithstanding anything contained in any other law for the time being in force or order, decree or judgment, all disputes in respect of Munnar area pending before any court/any authority except the High Court and Supreme Court shall stand transferred to the Tribunal immediately on constitution of the M.F.A.(MT)No.27 OF 2016 9 Tribunal under the Act. Jurisdiction of the civil court stands barred under section 10 and the order passed by the Tribunal is to be final, subject to the right of appeal under Section 9, on involvement of any substantial question of law. Maintainability of the present appeal has to be examined in the above background.
9. It is seen from the order under challenge, that the Tribunal made a threadbare analysis of the facts and figures with reference to the pleadings and evidence let in; the earlier attempt of the original petitioner by approaching this Court, seeking for a declaration and such other reliefs by filing W.P.(C) No.32292 of 2006; the stand taken by the respondents in their counter affidavit also producing the 'Expert's Committee report' along with connected files before this Court; the non-production of some disputed documents/tax receipts, which were not having corresponding entry in the collection day book of the village office and ultimate dismissal of the writ petition were also taken note of. The observations made by the Tribunal in relation to issues 1 to 3 raised before the Tribunal, as discussed at 'page 7' M.F.A.(MT)No.27 OF 2016 10 onwards of the order passed being relevant, are extracted below:
"The crucial question to be decided is as to the genuineness and legality of Exhibit A2 pattayam assigned as per Exhibit A3 Assignment order conferring title to the petitioner upon the petition schedule property and the consequential proceedings . The petitioenr gave evidence through his power of attorney holder examined as P.W.1. P.W.1 deposed that he is a builder from Thrissur and that he is introduced to the petitioner by a broker named George. He had executed a partnership deed with the petitioner for the purpose of the business of constructing building in the schedule property and for the sale of the buildings so constructed and the power of attorney was executed as security for the business of building construction in the schedule property .The Ext.A1 is that p;ower of attorney . The petitioner had issued copies of pattayam, assignment order, possession certificate, location certificate and land tax receipts at the time of execution of power of attorney and he had verfied those documents from the village offce and had taken legal opinion from the advocate. He has further deposed that he is not having direct knowledge about the proceedings relating to Exts.A2 to Exts.17 documents. The Ext.A2 is the pattayam number 9910 dated 8/2/83 issued in LA No.5/83 of the Special Tahsildar (LA), Devikulam. The pattayam is signed and sealed, and the survey number and extent of M.F.A.(MT)No.27 OF 2016 11 the property are also shown. But the property is not scheduled in the pattayam and sketch of the property is not attached along with the pattayam. The Ext.A3 is the assignment order in LA No.5/83 and it is signed and sealed; but the sketch of the property is not attached along with the order. The power of attorney holder examined as PW 1 deposed that he had no direct knowledge about the Exts.A2 and A3.
The Ext.A4 is the photo copy of the extract of assignment register (No.2 register) issued under the Right to Information Act and Ext.A4(a) is the relevant entry of LA 5/83. The covering letter of Ext.A4 is not appended and the relevant entry in the page showing proceedings in LA.No.5/83 is not seen attested.
The Ext.A5 is the extract of the Thandapper Account Register and the Village officer who had issued that extract was examined as PW4. The witness deposed that the extract of the thandapper register was signed and sealed by him and issued to the petitioner. During cross examination he has admitted that the extract of the thandapper register was not prepared by him and the assignment order and its date are not written therein. There is difference in the handwritings on the front and rear side of the thandapper register extract. The number from which the account number is deducted or added is also not shown in the thandapper register. The Ext.A10 is the possession certificate and the Ext.A11 location sketch M.F.A.(MT)No.27 OF 2016 12 of the petition schedule property. The village officer examined as P.W.4 deposed that it was signed, sealed and issued to the petitioner by him. During cross examination, he has admitted that Exts,.A10 & A11 are not prepared by him, has not inspected the property before the preparation, has not seen the pattayam of the property, has not verified the BTR register and has not verified the genuineness of the thandapper account number. ."
It has been observed by the Tribunal that the petitioners had not produced the concerned disputed basic tax receipts as pointed out by the High Court, but produced some other receipts in respect of tax subsequently paid. The incriminating circumstances including those pointed out by the then Village Officer, who was examined as a witness(P.W.4) that the Village Officer had not inspected the site, that he had not identified the property; that he had not verified the BTR and he had not verified the Thandaper Number: and proceedings in L.A.5/83 (as conceded by him during cross examination)have been noted by the Tribunal. The alleged location and boundaries of the property concerned, as referred to in the Commissioner's/Surveyor's reports and M.F.A.(MT)No.27 OF 2016 13 plans; the deposition of Surveyor,who was examined as P.W.5, the admission made by the surveyor that he had not ascertained the genuineness of the assignment order from the Village Office situated next to his office; that he had not obtained the 'patta sketch' to locate and identify the property; that there was difference between the properties in Ext.C2(a) plan and Ext.A11 location sketch have been discussed in detail. It was also observed, based on evidence, that all these material factual aspects were seen verified by the Expert Committee, who had also found that the 'patta' created by the original petitioner was a bogus one and not supported by any genuine files of the Taluk Office, Devikulam and that there was no Thandaper account for the scheduled property in the KDH village. It was accordingly, that a finding was rendered, holding that Ext.A3 assignment order and Ext.A2 patta were not issued by the respondents and that they were bogus; also holding that the scheduled property was a Government land and that the petitioners were not entitled to get any prohibitory injunction against the respondents; thus M.F.A.(MT)No.27 OF 2016 14 leading to dismissal of the petition.
10. It is quite clear that the finding rendered by the Tribunal is based on the specific pleading and evidence let in. The said finding on fact is not liable to be challenged unless there is an enabling provision. Now comes the right of appeal under Section 9, which reads as follows:
"9. Appeal:-(1) The Government or any person objecting to the decision passed by the Tribunal may within sixty days of the date of decision file appeal against such decision before the High Court.
Provided that the High Court shall entertain an appeal under sub-section (1) only if there is a substantial question of law involved and shall not entertain an appeal based on factual aspects alone.
(2) The appeal shall be in the prescribed form and shall be verified and accompanied by the fee as may be prescribed."
From the above, it is clear that right of appeal is not automatic in respect of a cause of action arising under the Munnar Special Tribunal Act. There is no dispute with regard to the fact that the property is situated in the KDH village, which comes within the jurisdiction of the Munnar Special Tribunal. It was accordingly, M.F.A.(MT)No.27 OF 2016 15 that the cases originally filed before the Munsiff's Court, Devikulam came to be transferred and re-numbered before the Tribunal.
11. Section 9(1) of the Act enables the aggrieved party to prefer appeal before this Court within 60 days. But the 'proviso' thereunder clearly stipulates that the High Court shall entertain an appeal under sub-section(1) only if there is a 'substantial question of law' and shall not entertain an appeal based on factual aspects alone.
12. The discussion made hereinbefore clearly reveals that the verdict passed by the Tribunal is with reference to the specific pleadings and the evidence let in. The finding is well based on the facts, evidence and reasons, holding that the documents sought to be relied on by the petitioners were forged, fabricated and bogus and that no such genuine document was ever issued conferring title upon the petitioner. There is also a finding that the petitioner was not having ownership or possession over the property and that the land is a Government land. This being the M.F.A.(MT)No.27 OF 2016 16 position, it is clearly a finding on fact and absolutely no substantial question of law is involved so as to entertain the appeal. The appeal is liable to be dismissed on this score alone.
13. However, there is a contention for the appellant, as raised in Ground 'Q' of the appeal that the Munnar Special Tribunal Act 2010 is vitiated by legal malafides and that it is discriminative and violative of Article 14 of the Constitution of India. But for the said statement, nothing has been stated further in relation to this ground. Be that as it may, the vires of the Act is not liable to be considered in an appeal filed under Section 9 of the Act and if the petitioner is actually aggrieved in this regard, the remedy is something else. Hence the said contention does not have any relevance or significance.
14. Yet another contention raised in 'Ground 'R' of the appeal is that the order passed by the Tribunal is without jurisdiction and ultravires, as there was no 'Chairman' in the office, when the impugned order was passed and hence it is null and void and non-est in the eye of law. This Court finds it very M.F.A.(MT)No.27 OF 2016 17 difficult to accept the said proposition. The constitution of the Tribunal is dealt with under Section 3. Sub-section (10) of Section 3 clearly stipulates that the matter can be considered and adjudicated by any member, as authorised or designated by the Chairman. There is no case that no such authorisation was there. The order under challenge was passed by the Tribunal consisting of two members among the total of three. There is absolutely no infirmity with regard to the course and proceedings finalised by the Tribunal. The appeal fails with regard to this ground as well.
In the above facts and circumstances, this Court finds that the appeal does not come within the purview of Section 9 of the Act, involving any substantial question of law. Interference is declined and appeal is dismissed.
P.R. RAMACHANDRA MENON, JUDGE ANIL K. NARENDRAN, JUDGE lk