IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 3RD FEBRUARY 2011 / 14TH MAGHA 1932 WP(C).No. 30071 of 2010(H) -------------------------------- PETITIONER: --------------- P.I.FAROOK, AGED 45 YEARS, S/O. P.Y.ISMAIL, PULLUVALAPPIL HOUSE, PULLUPALAM, FORT KOCHI VILLAGE, FORT KOCHI.P.O., KOCHI TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.ALIAS M.CHERIAN RESPONDENTS: ----------------- 1. THE DISTRICT COLLECTOR, ERNAKULAM-682030. 2. THE TAHSILDAR, TALUK OFFICE, KOCHI-682011. 3. THE VILLAGE OFFICER, MATTANCHERRY VILLAGE OFFICE, MATTANCHERRY, KOCHI-682002. 4. THE CIRCLE INSPECTOR OF POLICE, MATTANCHERRY POLICE STATION, MATTANCHERRY, KOCHI-682002. 5. A.SAJITHA, AGED 46 YEARS, D/O. ABDUL RAHIMANKUTTY, DOOR NO.CC 54/1419, KOMPARAMUKKU, MATTANCHERRY, KOCHI, ERNAKULAM DISTRICT-682002. R1 TO R4 BY SR.GOVERNMENT PLEADER SRI.BENNY GERVACIS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) N O.30071 OF 2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF SALE DEED NO.2769 OF 2008 DATED 9.6.2008 EXT.P2 TUE COPY OF SALE DEED NO.3694 OF 1992 DATED 29.8.1996 EXT.P3 TRUE COPY OF ENCUMBRANCE CERTIFICATE DATED 20.3.1999 EXT.P4 TRUE COPY OF ENCUMBRANCE CERTIFIATE DATED 18.9.2009 EXT.P5 TRUE COPY OF REVENUE TAX RECEIPT DATED 20.12.2006 EXT.P6 TRUE COPY OF BUILDING TAX RECEIPT FOR DOOR NOS.6/1263 TO 6/1270 (8 NUMBERS) EXT.P7 TRUE COPY OF RECEIPT DATED 16.6.2009 EXT.P8 TRUE COPY OF ORDER F.NO.OCA/MDS/2730/2733/88 DATED 17.8.2005. / TRUE COPY / J.Chelameswar, C.J. & P.R.Ramachandra Menon, J. ------------------------------------------------------------------------- W.P.(C) No.30071 of 2010 ------------------------------------------------------------------------- Dated this the 3rd day of February, 2011 JUDGMENT J.Chelameswar, C.J. The writ petition is filed with the prayers as follows: “i) To issue wit of Certiorari or any other appropriate writs, directions or orders calling for all the records from respondents 1 to 3 and restrain respondents 1 to 4 from evicting the petitioner and his tenants from the property of 3.875 cents in Sy.No.68 in Mattancherry Village and the appurtenant buildings bearing Door Nos.CC VI/1263 to 1270. ii) To declare that the property of the petitioner having an extent of 3.875 cents in Sy.No.68 in Mattancherry Village and the appurtenant buildings bearing Door Nos.CC.VI/1263 to 1270 is not connected with any of the attachment/forfeiture proceedings against the 5th respondent. iii) To grant such other reliefs which are deem fit and proper in the circumstances of the case. iv) To award cost of the petitioner for this proceedings from the respondents.” 2. The grievance of the petitioner is that the respondents are seeking to forcibly evict the petitioner and his tenants from the property described in the prayer of the writ petition. The petitioner WP(C) No.30071 of 2010 - 2 - claims that the property admeasuring an extent of 3.875 cents of land with a building thereon was purchased by the petitioner by a registered sale deed dated 9.6.2008. The vendor is none other than the mother of the petitioner. It is asserted in the writ petition that the mother of the petitioner purchased the property from the 5th respondent herein on 29.8.1992 by a registered sale deed. At paragraph 5 of the writ petition it is stated as follows: “As a family settlement of the property, the same was purchased by the petitioner by Ext.P1 sale deed.” It is not clear as to the exact nature of the transaction by which the petitioner acquired, if at all, any legal right in the property. 3. Complaining that the respondents are trying to evict the petitioner and his tenants the instant writ petition is filed. 4. It may be mentioned here that the petitioner's mother admittedly purchased the property from the 5th respondent. The 5th respondent and her other family members suffered proceedings under the provisions of Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 by which certain properties of the 5th respondent and other members of her family were confiscated by the State. WP(C) No.30071 of 2010 - 3 - 5. Except asserting that the petitioner's mother legally purchased the property from the 5th respondent, the petitioner did not even disclose the nature of the liability which the 5th respondent suffered under the above mentioned Act. Orders of confiscation against the 5th respondent were passed as long back as on 8.12.1994. However, the petitioner filed an application, I.A.No.14141 of 2010, praying that an additional document be received by this Court as Exhibit P8 in the writ petition. The said document is dated 17.8.2005, issued by the Competent Authority under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) & Narcotic Drugs and Psychotropic Substances Acts. It can be seen from the above that proceedings were initiated against the 5th respondent and other members of the family under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act. The exact date of the initiation of the proceedings is not available from the said document. However, it appears, an order dated 17.11.1994 is passed under Section 7(1) of the Act forfeiting the properties specified therein to Government of India. The relevant portion of the said document reads as follows: WP(C) No.30071 of 2010 - 4 - “1. Proceedings were initiated against Smt.Sajitha, W/o.Sri.V.H.Subhair, S/Sri.H.Habeeb, H.Salim and V.H.Ibrahim brothers of Sri.V.H.Subhair, No.VI/1214 Kottikulam Road, Mattancherry, Cochin-2 under SAFEM (POP) Act, 1976. 2.An order dated 17.11.1994 under Section 7(1) of SAFEM (FOP) Act 1976 vide F.No.OCA/MDS/2730/2733/88 was passed by the Competent Authority, Chennai for forfeiture of the following buildings and lands. Subsequently, two separate orders under Section 19(1) of the SAFEM (FOP) Act, 1976 dated 08.12.1994 vide F.No.OCA/MDA/2730/2733/88 (copies enclosed) were also passed for the surrender of the said forfeited properties endorsing the copies of the orders to you:- i) Two storied building bearing Door No.VI/1211 and VI/1212 with land measuring 3- 7/8 cents situated at S.No.67 of Mattancherry Village, Cochin. ii) Building No.CC.VI/1213 to 1222 and land measuring 3.585 cents in S.No.67, in Mattancherry Village, Cochin jointly owned by Smt.Sajitha, S/Sri.H.Habeeb, H.Salim and V.H.Ibrahim each having right, title and interest of 1/4th share. 3. Meanwhile, the above persons had preferred an appeal before the Appellate Tribunal for Forfeited Properties, New Delhi which confirmed the forfeiture order passed by the Competent Authority, Chennai vide its order FPA No.I/MDS/95 dated 06.09.1996. Consequent to the ATFP order, the letter cited in Ref.(2) above (copy enclosed) requesting you to take immediate possession of WP(C) No.30071 of 2010 - 5 - the forfeited properties was addressed to you. 4. Aggrieved by the ATFP order, the persons affected had approached the Hon'ble High Court of Kerala by filing O.P.15835/1996 with a prayer to quash the orders of the Competent and the ATFP. The take over possession of the impugned properties has not been persuaded further as there was an interim stay by the Hon'ble High Court. The Division Bench of the Hon'ble High Court of Kerala now vide its order dated 16.2.2005 (copy enclosed) dismissed the O.P. filed by the persons affected”. It may be mentioned here that Section 7 of the abovementioned Act authorises forfeiture of the property and the property so forfeited shall vest with the Central Government free from all encumbrances. Apart from that, Section 11 of the Act declares that any transfer of the property, which is subject matter of forfeiture order, during the pendency of the proceedings for forfeiture shall be null and void. Section 11 reads as follows:- “11. Certain transfers to be null and void.- Whereafter the issue of a notice under section 6 or under section 10, any property referred to in the said notice is transferred by any mode whatsoever such transfer shall, for the purpose of the proceedings under this Act, be ignored and if such property is subsequently forfeited to the Central Government under section 7, then, the transfer of such property shall be deemed to be null and void”. WP(C) No.30071 of 2010 - 6 - It appears from the above extracted document that the final order of forfeiture dated 17.11.1994 was passed in a file dated back to 1988, i.e. F.No.OCA/MDS/2730/2733/88. Obviously, the proceedings were initiated long time prior to the final order. Admittedly, the petitioner's mother purchased the property from the 5th respondent only in the year 1992, in which case the transaction is hit by Section 11. 6. The petitioner approached this Court with a prayer which on the face of it appears to be very innocuous without disclosing the full facts. We are of the opinion that the petitioner has not approached this Court with clean hands. The writ petition is therefore dismissed at the admission stage. J.Chelameswar, Chief Justice P.R.Ramachandra Menon, Judge vns/vku.