IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 29TH OCTOBER 2008 / 7TH KARTHIKA 1930 WA.No. 2117 of 2008() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.23985/2008 Dated 18/08/2008 .................... APPELLANT(S): PETITIONERS: ------------------------------------------------ 1. P.V.MOHANAKUMARAN, S/O.VASU KURUP, AGED 49, PADINJAREMECHERIYATH HOUSE, ANGADICKAL NORTH P.O., KAIPATTOOR VIA, PATHANAMTHITTA, NOW WORKING AS JUNIOR SUPERINTENDENT RESURVEY OFFICER, KASARGODE. 2. A.GOPAKUMAR, S/O.ATHICHAPILLAI, AGED 47, LAKSHMI BHAVANAM, KORATTIKOD, MANNAR P.O., NOW WORKING AS SPECIAL TAHASILDAR, L.A (GENERAL), PATHANAMTHITTA. BY ADV. SRI.S.SREEKUMAR RESPONDENT(S): RESPONDENTS: ----------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, REVENUE (D) DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR, VIGILANCE & ANTI CORRUPTION BUREAU, TRIVANDRUM. SR.GOVERNMENT PLEADER SRI.BENNY GERVACIS FOR R1-2 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 29/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss J.B. Koshy & K.P.Balachandran, JJ. -------------------------------------- W.A.No. 2117 of 2008 --------------------------------------- Dated this the 29th day of October, 2008 Judgment Koshy,J. The first petitioner/first appellant is at present working as Junior Superintendent in Resurvey Office, Kasaragod. The second petitioner/second appellant is working as Additional Tahsildar, L.A. (General), Pathanamthitta. During the period 2002-2003, the first petitioner was working as Village Officer, Aruvappulam Village, Kozhencherry Taluk, Pathanamthitta district. In October, 2005, second petitioner was working as Additional Tahsildar, Kozhencherry Taluk. During the above period, six documents were executed by Edamana Madom as the Jenmi of the property in respect of 391 acres and 25 cents of land. The above documents were duly registered by the Sub Registry. The purchaser produced six documents before the Tahsildar, Kozhencherry for effecting mutation of registry. The Tahsildar forwarded the three applications to the then Village Officer, first appellant and the Village Officer effected mutation of registry in respect of document Nos.772, 773 and 774 of 2004 on 18.3.2004. Meanwhile, before effecting W.A.No.2117/2008 2 mutation on the other three documents Malayalam Plantations objected to the transfer of registry. The District Collector enquired into the allegations. The District Collector also advised Harrisons Malayalam Limited by Ext.P11 dated 14.9.2004 to file statutory appeal if they are aggrieved by the mutation effected. The letter of the District Colector dated 14.9.2004 read as follows: "Your petition against the Village Officer Aruvappulam is being investigated. Since the contents of the petition is against the mutation of the land effected by the Village Officer, Aruvappulam, it involves litigation that it has to be decided in appeal. So, if you are aggrieved in the mutation of land you may prefer an appeal as per rules before the competent appellate authority." 2. According to Malayalam Plantations Limited (later named as Harrisons Malayalam Limited), the property was already transferred in their name as they obtained lease of this property and mutation was effected in their favour. The District Collector conducted enquiry and found that the Elamana Madom was the real owner of the property. Annexure I produced along with the appeal is the enquiry report. Findings as summarised by the enquiry officer is as follows: "I. The Edamana Madom - the Jenmi - is the absolute owner and title holder in respect of W.A.No.2117/2008 3 the entire schedule property of 2619.54 acres except 13.25 acres of which the title holders are the defendents in the original suits referred to and the pattadars. The Company - Harrisons Malayalam Limited - has no manner of right of ownership and title over the schedule property. II. Mutation effected in 1959 in the name of the Company - Harrisons Malayalam Limited - is invalid as unsustainable for want of ownership and title over the schedule property. III. The Company has no manner of right for fixity of tenure as a cultivating tenant over the schedule property as it has not been vested with the Government under the Kerala Land Reforms Act. IV. The schedule property is not vested with the Government as forest land or vested forest land under any law of forest in force. V. The transfer of registry of 391.25 acres in 401.27 acres of land and the mutation effected thereon in 2004 stand valid. VI. The possession certificates issued thereafter are genuine as the Jenmi - the seller - has got right of possession by virtue of absolute ownership and title over the schedule property. VII. The allegation of the Company - Harrisons Malayalam Limited - that natural justice has been denied to them is factually incorrect by evidence. ................. " The contention that one of the transferees was daughter of the first appellant was also considered in the report. Registration of sale W.A.No.2117/2008 4 deed was done by the Sub Registrar. There is no bar in affecting mutation in favour of close relatives. In the F.I.R.(Ext.P12), there is no allegation regarding the source of income of purchasers or the family of the village officer. The District Collector also found that the source of income for the buyers etc. or the source of income of the Village Officer and his family etc. can be enquired into. 3. Because of the complaint, pending enquiry report, second appellant did not register the mutation in favour of the purchasers on the basis of balance three documents. After the enquiry, District Collector directed the Additional Tahsildar, second appellant, as follows by Annexure II order dated 28.10.2005: "Your attention is invited to the references cited. You may note that after the direction issued from this office on 22.7.2004 an enquiry was ordered by the District Collector in the matter. A copy of the enquiry report is sent herewith. You are directed to take necessary action in the matter in accordance with law." Accordingly, second appellant also effected mutation with regard to the other documents forwarded to him on the directions of the District Collector. 4. The first appellant was suspended from service pending disciplinary action alleging irregularities in the transfer of W.A.No.2117/2008 5 mutation in the name of purchasers by Ext.P13 order dated 18.1.2006. On 3.2.2006 a detailed report was submitted by the District Collector. Amongst various matters, it was also reported as follows: "(g) The Malayalam Plantation or HML were not challenging the mutation effected by the Village Officer in 2004 and the Tahsildar in 2005 till date. No pokkuvaravu appeals were filed by the petitioner company so far in spite of repeated reminders in the appropriate forum of justice. (h) Subsequently in the light of the enquiry report of the Deputy Collector (LR) sthe District Collector on the request of the Tahsildar gave direction to the Tahsildar, Kozhencherry on 28.10.2005 with a copy of enquiry report of the Deputy Collector for taking further action according to law. The Tahsildar effected mutation on 19.10.2005 for the three cases which were kept pending in his office from March, 2004 onwards. (i) The District Collector was also pleased to issue a direction to the M/s. Harrisons Malayalam Plantations Ltd. on 14.9.2004 to file pokkuvaravu appeals, if they were having any objection in effecting mutation (transfer of ownership) by the Village Officer in respect of three cases already done by him." No departmental proceedings were taken against the first appellant after suspension and he was reinstated on 25.6.2007 by Ext.P14 order. It states as follows: W.A.No.2117/2008 6 "Government have reviewed the case and are pleased to order that Sri.P.V.Mohanakumaran, under suspension be reinstated in service forthwith, without prejudice to the disciplinary action pending against him and on reinstatement he will be posted in a non- sensitive post. In the above circumstances, the suspension of Sri.P.V.Mohanakumaran, Deputy Tahsildar is revoked and he is reinstated in service and allotted to Kasaragod District. The District Collector, Kasaragod is hereby directed to give him suitable posting in a non- sensitive post and report compliance." First appellant was promoted subsequently and the first appellant is now working in the northern most district of Kasaragod, that is, far away from the place where the mutation was effected. First appellant remained under suspension for one and a half years. Thereafter only he was reinstated in service. Both the appellants were suspended by Ext.P15 order on registration of the case by the Vigilance. 4. It is the contention of the first appellant that on the basis of the registered document duly registered by the Sub Registry, he effected mutation. Secondly, it was contended that as seen by Annexure I order, there was no defect in the mutation effected. It is the case of the appellant that the F.I.R. filed against W.A.No.2117/2008 7 the petitioner is challenged in Criminal M.C. No.2995 of 2008 and that is pending. In view of Annexure I report of the District Collector there is no prima facie case against him and in any event he remained under suspension for one and a half years and then only reinstated and he is working in Kasaragod, far away from the alleged place. There is no likelihood of interference with the investigation and, therefore, there is no necessity for suspension. Even though power of suspension pending vigilance enquiry is not disputed, in all cases, an employee need not be suspended. It is the case of the second appellant that in view of the complaint, he did not make any mutation, but he affected mutation only after Annexure I report of the District Collector and Annexure II order directing him to make mutation. Therefore, merely because a vigilance case is registered against him, there is no justification for his suspension. It is also contended that the alleged incident occurred in 2004-2005. Three years have passed and merely because a vigilance case is registered, he need not be suspended especially when he has effected mutation only as per the direction of the District Collector. It is further contended that there is no allegation in the F.I.R. that the appellants or their family had got W.A.No.2117/2008 8 any unaccounted income. If there are irregularities in mutation, it can be corrected by appellate authorities. If the seller has no title, he cannot sell the land and even the registration of sale deed is void and proceedings can be taken by the aggrieved parties or statutory authorities to cancel. In view of the circumstances of this case, we are of the opinion that proceedings can be taken against the appellants without suspending employees. Government is free to transfer second appellant also to any distant place if the Government is of the opinion that his continuance in Pathanamthitta district will create any difficulties or problems in the investigation. We are not making any observation regarding the merits of the matter. In the above circumstances, Ext.P15 order is set aside without prejudice to the right of the Government in continuing the vigilance case and also the right of the Government in transferring the appellants to any place considering the administrative convenience and without prejudice to the right of the appellants in prosecuting Crl. M.C.No.2995 of 2008 according to law untrammeled by the observations in this judgment. Appellants should be reinstated immediately. After investigation, if appellants W.A.No.2117/2008 9 are charge-sheeted on the basis of materials collected in the investigation, Government is also free to reconsider the question of suspending the appellants according to law. If appellants are found guilty in the proceedings, Government is free to take appropriate action. The appeal is disposed of accordingly. J.B.Koshy Judge K.P.Balachandran Judge vaa W.A.No.2117/2008 10 J.B. KOSHY AND K.P.BALACHANDRAN,JJ. ------------------------------------- W.A.No. 2117/2008 ------------------------------------- Judgment Date:29th October,2008