Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS MONDAY, THE 04TH DAY OF JANUARY 2021 / 14TH POUSHA, 1942 Con.Case(C).No.1909 OF 2020 IN WP(C). 15371/2020 AGAINST THE JUDGMENT DATED 12.08.2020 IN WP(C) 15371/2020(V) OF HIGH COURT OF KERALA PETITIONER/PETITIONER IN WP(C0: B.INDIRA DEVI AGED 79 YEARS W/O.RAMESAN, RESIDING AT T.C.37/852, PRESENTLY T.C.80/971, SUMTHRIPTHI, RAJADHANI BUILDINGS, EAST FORT, THIRUVANANTHAPURAM-695 023. BY ADVS. SRI.K.C.ELDHO SRI.MALLENATHAN.M. SRI.M.SREEBHADRAN RESPONDENT/1ST RESPONDENT IN WP(C): MRS.BINI.K.U. (FATHER'S NAME AND AGE NOT KNOWN TO THE PETITIONER), SECRETARY, THIRUVANANTHAPURAM CORPORATION, THIRUVANANTHAPURAM-695 001.
R1 BY ADV. SRI.N.NANDAKUMARA MENON (SR.) R1 BY ADV. SRI.P.K.MANOJKUMAR THIS CONTEMPT OF COURT CASE (CIVIL) HAVING BEEN FINALLY HEARD ON 04.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: in
ALEXANDER THOMAS, J.
=========================== in =========================== Dated this the 04th day of January, 2021
JUDGMENT
The aforecaptioned contempt of court case has been filed alleging non-compliance of the directions issued by this Court in Annexure-A1
judgment dated 12.08.2020 rendered in W.P(C)No.15371/2020 filed by the
petitioner herein.
2. Heard Sri.K.C.Eldho, learned counsel appearing for the
petitioner in the C.O(C)/writ petition and Sri.N.Nandakumara Menon, learned Senior Counsel instructed by Sri.P.K.Manojkumar, learned Standing Counsel for Thiruvananthapuram Municipal Corporation Secretary appearing for the respondent in the C.O(C)/R1 in the W.P(C) (Municipal Corporation Secretary).
3. This Court on the previous occasion had passed an order on 21.12.2020 in this case, which reads as follows: “The above contempt of court case has been filed alleging non- compliance of the directions issued by this Court in Annexure-A1
judgment dated 12.08.2020 in W.P(C) No.15371/2020.
in
2. On the previous occasion, this Court had passed an
order dated 01.12.2020 in this contempt case, which reads as follows :
“Sri.N.Nandakumara Menon, learned Senior Counsel instructed by Sri.P.K.Manoj Kumar, learned Standing Counsel for the Thiruvananthapuram Municipal Corporation would fairly submit that he has already given strict instructions and directives to the respondent-Municipal Corporation Secretary to immediately comply with the various directions and orders passed by this Court in Annexure-A1 judgment dated 12.08.2020 in W.P(C)No.15371/2020 and seeks short time by two weeks to report compliance. Further that, the respondent-Municipal Corporation Secretary and the other Municipal Corporation officials concerned are now faced with overload of work especially in view of the ongoing local body election, which may be culminated only by the 3 rd/4th week of December, 2020 and also the various responsibilities arising out of the COVID-19 pandemic issues. The plea for time is not seriously opposed by the petitioner.
List the case on 18/12/2020.”
3. A reading of Annexure-A1 judgment would make it clear
that the respondent-Municipal Corporation authorities themselves had submitted before this Court that on the allegation raised by the writ petitioner regarding unauthorized construction of the contesting respondent No.2 in the W.P(C), the stop memo has already been issued on behalf of the respondent-Municipal Corporation Secretary directing the said contesting respondent No.2 in the W.P(C) to stop such construction.
4. Today when the matter has been taken up for
consideration, Sri.K.C.Eldho, learned counsel appearing for the petitioner would submit on the basis of instructions that the petitioner has been served with a copy of the proceedings dated 02.12.2020 issued by the respondent-Municipal Corporation Secretary stating that no action can be taken against the unauthorized construction, as the respondent-Municipal Corporation is not in a position to identify the owner of the subject building, which involves the unauthorized construction and that the said order passed by the respondent- Municipal Secretary is nothing but a contumacious act and in flagrant violation of the directions issued by this Court in Annexure- A1 judgment dated 12.08.2020 in W.P(C) No.15371/2020.
5. The explanation offered by the respondent in the statement filed on his behalf is not satisfactory. It is seen that the respondent virtually admits that the construction is unauthorized. in
There cannot be any difficulty for the respondent to ascertain whether the construction is unauthorized as per the building Rules. The respondent should explain to this Court in a case where the construction is found to be unauthorized, then no action will be taken therein by the respondent, merely because a party raises disputes about the ownership of the structure. The respondent has not stated any details of the pending civil litigation regarding the so called rival claims of ownership, other than blandly stating that there are civil disputes. The details of such alleged civil disputes are not forthcoming. So the respondent should state as to whether he would not take any action against such unauthorized constructions, if there are any ownership disputes. The respondent should convince this Court that such stand is not against the statutory mandate to take action against unauthorized construction and that he is not conferred with any powers to deal with such situations as per the Kerala Municipality Act and the Building Rules.
6. The respondent-Officer shall be personally present
before this Court on the next posting date with the entire files leading to the said impugned order dated 02.12.2020 to explain and convince this Court about the action taken by him and that it is in proper and effective compliance of the directions in Annexure-A1 judgment. However, the respondent will be at liberty to withdraw the above order dated 2.12.2020 and to take effective and faithful action to comply with the directions in Annexure-A1 judgment, within a reasonable time of 1 month after hearing both sides, and if such stand is taken, the respondent need not be present on the next posting date and the same may be apprised to this Court through counsel.
7. The petitioner’s counsel will forward a copy of this
order to the respondent-Officer by registered speed post with
acknowledgment due. List at 10.15 a.m. on 04/01/2021 in Court No.6A.”
4. Today when the matter has been taken up for consideration,
Sri.N.Nandakumara Menon, learned Senior Counsel instructed by Sri.P.K.Manojkumar, learned Standing Counsel for Thiruvananthapuram Municipal Corporation Secretary appearing for the respondent-Officer in would submit on the basis of instructions that taking note of the aspects dealt with in this Court's order dated 21.12.2020 and various other aspects of the matter, the respondent-Officer would immediately and unconditionally withdraw the proceedings No.FE2/58497/19 dated 02.12.2020 issued by the said respondent-Officer (produced as Annexure- A5 by the petitioner and as Annexure-R1 by the respondent) and that steps will be taken to hear both the parties concerned afresh and then, take a decision in the matter, in accordance with law, after taking into account all relevant aspects of the matter and that time by one month in that regard may be granted to the respondent-Officer. Further, Sri.N.Nandakumara Menon, learned Senior Counsel would submit on the basis of instructions that as it is clear from the abovesaid Annexure-R1 order dated 02.12.2020, the petitioner had not even cared to attend the personal hearing on the previous occasion and that to avoid any further controversy, this Court may direct both the petitioner herein as well as contesting respondent No.2 in Annexure-A1 W.P(C) No.15371/2020 to attend to the personal hearing and to produce all relevant documents in the matter and also to submit their written submissions in the matter, along with all supporting documents, etc. in
5. Per contra, Sri.K.C.Eldho, learned counsel appearing for the
petitioner would submit on the basis of instructions that the abovesaid factual submission made by the respondent-Officer is factually wrong and that on the hearing day in question, the petitioner was represented through her authorized counsel and had also produced the documents referred to in this contempt petition as Annexures-A7 & A8, etc. To a specific query, as to whether inspection in the matter has been conducted, this Court is now apprised by the learned Senior Counsel appearing for the respondent- Officer on the basis of instructions that the inspection was in fact conducted in the matter and copy of the inspection report will also be given to the petitioner and the opposite party concerned and if this Court so directs that fresh inspection could also be conducted in the matter with due prior notice to both sides and if that be so, time by more than one month may be granted for taking considered decision in the matter.
6. Accordingly, it is ordered that the respondent-Officer will
ensure that copies of the inspection report should be immediately sent by registered speed post to both the petitioner herein as well as the contesting respondent in the W.P(C). Further the learned Standing Counsel for the respondent-Thiruvananthapuram Municipal Corporation will ensure that a in copy of the said inspection report with all the enclosures, if any, should also be given to Sri.K.C.Eldho, learned counsel appearing for the petitioner, within a day or two. To avoid any further controversy, it is also ordered that the respondent-Officer may also conduct fresh inspection of the subject property through an authorized Municipal Corporation official and such inspection should be conducted with due prior notice to both sides and copies of the said additional inspection report should also be given to both sides in advance and thereafter only, the notice of personal hearing should be issued to both sides.
7. Taking note of the abovesaid aspects, it is ordered that the
respondent-Officer may thereafter issue notice of personal hearing to both the abovesaid parties concerned, upon which the said parties will ensure that their written submissions in the matter, along with all supporting documents are filed before the respondent-Officer, within the stipulated time and should also ensure attending the personal hearing either in person or through their authorized representative/authorized counsel, if any. If any of the parties does not appear for the personal hearing on the designated hearing day, the respondent-Officer will be at liberty to proceed with the matter on the basis of existing materials. Fresh orders in the in matter may be duly passed by the respondent-Officer, without much delay, preferably within a period of four weeks, at any rate, within an outer time limit of six weeks from the date of receipt of a certified copy of this
judgment.
8. Further, the proceedings issued by the respondent-Officer,
unconditionally withdrawing Annexure-R1 order dated 02.12.2020 may be issued to both the petitioner and contesting respondent No.2 in the W.P(C). In the light of the abovesaid fair stand taken by Sri.N.Nandakumara Menon, learned Senior Counsel appearing for the respondent-Officer, there is no necessity for this Court to keep this contempt petition pending any longer. With these observations and directions, the above Contempt of Court Case (Civil) will stand disposed of. Sd/- ALEXANDER THOMAS JUDGE vgd in APPENDIX PETITIONER'S/S EXHIBITS: ANNEXURE A1 THE CERTIFIED COPY OF THE JUDGMENT IN WPC NO.15371 OF 2020 DATED 12.8.2020. ANNEXURE A2 A TRUE COPY OF THE COVERING LETTER SEND TO
THE RESPONDENT ALONG WITH THE CERTIFIED COPY OF THE JUDGMENT AND THE COPY OF THE WRIT PETITION WITH ALL EXHIBITS AND ADDITIONAL REPRESENTATION DATED 7.9.2020.
ANNEXURE A3 A TRUE COPY OF THE ACKNOWELDGEMENT CARD SIGNED BY THE RESPONDENT ACKNOWLEDGING THE RECEIPT OF ANNEXURE A2 ON 11.9.2020. ANNEXURE A4 A TRUE COPY OF THE ADDITIONAL REPRESENTATION DATED 31.8.2020 SUBMITTED BY THE PETITIONER ALONG WITH THE ANNEXURE A2. ANNEXURE A5 A COPY OF THE ORDER DATED 2.12.2020 ISSUED BY THE RESPONDENT CLAIMING TO BE IN COMPLIANCE OF ANNEXURE A1 JUDGMENT OF THIS HON'BLE COURT ANNEXURE A6 A COPY OF THE NOTICE BEARING NO.FE2/58497/19 DATED 11.11.2020 ISSUED BY THE RESPONDENT ANNEXURE A7 A COPY OF THE WRITTEN STATEMENT SUBMITTED BY THE PETITIONER ON 19-11-2020 ANNEXURE A8 A COPY OF THE SKETCH SUBMITTED BY THE PETITIONER AS DEMANDED BY THE EXECUTIVE ENGINEER OF THE RESPONDENT RESPONDENT'S ANNEXURES:
ANNEXURE R1 THE PHOTOSTAT COPY OF THE ORDER
NO.FE2/58497/19 DATED 2-12-2020 PASSED BY THE SECRETARY, THIRUVANANTHAPURAM CORPORATION