Kerala High Court
Punjab National Bank vs Arjun Pandian on 13 August, 2021
Author: K.Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
FRIDAY, THE 13TH DAY OF AUGUST 2021 / 22ND SRAVANA, 1943
CON.CASE(C) NO. 1897 OF 2020
AGAINST THE ORDER IN WP(C) NO.24266/2016 OF HIGH COURT OF KERALA DATED
20.07.2016
PETITIONER/PETITIONER:
K.T.MARIYAKUTTY UMMA, AGED 74 YEARS
W/O.MOHAMMED, MUMTHAZ MANZIL, KAMALALAYAM ROAD, OTTAPALAM.
BY ADVS.
SANTHEEP ANKARATH
SMT.C.K.SHERIN
RESPONDENTS/3RD RESPONDENT & OTHERS:
1 ARJUN PANDIAN
(FATHER'S NAME AND AGE NOT KNOWN TO THE PETITIONER) SUB
COLLECTOR, OTTAPALAM-679101, PALAKKAD DISTRICT.
2 VIJAYA BHASKAR,
(FATHER'S NAME AND AGE NOT KNOWN TO THE PETITIONER) DEPUTY
TAHSILDAR, OFFICE OF THE TAHSILDAR, OTTAPALAM-679101,
PALAKKAD DISTRICT.
3 M.SREENIVAS,
(FATHER'S NAME AND AGE NOT KNOWN TO THE PETITIONER) DEPUTY
TAHSILDAR, OFFICE OF THE TAHSILDAR, OTTAPALAM-679101,
PALAKKAD DISTRICT.
4 K.GIREESH KUMAR,
(FATHER'S NAME AND AGE NOT KNOWN TO THE PETITIONER) DEPUTY
TAHSILDAR, OFFICE OF THE TAHSILDAR, OTTAPALAM-679101,
PALAKKAD DISTRICT.
5 T.P.KISHORE,
(FATHER'S NAME AND AGE NOT KNOWN TO THE PETITIONER) SENIOR
SUPERINTENDENT, OFFICE OF THE TAHSILDAR, OTTAPALAM-679101,
PALAKKAD DISTRICT.
6 R.RAJESH,
ASSISTANT ENGINEER, PWD ROADS, OTTAPALAM-679101, PALAKKAD
DISTRICT.
7 ABDUL MAJEED, TAHSILDAR (LAND RECORDS) , OFFICE OF TAHSILDAR,
OTTAPALAM-679101, PALAKKAD DISTRICT
8 THE DIRECTOR
DEPARTMENT OF JUSTICE, MINISTRY OF LAW AND JUSTICE
BY SRI.M.L.SAJEEVAN, SPECIAL GP(REVENUE)
THIS CONTEMPT OF COURT CASE (CIVIL) HAVING COME UP FOR ADMISSION ON
13.08.2021, ALONG WITH CONT.CASE [CIVIL] NO.1964 OF 2020, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
FRIDAY, THE 13TH DAY OF AUGUST 2021 / 22ND SRAVANA, 1943
CON.CASE(C) NO. 1964 OF 2020
AGAINST THE ORDERS IN WP(C) NO.33897/2016 OF HIGH COURT OF KERALA DATED
21.10.2016, 18.11.2016 & 16.12.2016
PETITIONER/PETITIONER:
PUNJAB NATIONAL BANK
OTTAPALAM BRANCH, PALAKKAD DISTRICT, REPRESENTED BY ITS
SENIOR MANAGER BALACHANDRN M., S/O.LATE P.N.RAMAN NAIR,
AGED 57 YEARS, RESIDING AT HARE KRISHNA, KANAYAM ROAD,
KULAPPULLY, SHORNUR - 679 122, PALAKKAD DISTRICT.
BY ADV K.P.SUDHEER
RESPONDENTS/3RD RESPONDENT AND ANOTHER:
1 ARJUN PANDIAN
(FATHER'S NAME AND AGE NOT KNOWN TO THE PETITIONER)
SUB COLLECTOR, OTTAPALAM - 679 101, PALAKKAD DISTRICT.
2 ABDUL MAJEED
(FATHER'S NAME AND AGE NOT KNOWN TO THE PETITIONER),
TAHSILDAR (LAND RECORDS), OFFICE OF THE TAHSILDAR,
OTTAPALAM - 679 101, PALAKKAD DISTRICT.
*ADDL.3 DISTRICT COLLECTOR, PALAKKAD.
* ADDL.R3 IS SUO MOTU IMPLEADED AS PER JUDGMENT DATED
13.08.2021.
BY SRI.M.L.SAJEEVAN, SPECIAL GP (REVENUE)
THIS CONTEMPT OF COURT CASE (CIVIL) HAVING COME UP FOR ADMISSION ON
13.08.2021, ALONG WITH CONT.CASE [CIVIL] NO.1897 OF 2020, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
Cont.Case (C) No.1897 of 2020 etc. 4
K.Vinod Chandran, J.
------------------------------------------
Cont.Case (C) No.1897 of 2020
in
W.P(C)No.24266 of 2016
&
Cont. Case (C) No.1964 of 2020 in
W.P(C) No. 33897 of 2016
------------------------------------------
Dated this the 13th August, 2021
JUDGMENT
The above contempt cases arise from interim orders passed in the respective writ petitions. The writ petitions challenged notices issued by the Additional Tahsildar, Ottappalam under the Kerala Land Conservancy Act, 1957 (for brevity "KLC Act") alleging that the writ petitioners were in possession of puramboke property abutting the public road. The petitioners allege that the notices were ill motivated and pursuant to a programme titled 'Operation Ananda' at the instance of the District Collector and the concerned Sub Collectors. The petitioners allege that under a road widening scheme of the Kerala State Transport Project already portions of the properties owned by the petitioners were acquired and compensation paid. The present attempt styling the buildings constructed by the petitioners, in their possession and ownership, as having been constructed in puramboke land is an Cont.Case (C) No.1897 of 2020 etc. 5 illegal malafide attempt to take over private properties without paying compensation; is the allegation raised.
2. This Court in W.P(C) No.24266 of 2016, from which C.O.C 1897/2020 arises, passed an interim order dated 26.06.2016 produced as Annexure A1:
"Admit. Government Pleader takes notice for respondents. The proceedings under Ext.P4 shall be continued, but if any adverse order is passed against the petitioner, then the same shall not be given effect to, unless further orders are obtained from this Court."
The petitioner immediately on being informed of the adverse order passed, informed the Sub Collector the 1 st respondent about the order passed in the writ petition as per Annexure A4. With scant regard to the interim order passed, the Sub Collector garnered forces and demolished portions of the building on 22.11.2020, a Sunday. The paper report with respect to the demolition is produced as Annexure A5 and the photographs before demolition, in the process of the same and after it, are produced as Annexure A6 series.
3. Likewise in W.P(C) No. 33897/2016, there was an interim order of stay of the proceedings pursuant to the notice Cont.Case (C) No.1897 of 2020 etc. 6 and eviction of the petitioner for one month, as per Annexure A1, which stood extended for another month by Annexure A2 and until further orders as per Annexure A3. C.O.C No.1964/2020 was filed alleging that a final order was passed as per Annexure A3 and notice was issued at Annexure A3 with an accompanying notice for eviction. It is the contention of the petitioner therein, that pursuant to the notice issued under the Kerala Land Conservancy Act, when the matter was pending before the Thahasildar, a notice was earlier issued by the Sub Collector for a hearing on 20.02.2019 produced at Annexure A6. On receipt of Annexure A5 order the petitioner responded with an e-mail produced as Annexure A7 pointing out the order passed by this Court in the writ petition, alleging contempt of the interim order, a copy of which was enclosed.
4. Both the petitioners filed the above contempt cases and notices were issued. The 1st respondent filed an affidavit in response to the contempt case specifically referring to Office Memorandum dated 13.06.2018 issued by the 8th respondent which has specific reference to a decision of the Hon'ble Supreme Court which is seen reported as Asian Resurfacing of Road Agency Pvt. Ltd. Vs. Central Bureau of Investigation [2018 (16)SCC 299]. This Court specifically asked the 1st respondent Cont.Case (C) No.1897 of 2020 etc. 7 contemnor whether he had read the decision of the Hon'ble Supreme Court which was answered in the affirmative. Also in the context of the 1st respondent having owned up the responsibility for the acts committed, this Court was of the opinion that the other respondents need not be proceeded with and their further appearance was not insisted upon. The 1st respondent has filed a further affidavit dated 11.08.2021. unconditionally apologizing for the action taken in violation of the interim orders passed in the writ petitions.
5. That the action of the 1 st respondent prima facie makes out a case of clear contempt cannot be disputed. Before this Court looks at the contempt; the decision of the Hon'ble Supreme Court in Asian Resurfacing has to be understood. The operative portion of the decision in Paragraphs 36, 37 and 38 are extracted here under:
"36. In view of the above, situation of proceedings remaining pending for long on account of stay needs to be remedied. Remedy is required not only for corruption cases but for all civil and criminal cases where on account of stay, civil and criminal proceedings are held up. At times, proceedings are adjourned sine die on account of stay. Even after stay is vacated, intimation is not received and proceedings are not taken up. In an attempt to Cont.Case (C) No.1897 of 2020 etc. 8 remedy this situation, we consider it appropriate to direct that in all pending cases where stay against proceedings of a civil or criminal trial is operating, the same will come to an end on expiry of six months from today unless in an exceptional case by a speaking order such stay is extended. In cases where stay is granted in future, the same will end on expiry of six months from the date of such order unless similar extension is granted by a speaking order. The speaking order must show that the case was of such exceptional nature that continuing the stay was more important than having the trial finalised. The trial court where order of stay of civil or criminal proceedings is produced, may fix a date not beyond six months of the order of stay so that on expiry of period of stay, proceedings can commence unless order of extension of stay is produced.
37. Thus, we declare the law to be that order framing charge is not purely an interlocutory order nor a final order. Jurisdiction of the High Court is not barred irrespective of the label of a petition, be it under Sections 397 or 482 CrPC or Article 227 of the Constitution. However, the said jurisdiction is to be exercised consistent with the legislative policy to ensure expeditious disposal of a trial without the same being in any manner hampered. Thus considered, the challenge to an order of charge should be entertained in a rarest of rare case only Cont.Case (C) No.1897 of 2020 etc. 9 to correct a patent error of jurisdiction and not to reappreciate the matter. Even where such challenge is entertained and stay is granted, the matter must be decided on day-to-day basis so that stay does not operate for an unduly long period. Though no mandatory time-limit may be fixed, the decision may not exceed two-three months normally. If it remains pending longer, duration of stay should not exceed six months, unless extension is granted by a specific speaking order, as already indicated. Mandate of speedy justice applies to the PC Act cases as well as other cases where at trial stage proceedings are stayed by the higher court i.e. the High Court or a court below the High Court, as the case may be. In all pending matters before the High Courts or other courts relating to the PC Act or all other civil or criminal cases, where stay of proceedings in a pending trial is operating, stay will automatically lapse after six months from today unless extended by a speaking order on the above parameters. Same course may also be adopted by civil and criminal appellate/Revisional Courts under the jurisdiction of the High Courts. The trial courts may, on expiry of the above period, resume the proceedings without waiting for any other intimation unless express order extending stay is produced.
38. The High Courts may also issue instructions to this effect and monitor the same so that civil or criminal proceedings do not remain pending for Cont.Case (C) No.1897 of 2020 etc. 10 unduly long period at the trial stage."
It is very clear that the decision deals specifically with corruption cases and also civil and criminal cases pending before the various Courts, and the pending trials in such cases as distinguished from quasi judicial proceedings which this Court was concerned with in the writ petitions from which the contempt cases arise. Pertinently it is to be pointed out that in Cont.Case(C)No.1897/2020 there was no stay order passed and the authority who issued the notice was permitted to continue the proceedings with a rider that on conclusion of the proceedings if an adverse order is passed against the petitioner, then the same shall not be given effect to without further orders from this Court. An adverse order was passed as seen from Annexure A3, which action cannot be faulted, especially since the said order referred to the writ petition and was made subject to the final order in the writ petition. Appropriately the Revenue Authorities ought to have approached this Court and sought for further directions in the matter which was not done. A peremptory action was taken at the instance of the Sub Collector on the very next day of the communication of the order, that too on a Sunday. The 1 st respondent Sub Collector has taken responsibility for the said Cont.Case (C) No.1897 of 2020 etc. 11 act, for which he himself garnered forces. This was with scant regard to the rider, of the final order in the proceedings being subject to further orders in the W.P (C), as discernible from the order itself.
6. As far as Cont.Case(C)No.1964/2020 is concerned the order passed itself was in contempt of the interim order passed in the writ petition since the entire proceedings were stayed. It is also seen that after more than two years of the interim order passed, a notice was issued from the Office of the Sub Collector posting the matter for a hearing before the Sub Collector. This itself indicates interference by the Sub Collector in the statutory powers conferred on the authority who issued the notice and passed the order. Obviously under S.15 of the KLC Act, the Tahsildar (Land Records) was authorised to exercise all or any of the powers conferred on the Collector. An appeal is provided from the order passed under S.16 of the Act. S.16(1)(a) confers the power to consider an appeal on the Collector if the order is passed by the RDO and in all other cases on the RDO, ie, the Sub Collector who is the 1st respondent herein. The instant orders are passed by the Tahsildar (Land Records) from which the appeal lies to the RDO (Sub Collector). Evidently the 1st respondent who was occupying Cont.Case (C) No.1897 of 2020 etc. 12 the post of RDO and who was conferred with the appellate power, acted over zealously in violation of the statutory mandate and exhorting his subordinate officers to flout the interim orders passed by this Court.
7. This Court is surprised that despite the officer having accepted before this Court, that he read the decision of the Hon'ble Supreme Court quoted in the O.M, he acted in clear contempt of the interim orders passed by this Court. However, we notice that there has been confusion caused by the OM issued by the Ministry of Law and Justice, Government of India. We quote the OM here:
"This Department has received a copy of Judgment dated 28.03.2018 in Criminal Appeal No.1375-1376 of 2013 passed by Hon'ble Supreme Court of India, through the Office of Hon'ble Prime Minister for forwarding to all concerned.
The implication of the aforesaid Judgment is that where any action by a development agency or an enforcement agency, as the case may be, was stayed by a court of law, the same shall stand vacated automatically at the expiry of 6 months from the date of the order i.e. 28.03.2018, unless the same is extended by a speaking order. Further, the judgment casts a responsibility on the court granting stay that the speaking order must show that the case was of such exceptional nature that continuing the stay was more Cont.Case (C) No.1897 of 2020 etc. 13 important than having the trial finalized. Also, in such cases where the stay is extended, the trial court has been directed to fix a date not beyond six months of the order of stay so that on expiry of period of stay, proceedings can commence.
The judgment of Hon'ble Supreme Court can be accessed at https://sci.gov.in/supremecourt/ 2011/27580/27580_judgement_28-Mar-2018.pdf"."
8. This Court heard the learned Assistant Solicitor General Sri.P.Vijayakumar in the matter also, who obviously could not justify the issuance of the OM importing the implication of the cited judgment to "any action by a development agency or an enforcement agency", which, with due respect, I do not find from the judgment of the Hon'ble Supreme Court. This Court hence directs the Registry to issue a certified copy of this judgment to the Director, Ministry of Law and Justice, Department of Justice, Government of India Jaisalmar House, 2G, Man Singh Road,New Delhi 110011 to look into the matter and issue necessary clarifications so as to not cause unnecessary confusion in the minds of the Executive Officers conferred with statutory powers to force their hands leading to contempt of valid orders passed by the Courts of Law, as has occurred herein.
9. Considering the fact that the O.M issued by the Cont.Case (C) No.1897 of 2020 etc. 14 Department of Justice gave rise to the aforesaid action and coupled with the fact that the 1st respondent has expressed unconditional apology before this Court, I am of the opinion that the contempt cases shall be closed without any further proceedings. The order from which the contempt arose produced as Annexure A3 in Cont.Case(C)No. 1897/2020 would be kept in abeyance for the petitioner to file an appeal from the said order. This Court notices that the 1 st respondent has been transferred on the specific directions issued by this Court and the incumbent Sub Collector would consider the appeal after obtaining directions in the writ petitions. The petitioner would be entitled to file an appeal within a period of one month from today, upon which the matter would be considered on merits without the delay being made an issue, after obtaining orders in the Writ Petition.
10. As far as the order passed in C.O.C 1964/2020, produced as Annexure A5, it is a fit case where the Collector of Palakkad who is suo moto impleaded as additional 3rd respondent revise the same suo motu under sub-section(2) of Section 16 of the KLC Act for reason of the same being in contempt of the interim order passed in the writ petition. Further proceedings under the KLC Act would be subject to Cont.Case (C) No.1897 of 2020 etc. 15 directions obtained in the writ petition.
11. In the context of the demolition carried out, this Court had directed payment of Rs.25000/- as cost in Cont.Case(C)No. 1897/2020. The learned Counsel for the petitioner submits that the damages are far more. This Court leaves liberty to the petitioner to take appropriate proceedings, which if taken and eventually damages ordered, the amounts paid on the direction in the contempt case shall be set off. This Court makes it clear that any damages awarded would be on independent evidence led and not on the basis of any observations made here, in the instant contempt cases; either the final order or the interim orders issued herein. The 1st respondent would be entitled to raise all contentions before the forum approached by the petitioner, if it is so done. With the above observations the contempt cases are closed making it clear that none of the observations would be taken as affecting the service of the 1st respondent.
Ordered accordingly.
Sd/-
K.Vinod Chandran, Judge jma/-
Cont.Case (C) No.1897 of 2020 etc. 16
APPENDIX OF CON.CASE(C) 1897/2020 PETITIONER'S EXHIBITS:
ANNEXURE A1 CERTIFIED COPY OF ORDER DATED 20.07.2016 IN WP(C) NO.24266 OF 2016 OF THIS HON'BLE COURT.
ANNEXURE A2 TRUE COPY OF ORDER NO.12-2016/7429/9/400 DATED 14.07.2016 ISSUED BY THE ADDITIONAL TAHSILDAR, OTTAPALAM (EXT.P4 IN WP(C)NO.242666/2016).
ANNEXURE A3 TRUE COPY OF ORDER DATED 20.11.2020 ISSUED BY TAHSILDAR (LAND RECORDS), OTTAPALAM AND SERVED ON THE PETITIONER'S SON AT 12.45 P.M. ON 21.11.2020. ANNEXURE A4 TRUE COPY OF EMAIL DATED 22.11.2020 SENT BY COUNSEL FOR THE PETITIONER TO THE 1ST RESPONDENT. ANNEXURE A5 TRUE COPY OF NEWS PAPER REPORT IN MATHRUBHOOMI DAILY DATED 23.11.2020.
ANNEXURE A6 PHOTOGRAPHS (8 NOS.) SHOWING DEMOLITION IN PROGRESS.
ANNEXURE A7 COPY OF THE TELEPHONIC CONVERSION BETWEEN COUNSEL FOR THE PETITIONER AND SON OF THE PETITIONER ON 21.11.2020 AND 22.11.2020.
RESPONDENTS' EXHIBITS:-
ANNEXURE R1(A) COPY OF OFFICE MEMORANDUM OF DEPARTMENT OF JUSTICE, GOVT.OF INDIA DATED 13.06.2018.
ANNEXURE R1(B) COPY OF ANNEXURE A3 ORDER CONTAINING THE ENDORSEMENT OF JASSIMUDHEEN DATED 21.11.2020.
ANNEXURE R1(C) COPY OF THE ORDER OF RESPONDENT NO.1 DATED 21.11.2020.
ANNEXURE R1(D) COPY OF THE MAHAZAR PREPARED BY THE VILLAGE OFFICER DATED 22.11.2020.
Cont.Case (C) No.1897 of 2020 etc. 17ANNEXURE R1(E) COPY OF THE BILL ISSUED FROM HOTEL REGENCY DATED 22.11.2020.
ANNEXURE R1(F) COPY OF THE LETTER DATED 04.01.2021. ANNEXURE R7(A) COPY OF THE LETTER DATED 04.01.2021. Cont.Case (C) No.1897 of 2020 etc. 18
APPENDIX OF CON.CASE(C) 1964/2020 PETITIONER'S ANNEXURE ANNEXURE A1 CERTIFIED COPY OF ORDER DATED 21/10/2016 IN WP(C) NO.33897/2016 OF THIS HON'BLE COURT. ANNEXURE A2 CERTIFIED COPY OF ORDER DATED 18/11/2016 IN WP(C) NO.33897/2016 OF THIS HON'BLE COURT. ANNEXURE A3 CERTIFIED COPY OF ORDER DATED 16/12/2016 IN WP(C) NO.33897/2016 OF THIS HON'BLE COURT. ANNEXURE A4 TRUE COPY OF THE AFFIDAVIT DATED 20/4/2017 FILED BY THE DEPUTY TAHASILDAR (INSPECTION AND AUDIT) OF OTTAPALAM TALUK IN WP(C) NO.33897/2016.
ANNEXURE A5 TRUE COPY OF NOTICE DATED 27/10/2020 ISSUED BY THE 2ND RESPONDENT.
ANNEXURE A6 TRUE COPY OF NOTICE NO.F.968/15 DATED 01/2019 ISSUED BY THE 1ST RESPONDENT.
ANNEXURE A7 TRUE COPY OF COMMUNICATION DATED 23/11/2020 ISSUED TO THE 2ND RESPONDENT BY THE PETITIONER'S ADVOCATE.
RESPONDENTS' EXHIBITS:-
ANNEXURE R1(A) COPY OF OFFICE MEMORANDUM DATED 13.06.2018.
ANNEXURE R1(B) COPY OF ORDER DATED 16.10.2020.
ANNEXURE R1(C) COPY OF LETTER DATED 04.01.2021.
ANNEXURE R2(A) COPY OF LETTER DATED 04.01.2021.