W.P.(C) No. 9027/2018 :1:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 7TH DAY OF JULY 2022 / 16TH ASHADHA, 1944
WP(C) NO. 9027 OF 2018
PETITIONER/S:
ASOK KUMAR S, AGED 54 YEARS, S/O.K.SUKUMARAN
NAIR,PROPRIETOR HOTEL VRINDAVANAM,T.C.4/2573,
KURAVANKONAM JUNCTION,THIRUVANANTHAPURAM.
BY ADVS.
SRI.BLAZE K.JOSE
SMT.KEERTHANA J. RAMESH
RESPONDENT/S:
1 ANILKUMAR PANDALA
PROJECT DIRECTOR, THIRUVANANTHAPURAM ROAD DEVELOPMENT
COMPANY LTD, 'UTHRADOM', PANAVILA JUNCTION,
THIRUVANANTHAPURAM-695 001.
2 STUART KEELERY
THE CIRCLE INSPECTOR OF POLICE,PEROORKADA,
THIRUVANANTHAPURAM-695 601.
3 STATE OF KERALA
REPRESENTED BY CHIEF SECRETARY,GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
4 ADDL.R4 IMPLEADED:
THE KERALA ROAD FUND BOARD
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, T.C.4/1654,
MAYOORAM, BELHAVEN GARDENS, P.O.KOWDIAR,
THIRUVANANTHAPURAM.
(ADDL.R4 IS IMPLEADED AS PER ORDER DATED 30/10/2018 IN
IA.01/2018)
W.P.(C) No. 9027/2018 :2:
BY ADVS.
SRI. TEKCHAND , SR. GOVERNMENT PLEADER
R4 BY SRI. V. KRISHNA MENON
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07.07.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No. 9027/2018 :3:
S. MANIKUMAR, CJ & SHAJI P. CHALY, J.
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W.P.(C) No. 9027 of 2018
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Dated this the 7th day of July, 2022.
JUDGMENT
SHAJI P. CHALY, J.
This writ petition is filed by the petitioner challenging Ext. P4 interim order dated 29.01.2018 passed by the Upa Lok Ayukta in Complaint No. 69/2018C. The said order reads thus:
" COMPLAINT NO. 69/18C ORDER Second respondent is served. But he has not appeared and there is no representation even on his behalf. First respondent is present in person. It is ascertained by the Circle Inspector of Police, Peroorkada that hotel Vrindavan is now being conducted in a building wherein earlier one hotel Aryas was being conducted and that ne hds ascertained that fact on contacting the second respondent over his mobile phone. The first respondent has submitted a report by way of statement of facts on this day. It is seen there from that on receipt of the complaint he has forwarded it to the S.I, Peroorkada Police Station; that the S.I registered the petition as petition No. 532/IPTN/2017B and that after preliminary enquiry he has registered crime No. 60/18 u/s 3(2)
(e) of PDPP Act on 08.01.2018 against the proprietor of hotel Vrindavan, Kuravankonam as accused. It is true that proceedings for the unauthorised act of cutting and removal of Railings will have to be charge sheeted against the proprietor of hotel Vrindavan after due investigation. But all the same it is not enough that the first respondent remains a passive spectator of W.P.(C) No. 9027/2018 :4: the illegal activities of the second respondent. It is seen that one Sri. K, Vasudevan the predecessor in occupation of the same building at Kuravankonam Jn. had filed WP (C) 16496/15 before the Hon'ble High Court complaining of the Kerala Road Fund Board having fixed handrails in front of his hotel. The Hon'ble High Court after hearing both sides have dismissed the writ petition observing as follows:
"The petitioner's hotel is located in a junction and is on the sIde of a curve of the road. There is no complete blocking of entry to petitioner's hotel. The traffic measures are taken for the public safety. Therefore, larger public interest is involved for taking such measures. The wisdom of offfcials in regulating traffic cannot be subjected to a judicial scrutiny. The facts disclose that, measures have been taken to protect the interests of pedestrians and the public. When there is conflict between individual interest and public interest, certainly individual interest must yield to public interest, whatever be the inconvenience or loss caused to individual. Therefore, I do not find any merit this writ petition. Writ petition is, accordingly, dismissed."
The said judgment and the observations made by the Hon'ble High Court in the said judgment copy of which is produced as Ext. P3 binds the successor in interest of the said hotel! Aryas which is the present hotel Vrindavanam he having acted in violation of the spirit behind the judgment rendered by the Hon'ble High Court against his predecessor in interest, he having cut and removed the rails installed in front of his hotel in the interest of public safety. The said position cannot be allowed to continue any further. The first respondent shall render all assistance to the complainant/ Thiruvananthapuram Road Development Company to reinstall and restore the handrails in front of the second respondent's hotel at Kuravankonam Jn. with immediate effect. Complainant shall be entitled to realise the cost thereof from the second respondent. The investigation in the crime which is already registered shal! proceed and on the basis of the evidence that will be collected, appropriate charge W.P.(C) No. 9027/2018 :5: sheet will have to be submitted before the appropriate Magistrate Court against the accused concerned.
Restore the railling and report on 02.02.2018.
Posted to 02.02.2018."
2. Brief material facts for the disposal of the writ petition are as follows:
The petitioner is the owner of a building bearing door No. TC 4/2573, which was let out to one Vasudevan, who was running a vegetarian hotel in the name and style of 'Ariyaas'. Earlier, the said Vasudevan approached this Court by filing W.P.(C) No. 16496 of 2015 against installation of handrails in front of the hotel. The said writ petition was dismissed by this Court as per Ext. P1 judgment dated 11.01.2016 holding that, 'the petitioner's hotel is located in a junction and is on the side of a curve of the road. There is no complete blocking of entry to petitioner's hotel. The traffic measures are taken for public safety. Therefore, larger public interest is involved for taking such measures. The wisdom of officials in regulating traffic cannot be subjected to a judicial scrutiny. The facts disclose that, measures have been taken to protect the interests of pedestrians and the public. When there is conflict between individual interest and public interest, certainly individual interest much yield to public interest, whatever be the inconvenience or loss caused to individual."
3. The case projected by the petitioner is that Vasudevan, the W.P.(C) No. 9027/2018 :6: tenant, vacated the building by October, 2017 and from January, 2018 onwards, petitioner is conducting a restaurant in the name and style of 'Hotel Vrindavanam'. According to the petitioner, as a counter blast, the Project Director of the Thiruvananthapuram Road Development Co. Ltd., the first respondent, has filed a complaint before the Peroorkada Police Station in January, 2018 alleging that on some day before 06.09.2016, without the permission of the authorities, the proprietor of Hotel Vrindavanam cut and removed the handrails on the footpath fixed by the Thiruvananthapuram Road Development Co. Ltd. and accordingly, the Peroorkada Police has registered Ext. P3 FIR.
4. Thereafter, the first respondent approached the Kerala Lok Ayukta seeking a direction to the second respondent, the Circle Inspector of Police, Peroorkada Police Station, to provide assistance to reinstall and restore the handrails stating that Ext. P1 judgment rendered by a learned single Judge of this Court binds the successor in interest i.e., the petitioner herein.
5. The paramount contention advanced by the petitioner is that the Upa Lok Ayukta has passed the impugned order without issuing a proper notice and without providing an opportunity to the petitioner; however holding that Ext. P1 judgment of the learned single Judge binds the successor in interest of Hotel Aariyaas and he having acted in violation of the spirit behind the judgment and he having cut and W.P.(C) No. 9027/2018 :7: removed the grills, directed to reinstall and restore the handrail, which according to the petitioner, is illegal as the judgment is not binding on the petitioner not being a party therein.
6. The further case of the petitioner is that having been aggrieved by Ext. P1 judgment, the petitioner has filed I.A. No. 225 of 2018 before the Division Bench seeking leave to prefer an appeal against the judgment of the learned single Judge and in the leave petition, the Division Bench has held that the findings rendered by the learned single Judge in Ext. P1 judgment would not be binding on the petitioner, since he was not a party to the proceedings in order to prosecute O.S.No. 159 of 2018 filed by the petitioner before the Munsiff's Court, Thiruvananthapuram.
7. According to the petitioner, the interim order granted by the Lok Ayukta to the first respondent is the final relief sought for in the complaint and therefore, the impugned Ext. P4 order of the Upa Lok Ayukta is illegal and arbitrary liable to be interfered with by this Court.
8. The Circle Inspector of Police, Peroorkada, the second respondent, has filed a counter affidavit basically explaining the circumstances under which Crime No. 60 of 2018 is registered against the petitioner under Section 3(2)(e) of the Prevention of Damage to Public Property Act, 1984 on 18.01.2018. Anyhow, in the writ petition, registration of crime and other consequential action on the part of the W.P.(C) No. 9027/2018 :8: second respondent is not a subject matter.
9. Therefore, we do not propose to make any reference to the same. The Road Fund Board, the additional 4 th respondent, which got itself impleaded as per order dated 30.10.2018 in I.A. No. 1 of 2018, has filed a detailed counter affidavit stating that the beautification of the roads in Trivandrum is funded by the Board and the consequences that have taken place due to the removal of the handrail. It is also pointed out that the Road Fund Board is a party to the suit proceedings filed by the petitioner before the civil court.
10. We have heard Sri. Blaze K. Jose for the writ petitioner, Sri. V. Tek Chand, learned Senior Government Pleader for the State and its officials and V. Krishna Menon for the Kerala Road Fund Board, and perused the pleadings and materials on record.
11. The sole question to be considered is whether any manner of interference is required to Ext. P4 order passed by the Upa Lok Ayukta. On a perusal of Ext. P4, it is evident that notice of complaint was served on the petitioner who is the second respondent in the complaint. However, he has not appeared either in person or through any Advocate. It was thereupon that the Upa Lok Ayukta has passed the order extracted above.
12. Basically, the Upa Lok Ayukta has passed the order on 29 th January, 2018 relying upon Ext. P1 judgment of the learned single W.P.(C) No. 9027/2018 :9: Judge which is dated 11.01.2016. In fact, Ext. P7 order was passed by the Division Bench in the leave application filed by the petitioner only on 20.02.2018 i.e., after the passing of Ext. P4 order by the Upa Lok Ayukta.
13. Therefore, the contention advanced by the writ petitioner that the Upa Lok Ayukta was wrong in relying upon Ext. P1 judgment of the learned single Judge and the same is illegal, arbitrary and cannot be sustained under law. But, fact remains, the interim relief granted by the Upa Lok Ayukta is the final relief sought for in the complaint.
14. Anyhow, subsequently, the petitioner has filed a suit before the competent civil court which is also pending consideration. It is a well settled proposition in law that a final order sought for in a proceeding cannot be granted as an interim relief.
15. An analysis of the impugned Ext. P4 order of the Upa Lok Ayukta makes it clear that the order is against the said well settled proposition in law. We are also informed that consequent to the interim order passed by this Court on 16.03.2018 staying operation of Ext. P4, the complaint is still pending before the Upa Lok Ayukta. Moreover, in the suit proceedings by and between the parties, Ext. P6 report is submitted by an Advocate Commissioner along with a sketch showing the existence of handrail. This Court, while granting stay, W.P.(C) No. 9027/2018 : 10 : relying upon the sketch in respect of the handrails, made it clear that the handrails indicated in Ext. P6, the sketch appended to the commission report, shall not be removed in the strength of that order.
16. Taking into consideration the above factual circumstances and the legal proposition, we set aside Ext. P4 order dated 29.01.2018 passed by the Upa Lok Ayukta in Complaint No. 69/2018C. But, we make it clear that the interim order passed by this Court that the handrails indicated in the sketch appended to Exhibit P6 commission report shall not be removed in the strength of that order, would continue to be in force until a final decision is taken by the Upa Lok Ayukta.
17. Taking into account the pendency of the complaint from the year 2018, we make it clear that the parties are at liberty to move the Upa Lok Ayukta for an early hearing of the complaint. It is further made clear that we have not considered the subject matter of the complaint on its merit.
Writ petition is allowed to the above extent.
sd/-
S. MANIKUMAR, CHIEF JUSTICE.
sd/-
SHAJI P. CHALY, JUDGE.
Rv W.P.(C) No. 9027/2018 : 11 : APPENDIX OF WP(C) 9027/2018 PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE JUDGMENT IN WPC NO.16496 OF 2015 DATED 11.1.2016.
EXHIBIT P2 A TRUE COPY OF THE LICENSE FEE RECEIPT DATED 31/1/2018 OF THE THIRUVANANTHAPURAM CORPORATION.
EXHIBIT P3 A TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.60/2018 OF THE PEROORKADA POLICE STATION.
EXHIBIT P4 A TRUE COPY OF THE ORDER OF THE HON'BLE KERALA LOK AYUKTA IN COMPLAINT NO.69/2018 C DATED 29.1.2018.
EXHIBIT P5 A TRUE COPY OF THE ORDER IN I.A.NO.844/2018 DATED 31.1.2018 IN O.S.NO.159 OF 2018 OF THE II ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM. EXHIBIT P6 A TRUE COPY OF THE COMMISSION REPORT IN O.S.NO.159 OF 2018 DATED 1.2.2018.
EXHIBIT P7 A TRUE COPY OF THE ORDER IN I.A.NO.225/2018 IN UNNUMBERED WRIT APPEAL OF 2018 DATED 20.1.2018 RESPONDENTS' EXHIBITS: NIL /True Copy/ PS To Judge.
rv