Kerala High Court
Punjab National Bank vs Arjun Pandian on 13 August, 2021
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
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
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
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
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
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
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
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
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
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
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
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/-
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.
ANNEXURE 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.
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.
