Kerala High Court
B.Indira Devi vs Mrs.Bini.K.U on 4 January, 2021
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:
Cont.Case (Civil) No.1909 of 2020
in
W.P(C) No.15371 of 2020
2
ALEXANDER THOMAS, J.
===========================
Cont.Case (Civil) No.1909 of 2020
in
W.P(C) No.15371 of 2020
===========================
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.
Cont.Case (Civil) No.1909 of 2020
in
W.P(C) No.15371 of 2020
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.
Cont.Case (Civil) No.1909 of 2020
in
W.P(C) No.15371 of 2020
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
Cont.Case (Civil) No.1909 of 2020
in
W.P(C) No.15371 of 2020
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.
Cont.Case (Civil) No.1909 of 2020
in
W.P(C) No.15371 of 2020
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
Cont.Case (Civil) No.1909 of 2020
in
W.P(C) No.15371 of 2020
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
Cont.Case (Civil) No.1909 of 2020
in
W.P(C) No.15371 of 2020
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
Cont.Case (Civil) No.1909 of 2020
in
W.P(C) No.15371 of 2020
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
