Abdul Kalam K vs Sreeram Sambasiva Rao
2021 Latest Caselaw 467 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

             THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

    THURSDAY, THE 07TH DAY OF JANUARY 2021 / 17TH POUSHA, 1942

      Con.Case(C).No.1813 OF 2020 IN WP(C). 4365/2020
AGAINST THE JUDGMENT IN WP(C) 4365/2020(U) OF HIGH COURT OF KERALA


PETITIONER/PETITIONER IN WP(C)4365 OF 2020:

         1    ABDUL KALAM K.,
              AGED 56 YEARS
              S/O. HASSAN, PUTHUKKUDI HOUSE, KARANTHOOR P.O.,
              KOZHIKODE-673 571.

              BY ADVS.
              SRI.K.MOHAMMED FAISAL NAHA
              SRI.P.A.PETER
              SMT.TINTU GEORGE

RESPONDENT 1/1ST RESPONDENT IN WP(C) 4365 OF 2020:

         1    SREERAM SAMBASIVA RAO, IAS
              DISTRICT COLLECTOR, DISTRICT COLLECTORATE OFFICE,
              ERANHIPPALAM, KOZHIKODE, KERALA, 673 020.




              SRI.K.J.MOHAMMED ANZAR, SPL.GOVT.PLEADER(REVENUE)

     THIS CONTEMPT OF COURT CASE (CIVIL) HAVING BEEN FINALLY HEARD
ON 07.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Cont.Case (Civil) No.1813 of 2020
         in
W.P(C)No.4365 of 2020
                                          2


                          ALEXANDER THOMAS, J.
                     ===========================
                     Cont.Case (Civil) No.1813 of 2020
                                     in
                         W.P(C)No.4365 of 2020
                     ===========================
                         Dated this the 07th 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-A

judgment dated 19.02.2020 in W.P(C) No.4365/2020.

2. Heard Sri.K.Mohammed Faisal Naha, learned counsel

appearing for the petitioner in the COC/writ petitioner and

Sri.K.J.Mohammed Anzar, learned Special Government Pleader

(Revenue) appearing for the respondents in the COC/R1 & R2 in the

W.P(C).

3. Various orders have been passed by this Court in this case,

as can be seen from the orders dated 17.11.2020, 01.12.2020,

04.12.2020 & 17.12.2020. The order dated 01.12.2020 reads as

follows:

"Sri.Saigi Jacob Palatty, learned Senior Government Pleader would submit on the basis of instructions that now the Cont.Case (Civil) No.1813 of 2020 in W.P(C)No.4365 of 2020

respondent-District Collector, Kozhikode had afforded reasonable opportunity of being heard to the petitioner on 27.11.2020 and that the orders in the matter will be passed shortly and the delay is only on account of the various responsibilities to be discharged by the respondent officer as District Collector, in view of the ongoing local body election process.

2. Sri.K.Mohammed Faisal Naha, learned counsel appearing for the petitioner would point out that even now the respondent-Revenue Divisional Officer, Kozhikode nor the respondent-District Collector, Kozhikode has given copy of the inspection report to the petitioner and further that the hearing conducted on 27.11.2020 was only as a ritual. Since copy of the inspection report has not been served on him, he has been disabled to make submissions of the matter since the inspection report is one of the important aspects in the matter. The Revenue Divisional Officer, Kozhikode will immediately explain to this Court, as to why he has not given copy of the inspection report to the petitioner inspite of the directions in that regard made by this Court as early as on 19.02.2020 in Annexure-A judgment and also inspite of the further specific directions made by this Court on 17.11.2020 in this contempt case. The Revenue Divisional Officer will show cause, as to why this Court shall not impose exemplary cost on him to be paid by him personally. The Revenue Divisional Officer, Kozhikode will give explanation by filing an affidavit in this petition. The respondent-District Collector, Kozhikode will also immediately explain, as to why the copy of the inspection report was not given to the petitioner before the hearing process. If as a matter of fact, the hearing has been done without giving copy of the inspection report to the petitioner, then the hearing process cannot be said to be a reasonable and fair procedure and it can only be seen as an empty formality.

List on 04/12/2020."

4. The order dated 04.12.2020 reads as follows:

"The specific directions issued by this Court in para No.4 (i) of Anx.A judgment dated 19-02-2020 in W.P(C) No.4365/2020 was that the 2nd respondent RDO should take up the matters in Ext.P2 and after prior notice to the petitioner, R5 & R6 in the W.P(C) should conduct appropriate enquiry in the matter and then Cont.Case (Civil) No.1813 of 2020 in W.P(C)No.4365 of 2020

furnish the report on such enquiry/inspection before the 1 st respondent District Collector stating the correctness or otherwise of the allegations raised in the said petition and also his views in the matter, so that the matter could be considered appropriately by the 1st respondent District Collector.

2. It appears that the 2nd respondent has not complied with the said direction till date and on other hand, on the excuse that because of Covid-19 pandemic issues, he authorised Village Officer to conduct an inspection and even copy of the said inspection report said to have been conducted by the Village Officer was never given to the petitioner before the hearing and without serving such report of the so called inspection, the District Collector conducted the hearing on 27-11-2020, etc.

3. When the matter was taken up for consideration on 01-12-2020, this Court was not appraised that as a matter of fact, the RDO had never conducted the inspection/enquiry with notice to both sides and that he had not given his report to the Collector expressing his views in the matter, etc, and this Court proceeded the premise as if the hearing by the Collector was conducted on the basis of the enquiry/inspection report of the RDO, but without serving enquiry/inspection report of the RDO to the petitioner, etc. Therefore, this Court as per order dated 01-12-2020 had directed the RDO to file an explanation as to why he has not given copy of inspection report to the petitioner, etc.

4. Now, very surprisingly, the RDO has filed an affidavit with the bench mark today (04-12-2020) stating that because of Covid-19 pandemic issues, he has delegated the task of so called inspection to a subordinate level officer, who is two ranks below him, viz, Village Officer concerned, who is said to have conducted an inspection and who is said to have given the report to the Collector. It appears that it is this so called inspection report submitted by the Village Officer that has now been served to the petitioner and that too, after the hearing has already been completed by the District Collector. Hence it appears that the RDO has blatantly flouted the directions and orders passed by this Court and has thrown into the whims by substituting and modifying the directions in Para No.4(i) of Anx.A judgment by holding that he has power to overrule the Cont.Case (Civil) No.1813 of 2020 in W.P(C)No.4365 of 2020

judicial verdicts of this Court and to authorise an officer two ranks below him to conduct so called inspection, who is not even competent to express his well-considered views in the matter. The direction was that the RDO should conduct the enquiry/inspection with due prior notice to both sides and he should give a well-considered report to the Collector, expressing the views of RDO in that regard, so that the District Collector could in turn take the final decision in an appropriate and proper manner after hearing both sides.

5. Therefore, the stand of the RDO in delegating the so called process of conducting the inspection to the Village Officer is nothing but contumacious act on his part and it appears that he proceeds on the premise as if he has power to overrule the judgment of this Court by sitting an appeal over that. If as a matter of fact, the RDO had any serious issues in conducting the enquiry with due prior notice to both sides and then submitting the report in the matter within the time limit stipulated by this Court or at least after the Contempt of Court Case has been filed before this Court on 12-11-2020, the only thing he had to do was to give the details of reasons as to why he could not comply with the said directions and conducting the enquiry and furnishing the report to the Collector and if he had any problems in leaving the station and coming out to Ernakulam to ensure the filing of time extension application through the office of the Advocate General, he could have easily telephonically contacted the Government Pleader concerned and after the discussion with the law officer could have given his written versions in the matter, explaining the reasons of the delay and the plea for time extension through at least an E-mail attachment and the Government Pleader could have easily filed a verified petition seeking for extension of time limit stipulated in Anx.A judgment. Instead of taking to this simple procedure, which only involves having a mere telephonic discussion with the Government Pleader and then giving his written versions for explaining and justifying the plea for time extension, through E-mail or such other mode of electronic communication to the Government Pleader, he has proceeded to hold that he has the power to overrule the judgment and delegate an officer two ranks below him viz, Village Officer to undertake this process. Covid-19 pandemic issues cannot be the basis for the RDO to put up excuses, when he could have easily adopted the abovesaid Cont.Case (Civil) No.1813 of 2020 in W.P(C)No.4365 of 2020

procedure for seeking time extension and then, complying the directions as per Para No.4(i) of the judgment.

6. What this Court has directed is that the decision making process should be effective and fair. It is for this reason that this Court directed the RDO himself should conduct the enquiry with due prior notice to both sides and then give the report to the District Collector expressing well-considered views of the RDO in the matter, so that the District Collector is fully equipped with a proper material to aid his decision making process so that a legally proper and fair decision is taken by the District Collector. Through the aforesaid unilateral stand of the RDO, he has thrown the directions of this Court to the winds. This cannot be seen lightly. The RDO shall be personally present before this Court on 17-12-2020 to explain as to why the action should not be initiated against him for grave disobedience of the directions issued by this Court in Anx.A judgment.

7. The RDO should also show cause by filing an affidavit as to why this Court shall not impose personally cost to be paid by him and if it is so ordered that not even a single paise can be appropriated from the public exchequer and it has to be personally borne by the officer concerned. The respondent District Collector, Kozhikode will also file an affidavit explaining as to why he has condoned the act of RDO in not conducting the enquiry and giving well-considered report in the matter in spite of the specific directions issued by this Court in Para No.4(i) of the judgment and as to why the District Collector has not ascertained that even the copy of the inspection report said to have been done by the Village Officer was not given to the petitioner and as to why the hearing was conducted on 27-11-2020 without complying with the elementary fair procedure of giving copy of the so called inspection report said to have been submitted by the Village Officer. So also the District Collector should state in the affidavit as to whether the Village Officer has conducted the said inspection with due prior notice to the petitioner, R5 & R6 and as to when copy of the said report said to have been given by the Village officer has been given to the petitioner as well as R5 & R6 in the W.P(C). Affidavit of the District Collector shall be filed by him within one week.

Cont.Case (Civil) No.1813 of 2020 in W.P(C)No.4365 of 2020

List the case at 10.15 a.m on 17-12-2020 in Court No.6A."

5. Further, on the previous occasion, this Court has passed

order on 17.12.2020, which reads as follows:

"The learned Senior Government Pleader submits that, due to personal inconvenience the respondent RDO concerned could not personally appear before this Court today and that the case may be adjourned by a day or two, on which day she would be personally present before this Court, and if possible detailed affidavit will also be filed on her behalf explaining the various matters as required in this Court's order dated 4.12.2020 passed in this case.

2. The plea for adjournment is fairly not opposed by Sri.K.Mohammed Faisal Naha, learned counsel appearing for the petitioner. Further it appears that, the respondent District Collector, Kozhikode, has also not cared to comply with the directions issued by this Court as per order dated 4.12.2020 wherein he was obliged to file an affidavit in the matter.

3. Sri.Saigi Jacob Palatty, learned Senior Government Pleader would submit that, the respondent District Collector may not have been able to file the affidavit on account of the overload of work in connection with the local body elections and that if possible, the respondent District Collector will also file the affidavit as required in this Court's order dated 4.12.2020 before the next posting date, and if for any reason, due to paucity of time the affidavit could not be prepared to be sworn to by the respondent District Collector, this Court may take a lenient stand in that regard in view of the present over load of work.

4. The abovesaid submissions made on behalf of the respondent RDO and the respondent District Collector are recorded.

List the case at 10.15 am on 7.1.2021 in Court No.VI A."

Cont.Case (Civil) No.1813 of 2020 in W.P(C)No.4365 of 2020

6. Today when the matter has been taken up for

consideration, Sri.K.J.Mohammed Anzar, learned Special Government

Pleader (Revenue) would submit on the basis of instructions that the

2nd respondent-Revenue Divisional Officer has though belatedly now

conducted inspection/enquiry with due notice to the petitioner and the

other side on 18.12.2020 and the 2 nd respondent-RDO has submitted

report dated 21.12.2020 to the 1st respondent-District Collector on

22.12.2020. That, further action in the matter is to be taken by the

1st respondent-District Collector, who was directed to consider the

matter, after getting the inputs by way of reports from the

2nd respondent-RDO as well as the Panchayath Secretary concerned

and Environmental Engineer of the State Pollution Control Board, etc.

7. On being queried, as to whether the Panchayath Secretary

and the Environmental Engineer have also submitted their reports in

the matter, this Court is now apprised that the said officials have also

submitted their reports to the 1 st respondent-District Collector.

Further, Sri.K.Mohammed Faisal Naha, learned counsel appearing for

the petitioner would seriously submit on the basis of instructions that

some of the cardinal aspects pointed out by the petitioner at the stage Cont.Case (Civil) No.1813 of 2020 in W.P(C)No.4365 of 2020

of the site inspection has not even being taken into consideration by

the 2nd respondent-RDO and that the crucial aspects in the matter is

that the activity in question could be lawfully by contesting respondent

Nos.5 & 6 in the W.P(C), only in the property specified in document

No.1684/1935 of registered partition deed No.1684/1935 in Schedules

20 & 21 thereto. But that, as a matter of fact, the other side is now

actually conducting the activity in question outside the said permitted

area and very near to the petitioner's property, which is very near to

the petitioner's property, which is clearly illegal and unlawful and

further that since the activity in question involves also offering of

alcohol to the deity and the participants conducting such activity

outside the lawfully permitted area is clearly illegal and ultra vires and

that the 1st respondent-District Collector and the 2 nd respondent-RDO

has the legal obligation to ensure that the rights and interests of the

petitioner herein are not so flagrantly violated by granting such

permission. If, as a matter of fact, the abovesaid factual submissions

made by the learned counsel for the petitioner are factually correct, etc.

and the same has not been adverted to by the 2 nd respondent-RDO, all

this Court would now observe is that it shall be the bounden Cont.Case (Civil) No.1813 of 2020 in W.P(C)No.4365 of 2020

obligation of the 1st respondent-District Collector to be fully appraised

about the factual intricacies in that regard. Needless to say, those are

all matters which would come within the province of consideration of

the 1st respondent-District Collector. Since now all the appropriate

officers concerned have submitted their reports in the matter, the

1st respondent-District Collector may without any further delay issue

notice of hearing to the petitioner as well as contesting respondent

Nos.5 & 6 in the W.P(C) and should also ensure that copies of all the

abovesaid reports of the RDO, Panchayath Secretary and the

Environmental Engineer are duly served to both sides in advance and

after adverting to the submissions of both sides and after adverting to

the contents of the said reports and also after ascertaining the

correctness or otherwise of the abovesaid submissions now made on

behalf of the petitioner, as notified hereinabove and after taking into

consideration all relevant aspects of the matter, may take decision in

the matter, as ordered in Annexure-A judgment, without any further

delay.

8. Sri.K.Mohammed Faisal Naha, learned counsel appearing

for the petitioner submits that the petitioner has been advised to give Cont.Case (Civil) No.1813 of 2020 in W.P(C)No.4365 of 2020

written objections to the abovesaid reports and that the same may also be

directed to be considered. Needless to say, if any of the parties including the

petitioner wants to submit their written objections to any or all of the

abovesaid reports in question, they may do so, without any further delay and

it goes without saying that those objections should also duly taken note of by

the 1st respondent-District Collector before arriving at a considered decision

in the matter, as aforedirected. If there is any further unreasonable delay on

the part of the 1st respondent-District Collector to comply with the abovesaid

directions, then the petitioner will be at liberty to work out his remedies in

that regard.

9. The Registry will return back certified copy of Annexure-A

judgment to the petitioner's counsel, if a request in that regard is made.

However, the Registry will ensure that a photocopy of the said document is

placed in the original case file for the purpose of maintenance of records.

With these observations and directions, the above Cont.Case (Civil)

will stand disposed of.

Sd/-

ALEXANDER THOMAS JUDGE vgd Cont.Case (Civil) No.1813 of 2020 in W.P(C)No.4365 of 2020

APPENDIX PETITIONER'S/S EXHIBITS:

ANNEXURE A CERTIFIED COPY OF JUDGEMENT DATED 19.2.2020 IN WPC 4365/2020.