Kerala High Court
Asok Kumar S vs Anilkumar Pandala on 7 July, 2022
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.
---------------------------------------------------------
W.P.(C) No. 9027 of 2018
---------------------------------------------------------
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
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
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
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
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
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
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,
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
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
