Kerala High Court
Beena Sarasan Irs (Retd.) vs Bindu P.V on 6 November, 2024
Con.Case (C) No.2630 of 2024
in
W.P(C) No.2716 of 2023
2024:KER:82484
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
WEDNESDAY, THE 6TH DAY OF NOVEMBER 2024 / 15TH KARTHIKA, 1946
CON.CASE(C) NO. 2630 OF 2024
AGAINST THE JUDGMENT DATED 01.02.2023 IN WP(C) NO.2716 OF
2023 OF HIGH COURT OF KERALA
PETITIONER/PETITIONER:
BEENA SARASAN IRS (RETD.),AGED 72 YEARS
D/O BALAGANGADHARAN, RESIDING AT CI TENNIS CLUB
ENCLAVE, KOWDIAR PO, THIRUVANANTHAPURAM, PIN - 695003
BY BEENA SARASAN IRS (RETD.)(Party-In-Person)
RESPONDENTS/(CONTEMNORS)/3RD RESPONDENT IN WP(C) AND PRESIDENT &
SECRETARY OF THE 4TH RESPONDENT IN WP(C):
1 BINDU P.V.
SECRETARY, KOTTUKAL GRAMA PANCHAYATH, KOTTUKAL,
THIRUVANANTHAPURAM, PIN - 695501
2 S. RAJENDRAN, S/O SIVASANKARAN, PRESIDENT,
AAZHIMALA SHIVA TEMPLE DEVASWOM TRUST,
AAZHIMALA TEMPLE ROAD, PULIMKUDI, MULLOOR PO,
THIRUVANANTHARURAM, PIN - 695521
3 N. VIJAYAN (SHAMSU), S/O NARAYANANDAN, SECRETARY,
AAZHIMALA SHIVA TEMPLE DEVASWOM TRUST,
AAZHIMALA TEMPLE ROAD, PULIMKUDI, MULLOOR PO,
THIRUVANANTHARURAM, PIN - 695521
OTHER PRESENT:
SC -M R SASITH
THIS CONTEMPT OF COURT CASE (CIVIL) HAVING COME UP FOR
ADMISSION ON 06.11.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Con.Case (C) No.2630 of 2024
in
W.P(C) No.2716 of 2023
2024:KER:82484
VIJU ABRAHAM, J.
.................................................................
Con.Case (C) No.2630 of 2024
in
W.P(C) No.2716 of 2023
.................................................................
Dated this the 6th day of November, 2024
JUDGMENT
The above contempt of court case is filed alleging non-
compliance of the direction in Annexure-A1 judgment in W.P.(C) No.2716
of 2023. The operative portion of Annexure-A1 judgment reads as follows:
"4. It is a fact that based on the complaint preferred by the petitioner as
well as on the complaint received from the Kerala State Coastal Zone
Management Authority, the 3rd respondent has issued a memo to stop
the construction activities undertaken by the 4th respondent and also to
demolish the unauthorised construction undertaken by them, within a
period of 15 days. Therefore, there will be a direction to the 3 rd
respondent to finalise the proceedings initiated as per the provisional
order dated 24.01.2023, in accordance with law, after hearing the
petitioner as well as the 4th respondent. The 4th respondent shall not
undertake any construction activities without obtaining proper
consent/permission from the authorities concerned. It is further directed
that the 3rd respondent shall see that the stop memo issued, is strictly
complied with, if require with the assistance of Police."
2. When the matter came up for consideration the learned
standing counsel appearing for the respondent Panchayat submits that
they have taken action in the matter by issuing notices as is evident from
the documents produced along with the counter affidavit, but the party
respondents have challenged the said notices in Appeal Nos.108 of 2023
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and 224 of 2023 before the Tribunal for Local Self Government
Institutions, Thiruvananthapuram and the Tribunal has stayed all further
proceedings pursuant to the said notices. Thereupon I have called for a
report from the Tribunal for Local Self Government Institutions,
Thiruvananthapuram wherein it is reported that Appeal Nos.108 of 2023
and 224 of 2023 were disposed of by a common order dated 07.09.2024
and the copy of the said order was served on the appellant on 30.10.2024
and on the counsel for the Panchayat as well as the petitioner herein only
on 01.11.2024. The learned standing counsel for the Panchayat brought
to my notice the common order passed by the Tribunal for Local Self
Government Institutions, Thiruvananthapuram in Appeal Nos.108 of 2023
and 224 of 2023, which reveals that both the appeals were allowed with
the following directions:
"In the result, both appeals are allowed.
1. The impugned order No.J.C.4/619/2023 dated 25/02/2023
and order No.A3/619/2023 dated 08/02/2023 (wrongly typed as
08/03/2023) stand set aside.
2. The respondent/Secretary is directed to take steps to get
the appellants properties measured through Taluk Surveyor as per the
revenue records, to ascertain whether there was any encroachment to
the Government land in the construction of any buildings or structures
by the appellants. In case there is any encroachment to the
Government land, copy of the survey plan so prepared shall be served
to the appellants and 3rd respondent. Steps shall be taken under Rule 5
of the Kerala Panchayat (Removal of Encroachment and Imposition and
Recovery of Penalty for Unauthorised Occupation) Rules, 1996 for
eviction of encroachment in Government land. In such event the
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procedure under Section Rule 5(1) and (2) of 1996 Rules shall be
complied after giving opportunity of hearing to the appellant and to the
3rd respondent.
3. In respect of the construction of compound wall or other
structures without permit in side property of the appellant, steps shall be
taken under Section 235 W of the Kerala Panchayat Raj Act.
Opportunity of hearing shall be given to the appellants and the 3 rd
respondent. In the case of any fresh/additional constructions were
made during the pendency of the appeals and after the issuance of the
orders dated 24/01/2023, 08/02/2023 and 25/02/2023, the
respondent/Secretary shall issue provisional order and show cause
under Section 235 W(1) and (2) of Panchayat Raj Act specifically
describing the nature, measurement and description of the
constructions to be demolished. After hearing both sides, speaking
order shall be passed under Section 235 W(3) of Kerala Panchayat Raj
Act describing the length, width, measurements and descriptions of the
unauthorised constructions within the property of appellants to be
demolished.
4. The proceedings shall be completed within a period of 2
months from the date of this order.
5. Considering the facts and circumstances of the case, no
order as to cost."
A perusal of the order would reveal that the Tribunal has directed to take
action after following the various procedures as contemplated under the
Kerala Panchayat Raj Act, 1994. Learned counsel for the respondent
Panchayat submits that appropriate action will be taken as directed in the
common order in Appeal Nos.108 of 2023 and 224 of 2023. Taking into
consideration the above facts and circumstances and that the notices
issued by the respondent Panchayat were interfered by the Tribunal for
Local Self Government Institutions, Thiruvananthapuram, I am of the view
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that there is no wilful disobedience on the part of the respondents in
complying with the directions in Annexure-A1 judgment.
Leaving open the right of the petitioner to challenge the
common order of the Tribunal for Local Self Government Institutions,
Thiruvananthapuram in Appeal Nos.108 of 2023 and 224 of 2023, if
aggrieved by the same, the above contempt of court case is closed.
Sd/-
VIJU ABRAHAM
JUDGE
cks
in
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APPENDIX OF CON.CASE(C) 2630/2024
PETITIONER ANNEXURES
Annexure A1 A CERTIFIED COPY OF THE JUDGMENT DATED
01.02.2023 IN WP(C) NO. 2716 OF 2023
Annexure A2 A TRUE COPY OF THE SAID LETTER DATED
04.02.2023
Annexure A2(1) A TRUE COPY OF EMAIL DATED 09-02- 2023 SENT
TO THE 1ST RESPONDENT
Annexure A3 A TRUE COPY OF THE ABOVE SAID E-MAIL DATED
23-02-2023
Annexure A4 A TRUE COPY OF THE LETTER DATED 08.09.2024
SENT BY E-MAIL
Annexure A5 A TRUE COPY OF THE PHOTOGRAPHS OF
CONSTRUCTION AS COULD BE SEEN BY THE
PETITIONER, WHICH ARE BEING UNDERTAKEN BY
THE 2ND AND 3RD RESPONDENT
Annexure A6 TRUE COPY OF NOTICE AND ORDER
NO.A3/619/2023 DATED 08.02.2023
(ERRONEOUSLY DATED AS 08.03.2023 AND
SUBSEQUENTLY CORRECTED) CONFIRMING THE
PROVISIONAL ORDER PASSED UNDER SECTION 235
W(1) OF THE KERALA PANCHAYAT RAJ ACT, 1994
Annexure A7 TRUE COPY OF A LETTER ON BEHALF OF THE
AAZHIMALA TEMPLE MANAGEMENT DATED
15.02.2023 SUBMITTED TO THE 1ST RESPONDENT
HEREIN FOR REGULARISATION OF CONSTRUCTION
REFERRED IN NOTICE DATED 08.02.2023.
Annexure A8 TRUE COPY OF E-MAIL RECEIVED BY ME ON
21.02.2023 FROM THE LST RESPONDENT,
ATTACHING NOTICE NO.A2/7778/2023 DATED
20.0.2023 TO APPEAR FOR A HEARING ON
23.02.2024 SCHEDULED TO CONSIDER DECISION
NO.5(1) OF THE KOTTUKAL GRAMA PANCHAYAT
COMMITTEE DATED 16.02.2023
Annexure A8(a) TRUE COPY OF KOTTUKAL GRAMA PANCHAYAT
COMMITTEE DECISION NO.5(1) DATED 16.02.2023
WHICH STATES THAT THE COMMITTEE DECIDED TO
HEAR BOTH PARTIES TO FIND A SOLUTION" TO MY
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COMPLAINT AGAINST THE UNAUTHORISED
CONSTRUCTION ON THE SEASHORE BY AAZHIMALA
TEMPLE AUTHORITIES
Annexure A9 TRUE COPY OF ORDER NO.J.C.4/619/2023 DATED
25.02.2023 WHICH REITERATED THE FINAL ORDER
DATED 08.02.2023
Annexure A10 TRUE COPY OF WRITTEN STATEMENT DATED
03.08.2023 OF THE LST RESPONDENT HEREIN IN
APPEAL NO.224/2023 FILED BEFORE THE
TRIBUNAL FOR LOCAL SELF GOVERNMENT
INSTITUTIONS AGAINST ORDER DATED 08,02,2023
Annexure A11 TRUE COPY OF MY LETTER DATED 08.09.2024 E-
MAILED AS PER ANNEXURE-A4 AND TRUE COPY OF
LETTER DATED 10.02.2023 FROM THE LST
RESPONDENT TO SHO, VIZHINJAM POLICE STATION
WHICH HAD BEEN ENCLOSED WITH MY SAID LETTER
ALONG WITH A COPY OF THE JUDGMENT IN W.P.
Annexure A12 TRUE COPY OF REPLY DATED 07.10.2024 FROM
SHO, VIZHINJAM POLICE STATION RECEIVED BY
E-MAIL RELATING TO MY LETTER DATED
08.09.2024
Annexure A13 TRUE COPY OF LETTER DATED 18.10.2024 FROM
SPIO OF KCZMA ENCLOSING UNDER RTI ACT
Annexure A13(a) TRUE COPY OF LETTER NO.145/A2/2023/KCZMA
DATED 21.02.2023 FROM THE DIRECTOR, DEPT.
OF ENVIRONMENT AND CLIMATE CHANGE
Annexure A13(b) TRUE COPY OF LETTER FROM THE LST RESPONDENT
NO.400263/LLAP02/GPO/2023/619/(3) DATED
05,07.2023 TO THE JOINT SECRETARY, KCZMA
Annexure A13(c) TRUE COPY OF LETTER NO.145/A1/2023/KCZMA
DATED 09.08,2024 FROM THE MEMBER SECRETARY,
KCZMA TO THE 1ST RESPONDENT
RESPONDENT EXHIBITS
Exhibit-R1(a) True copy of the notice dated 04.02.2023
issued to the 3rd respondent.
Exhibit-R1(b) True copy of the notice dated 04.02.2023
issued to the Station House Officer,
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Vizhinjam Police Station.
Exhibit-R1(c) True copy of the order dated 08.02.2023.
Exhibit-R1(d) True copy of the representation dated
15.02.2023.
Exhibit-R1(e) True of the letter issued by the 1st
respondent dated 20.02.2023
Exhibit-R1(f) True copy of the order dated 15.02.2023 in
M.A No. 01/2023.
Exhibit-R1(g) True copy of the order dated 25.02.2023.
Exhibit-R1(h) True copy of the order in I.A No. 309/2023
in Appeal No. 108/2023 dated 28.02.2023.
Exhibit-R1(i) The true copy of the report dated
05.07.2023 submitted by the Secretary of
the Panchayath.
Exhibit-R1(j) True copy of the Order of KCZMA dated
09.08.2024
Exhibit-R1(k) True copy of the notice dated 07.09.2024
Exhibit-R1(l) True copy of the notice dated 27.09.2024
Exhibit-R1(m) True copy of the reply letter dated
30.09.2024
Exhibit R1(n) THE TRUE COPY OF THE OF THE COMMON ORDER IN
APPEALS ORDER DATED 07.08.2024
