C.P. Jacob v. The Secretary to Government, Government of Kerala, Department of Local Self Government, Government Secretariat, Thiruvananthapuram; The Secretary, Kizha kk ambalam Grama Panchayath; Kizha kk ambalam Grama Panchayat; Senior Town Planner and Convener of the District Level Committee to Regularize the Unauthorized Construction; Sarasam P.T.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 26TH DAY OF FEBRUARY 2020 / 7TH PHALGUNA, 1941** ## **WP(C).No.3857 OF 2020(F)** ## **PETITIONER:** **C.P. JACOB, AGED 52 YEARS S/O. PAILY, CHACKKACHAN HOUSE, PAZHANGANAD, KIZHAKKAMBALAM P.O. ERNAKULAM DISTRICT 683 562.** **BY ADVS. SRI.M.M.MONAYE SRI.M.PAUL VARGHESE SRI.DESI MATTHAI** ## **RESPONDENTS:** - **1 THE SECRETARY TO GOVERNMENT, GOVERNMENT OF KERALA, DEPARTMENT OF LOCAL SELF GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.** - **2 THE SECRETARY, KIZHAKKAMBALAM GRAMA PANCHAYATH, KIZHAKKAMBALAM P.O. ERNAKULAM DISTRICT 683 562.** - **3 KIZHAKKAMBALAM GRAMA PANCHAYAT, KIZHAKKAMBALAM P.O. ERNAKULAM DISTRICT 683 562. REPRESENTED BY ITS SECRETARY.** - **4 SENIOR TOWN PLANNER AND CONVENER OF THE DISTRICT LEVEL COMMITTEE TO REGULARIZE THE UANUTHORIZED CONSTRUCTION, ERNAKULAM DISTRICT CIVIL STATION, KAKKANAD 682 030.** W.P(C). No. 3857 of 2020 2 **5 SARASAN. P.T., S/O. THANKAPPAN, PALLATH HOUSE, EDATHALA NORTH P.O. EDATHALA, ERNAKULAM DISTRICT 683 561.** **BY SRI.THOMAS GEORGE, SC, KIZHAKKAMBALAM GRAMA PANCHAYAT R2-3 BY ADV. DR.GEORGE ABRAHAM-R5 BY ADV. SRI.RENNY AUGUSTINE SRI.K.J.MANU RAJ, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C). No. 3857 of 2020 3 ## ALEXANDER THOMAS, J. -----------------------------------W.P(C). No. 3857 of 2020 -----------------------------------Dated this the 26[th] day of February, 2020 ## **JUDGMENT** The prayers in the above Writ petition (Civil) are as follows: - _i. Issue a writ in the nature of certiorari or any other writ, order or direction calling for the records leading to the issuance of Ext.P12 order and quash the same._ - _ii. Declare that the 5[th] respondent is not entitled for regularisation of the unauthorised construction which is sought to be regularised in the Ext.P5 petition before the 1[st] respondent._ - _iii. Issue such other relief as this Honourable Court may deem fit and proper in the circumstances of this case._ - _iv. Award the cost of this proceedings._ 2. Heard Sri.M.M.Monaye, learned counsel appearing for the petitioner, Sri.K.J.Manu Raj, learned Government Pleader appearing for 1[st] respondent and 4[th] respondent, Sri.Thomas George, learned Standing Counsel appearing for 2[nd] respondent and 3[rd] respondent (Kizhakkambalam Grama Panchayath) and Dr.George Abraham, learned Advocate appearing for the 5[th] respondent. 3. While considering this case at the admission stage, this Court has passed order dated 12-02-2020 in this case, which reads as follows. W.P(C). No. 3857 of 2020 4 _“Notice before admission for R1 and R2 has been taken by the learned Government Pleader and for R3 and R4 has been taken by Sri. Thomas George, learned Advocate. Issue notice before admission to R5 by special messenger returnable within 3 days._ _2. It is pointed out by Sri. M.M. Monaye, learned counsel appearing for the petitioner that the 1[st] respondent Government has issued impugned Ext.P12 order dated 22/01/2020 in flagrant violation of the directions issued by this Court in Ext.P8 judgment in as much as, despite the said judgment, the petitioner has not been afforded reasonable opportunity of being heard before the impugned decision as per Ext.P12 was taken. Learned Government Pleader will get specific instructions on the said plea of the petitioner that, petitioner was not afforded reasonable opportunity of being heard in spite of specific directions in that regard, issued by this Court as per Ext.P8 judgment which has been communicated by the petitioner to the 1[st] respondent Government as per Ext.P9 and P11 etc._ _3. In the meanwhile it is ordered that the operation and enforcement of the impugned Ext.P12 order dated 22/01/2020 issued by the 1[st] respondent Government in the Local Self Government Department will remain stayed. This order will be in force for a period of one month._ _4. In that regard, the competent officer of the 1[st] respondent State Government should clearly appraise this Court as to when copy of Ext.P8 judgment 24/12/2012 in WP© 35814/2019 was received by them and also as to whether Ext.P9 covering letter sent by the petitioner enclosing a copy of Ext.P8 judgment on 30/12/2019 has been duly received by the 1[st] respondent Government as shown in Ext.P10 and P11. If that be so, the competent official of the respondent State Government should also show cause to this Court as to why this Court shall not impose exemplary costs on the officials concerned of the Government for having blatantly and patently violated the directions issued by this Court, in Ext.P8 judgment in the matter of granting opportunity of hearing to the petitioner. If any such cost is imposed by this Court, then it will be made clear that the cost amount could be recovered by the 1[st] respondent Government from the culpable officials who are actually responsible for the said violation._ _List on 19/02/2020.”_ ## 4. Today when the matter was taken up for consideration, the learned Government Pleader has submitted that the impugned W.P(C). No. 3857 of 2020 5 Ext.P12 order dated 22-01-2020 has been recalled by the 1[st] respondent and notices have been issued to the petitioner as well as the parties concerned to attend a personal hearing in the matter before the 1[st] respondent, which is to be conducted today (26-02-2020) and that the competent authority of the 1[st] respondent (Local Self Government Department), after hearing on parties concerned will take considered decision in this matter without much delay. 5. Sri.M.M.Monaye, learned counsel for the petitioner would point out that even till date he has not been served with copy of the order or the proceedings, issued by the 1[st] respondent recalling the impugned Ext.P12 order and it is learned that the 1[st] respondent has not invited the respondent, Kizhakkambalam Grama Panchayath for the hearing, which is scheduled to be conducted today. Further that though the act of recalling the impugned Ext.P12 order cannot be found fault. Further the act of the 1[st] respondent in conducting the hearing today itself, when the matter appears to be before this Court in W.P(C) No.3857/2020, cannot said to be a fair decision making process on the part of the 1[st] respondent. 6. The learned Government Pleader would submit that since W.P(C). No. 3857 of 2020 6 the petitioner herein had filed Contempt of Court Case arising out of Ext.P8 judgment, it was decided by the 1[st] respondent not only to recall the impugned Ext.P12 order and but also to conduct the hearing in the matter etc,. 7. Sri.Thomas George, learned counsel appearing for the respondent Nos.2 and 3 (Kizhakkambalam Grama Panchayath) submits that the present secretary of the Grama Panchayath is on leave and it is not known as to whether notice of the hearing has been served on the respondent Grama Panchayath. 8. Dr.George Abraham, learned counsel appearing for R5 would submit that it is learned that an authorised representative of the 2[nd] respondent Kizhakkambalam Grama Panchayath, is attending the hearing which is scheduled to be conducted before the 1[st] respondent Government today. 9. The learned counsel for the petitioner would submit that further detailed hearing in the matter is required and that this Court may direct that further detailed hearing in the matter may be afforded to the petitioner and any of the interested parties concerned. 10. Dr.George Abraham, learned counsel appearing for 5[th] respondent would urge that the third party like the petitioner herein 7 W.P(C). No. 3857 of 2020 has no _locus standi_ to raise any objections in respect of the regularisation granted to a party like 1[st] respondent herein and the learned counsel for 5[th] respondent would place reliance on the judgment of this Court rendered in _**Krishna Mahadevan v. K.R.Moniamma and Others**_ (judgment dated 18-12-2019 of the Division Bench in W.A No.2264 of 2019 etc,.) 11. Per contra, Sri.M.M.Monaye, learned counsel appearing for the petitioner would point out that the legal principles laid down by the Division Bench in the said judgment in Krishna Mahadevan's case (Supra) will not apply to the facts and circumstances of this case. It is for the parties concerned to raise such submission and it is for the competent authority 2[nd] respondent to advert to the said rival submissions and then take a considered decision on such issues as well. 12. After hearing both sides and after careful evaluation of the facts and circumstances of the case, this Court is of the considered view that in order to ensure that the decision making process is fair and also to ensure that the decision is rendered after due consideration of all relevant and necessary matter, it is ordered that the 1[st] respondent shall not pass orders immediately pursuant to the W.P(C). No. 3857 of 2020 8 hearing conducted today. Hence it is also ordered that the competent authority of the 1[st] respondent (Local Self Government Department) will ensure that a further opportunity of being heard shall be granted to the petitioner through his authorised representative/counsel if any, and to any of the other interested parties concerned, including the respondent Kizhakkambalam Grama Panchayath and R5 herein and after taking into consideration all necessary matters, considered decision may be rendered on the matters that has to be considered in Ext.P8 judgment dated 24-12-2019 rendered by this Court in W.P(C)No.35814/2019. Considered decision in this regard shall be duly rendered by the competent authority of the 1[st] respondent Government, without much delay preferably within a period of three to four weeks from the date of production of a certified copy of the judgment. With these observations and directions, the above Writ Petition (Civil) will stand disposed of. **Sd/ALEXANDER THOMAS, JUDGE** KAS W.P(C). No. 3857 of 2020 9 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 26.6.2014 IN WPC NO. 26951/2006.** - **EXHIBIT P2 TRUE COPY OF THE ORDER DATED 13.3.2015 PASSED BY THE 2ND RESPONDENT.** - **EXHIBIT P2 (A) TRUE ENGLISH TRANSLATION OF EXT. P2.** **EXHIBIT P3** - **TRUE COPY OF THE ORDER NO. AS4936(1)/14 DATED 13.3.2015 OF THE 2ND RESPONDENT.** - **EXHIBIT P3 (A) TRUE ENGLISH TRANSLATION OF EXT. P3.** **EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS IN THE ORDER DATED 20.9.2019 BY THE 4TH RESPONDENT.** - **EXHIBIT P4 (A) TRUE ENGLISH TRANSLATION OF EXT. P4. EXHIBIT P5 TRUE COPY OF THE PETITION DATED 30.10.2019 SUBMITTED BY THE 5TH RESPONDENT BEFORE THE 1ST RESPONDENT.** - **EXHIBIT P6 TRUE COPY OF THE REQUEST SENT TO THE 1ST RESPONDENT ON 18.12.2019 BY THE PETITIONER.** **EXHIBIT P7 TRUE COPY OF THE POSTAL RECEIPT DATED 18.12.2019.** - **EXHIBIT P8 TRUE COPY OF THE JUDGMENT IN WPC 35814/2019 DATED 24.12.2019.** **EXHIBIT P9 TRUE COPY OF THE COVERING LETTER DATED 30.12.2019.** **EXHIBIT P10 TRUE COPY OF THE POSTAL RECEIPT DATED 30.12.2019 IN TOKEN OF HAVING SENT THE LETTER.** - **EXHIBIT P11 TRUE COPY OF THE PRINT OUT OF THE TRACK CONSIGNMENT TAKEN ON 7.2.2020.** W.P(C). No. 3857 of 2020 10 **EXHIBIT P12 TRUE COPY OF THE ORDER NO. 470/RB1/2019/LSGD DATED 22.1.2020 OF THE 1ST RESPONDENT. EXHIBIT P12 (A) TRUE ENGLISH TRANSLATIONAL OF EXT.P12.** **RESPONDENT'S/S EXHIBITS: NIL**