IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 20427 of 2009(O)
1. S.KARTHIKEYAN, AGED 64 YEARS,
... Petitioner
2. BALACHANDRA MENON, AGED 56 YEARS,
3. SURESH GOPI, AGED 50 YEARS,
4. DR.C.BHARATH CHANDRAN, AGED 60 YEARS,
5. BRIG.G.MOHAN (RETD.), AGED 65 YEARS,
6. B.RAMADAS, AGED 68 YEARS,
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. THE PRINCIPAL SECRETARY TO GOVERNMENT,
3. SHRI.C.REGHU, DEPUTY SECRETARY TO
4. SHRI AJITH KUMAR P.S.,
5. THE TRIVANDRUM GOLF CLUB REPRESENTED
For Petitioner :SRI.K.RAMAKUMAR (SR.)
For Respondent :SRI.RANJITH THAMPAN,ADDL.ADVOCATE GENER
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :13/08/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).No.20427 of 2009 - O
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Dated this the 13th day of August, 2009
J U D G M E N T
This writ petition is filed seeking the following reliefs:
“i) To call for the records leading upto Exhibit P8
and quash the same by the issuance of a Writ of
Certiorari of any appropriate writ, order or direction.
ii) To issue a Writ of Mandamus commanding the
respondents not to terminate the licence except in
accordance with law and following fair procedure
solely based on the order of the learned District
Judge.”
2. The short facts giving rise to the writ petition can be
summed up thus:
Petitioners who are stated to be the life members of the
fifth respondent, namely, Trivandrum Golf Club, in a
representative capacity on behalf of all members of the above
Club instituted a suit as O.S.No.76/2009 before the II Additional
Sub Court, Thiruvananthapuram seeking a declaration that the
Government is not entitled to revoke or cancel the agreement
entered with the Club, dated 24.6.1967, and for other reliefs. In
W.P.(C).No.20427 of 2009 – O
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the above suit, an application for interim injunction to restrain
the Government from terminating the licence agreement and
taking over the plaint property, wherein the club is situate, was
applied for, and that was resisted by the defendants 1 to 3, the
State and two of its officers, by filing objections. The above
defendants also moved another application for rejection of the
plaint contending that the plaintiffs have no locus standi to
institute the suit and seek the reliefs thereunder. Both the
applications, after being heard together, were disposed by the
learned II Additional Sub Judge, dismissing the application of the
defendants 1 to 3 challenging the entertainability of the suit, and
allowing the application of the plaintiffs for interim injunction
restraining the State and its public officers from terminating the
licence agreement pursuant to orders/notices issued and from
taking any action depriving the plaintiffs from using the plaint
property for golf course. The State and defendants 2 to 3
preferred an appeal as C.M.A.No.32/2005 before the District
Court, Thiruvananthapuram challenging the order of interim
injunction granted in favour of the plaintiffs. Learned District
W.P.(C).No.20427 of 2009 – O
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Judge after hearing both sides passed Ext.P8 judgment vacating
the order of interim injunction. Propriety and correctness of P8
judgment is challenged in the writ petition invoking the
supervisory jurisdiction vested with this Court under Article 227
of the Constitution of India.
3. Though arguments were advanced by both sides on
the merits of the writ petition at length, relying upon binding
judicial precedents applicable to the facts of the case, in the
course of the hearing, a suggestion put forward by the learned
senior counsel for the petitioners, Sri.K.Ramakumar, that if the
Government extends an opportunity to the Club, fifth respondent,
to show cause against the termination of the licence agreement
under P3 order and alleged violation of the terms of the
agreement under P4 notice, providing it reasonable opportunity
to present its case, with this Court fixing the time limit as well,
the disputed questions involved and arising for consideration
need not be gone into at this stage in the present writ petition,
was accepted in all fairness by the learned Additional Advocate
General, Sri.Renjith Thampan, and that being so, the merit of the
W.P.(C).No.20427 of 2009 – O
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judgment impugned in the petition and contextual facts involved
in the present case giving rise to the decision no longer arise for
consideration. The learned Additional Advocate General
submitted that Ext.P3 order was issued strictly in compliance with
the mandatory directions given in Ext.P2 judgment rendered by
the learned Single Judge, within the time limit specified
thereunder. However, as there is an observation in Ext.P5
judgment rendered by the Division Bench in writ appeal No.2442
of 2008, preferred against Ext.P2 judgment, that notice before
proceeding under either of the two limbs of Clause 11 of P1 deed
of licence, is proper, appropriate and necessary the Government
has no objection in extending an opportunity to the fifth
respondent, Golf Club, to show cause by submitting written
objections and also an opportunity to produce materials, why
termination of the licence under P3 need not be given effect to.
So far as the proceedings initiated under P4 notice allegedly for
violation of the terms of the agreement, notice had already been
issued under annexure 2 produced with the statement filed as
counter to the writ petition and annexure 3 letter was given in
W.P.(C).No.20427 of 2009 – O
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reply by the fifth respondent, Golf Club, that in view of the suit
filed by the petitioners and the interim orders passed therein the
Club is unable to attend for hearing as the matter would amount
to subjudice, submits the Additional Advocate General. So far as
extending opportunity to the Club to show cause and also
furnishing materials to substantiate their objections, if any, both
in respect of P3 order and P4 notice, it is submitted by the
learned Additional Advocate General, the Government has no
objection, but, time limit for doing so has to be fixed by this
Court. In the light of the submissions made and in view of the
consensus expressed by the counsel on both sides, I find the
challenge raised against the decision rendered under P8
judgment of the learned District Judge vacating the order of
interim injunction passed by the learned Additional Sub Judge is
not a matter in issue. However, the learned senior counsel
Sri.K.Ramakumar made a request that the status quo as on date
be allowed to continue till the disposal of the suit, but it was
strongly objected to by the learned Additional Advocate General,
Sri.Ranjith Thampan. I find that no order of status quo till the
W.P.(C).No.20427 of 2009 – O
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disposal of the suit, until adjudication of the disputes involved
therein in trial and decision thereof, as canvassed by the learned
counsel for the petitioners, is possible or allowable, nor is it fair
or reasonable, as it will place fetters and cause impediments to
the Government in taking appropriate action proceeded with
under P3 order and P4 notice subject, of course, to the
acceptability of the cause, if any, shown by the fifth respondent,
Club, against such proceedings. In view of the consensus
expressed at the bar during the hearing of the petition it is
ordered that the respondents shall provide an opportunity to the
fifth respondent Golf club to show cause why P1 licence is not
liable to be revoked as ordered under P3 order and extend it
personal hearing before taking any decision on the termination of
the licence granted. Fifth respondent is given one month time
from the date of this judgment to show cause to P3 order and, if
cause thereof is shown, the Government shall pass appropriate
orders, after affording personal hearing, taking note of the cause
presented, in accordance with law, within a further period of
three months. I make it clear no separate show cause notice to
W.P.(C).No.20427 of 2009 – O
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the club in respect of P3 order from Government is contemplated,
but the Club has to show cause, if any, against the above order
within the time limit fixed. Similarly, if the club moves a
representation showing cause within a period of one month from
the date of this judgment against the action contemplated under
P4 order for alleged violation of the terms of the licence, after
affording them opportunity for personal hearing, the Government
shall pass appropriate orders, taking note of the cause, if any,
shown, in accordance with law. In respect of the proceedings
covered by P4 after submission of the representation, if any, by
the fifth respondent I do not propose to fix any time limit on the
Government for completing the enquiry thereunder and passing
of final orders. But, it is made crystal clear that the pendency of
the suit filed by the members of the Club will not stand in the
way of the Government in passing appropriate orders in
proceedings arising from P3 order and P4 notice.
4. The learned Additional Advocate General has
submitted that till passing of the final orders emanating from
proceedings under P3 order/P4 notice issued, as the case may be,
W.P.(C).No.20427 of 2009 – O
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the possession and enjoyment over the land and building by the
fifth respondent, Golf Club, will not be disturbed by the
Government. Submission made by the Additional Advocate
General as above is recorded.
5. Before disposing of the writ petition with the
directions/observations as above, reference has to be made to
the suggestion given to the Government in P8 judgment by the
learned District Judge as to whether someone other than
defendants 2 and 3 in the suit, who are the second and third
respondents respectively in the writ petition, be entrusted with
the hearing of the matter arising from P3 order and P4 notice so
as to avoid the apprehension raised by the petitioners/plaintiffs in
the suit that proper decision will not be passed by the above said
second and third respondents. The learned District Judge has
given such a suggestion to the Government observing that it is
settled law that “……..justice is not only to be done but appears
to have been done as well”. Though the writ petition filed against
P8 judgment is disposed of without going into its merits in the
light of the consensus arrived at the time of hearing, this Court
W.P.(C).No.20427 of 2009 – O
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vested with the supervisory jurisdiction over subordinate courts
under Article 227 of the Constitution of India cannot overlook and
discard a direction or suggestion issued by a subordinate court
that too to the Government, which appears, prima facie, tainted
with impropriety. A Government functions through the
executives and it is for the Government to decide as to with
whom its administrative functions are to be discharged. Plaintiffs
in the suit are stated to be members of the fifth respondent Club
and the suit has been filed in a representative capacity as
members of the Club. They cannot have any better right than
the Club. The fifth respondent ‘Golf Club’ has not raised any
grievance or apprehension as to the fairness and impartiality of
second and third respondents. It is unfair and rather most
unwarranted for the learned District Judge to suggest to the
Government to consider the avoiding of hearing by the second
and third respondents in view of the apprehension raised by the
petitioners/plaintiffs. First and foremost, while disposing of a
challenge against an order in an interlocutory proceedings in a
suit the court below was incompetent, and not empowered to
W.P.(C).No.20427 of 2009 – O
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give any such suggestion to the Government as expressed by the
learned District Judge in P8 judgment. Even if no imputation is
made against second and third respondents by way of the
suggestion given it has the effect that the apprehension of the
petitioners that second and third respondents are not fair and
impartial in discharge of their official duties as Government
officers was found appealing to the court. Petitioners, even if
they are life members of the Club cannot have a say as to who
should conduct the hearing in respect of the proceedings initiated
by the Government against the fifth respondent, Golf Club. Even
if the fifth respondent raises such an apprehension it is for the
Government to consider on its merit and take appropriate
decision. Suggestion given by the learned District Judge under
P8 judgment to the Government in effect may cause an
aspersion, even if not intended to nor even remotely
contemplated, on the fairness and impartiality of the second and
third respondents, responsible public officers, in the discharge of
their official duties. Reputation of an individual, whether it be as
a responsible public official or otherwise, is an important part of
W.P.(C).No.20427 of 2009 – O
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one’s life. When an authority or public official has to discharge
its duties fastened upon him under law, he cannot be expected to
pass orders to the liking of the party proceeded against. That is
not sufficient for the party proceeded with to raise an
apprehension against the authority or public official concerned,
and the court to make suggestion to Government as was made in
the present case placing reliance on the principles governing
natural justice. In expressing opinions/suggestions judges and
magistrates must be guided by consideration of justice, fair play
and restraint. Whether there was any material on record on the
conduct of second and third respondents to approve or even to
consider the apprehension of the petitioners and whether those
public officials had any opportunity of explaining or defending
themselves against the challenge as to their fairness and
impartiality in discharge of official duties, are all matters
germane for consideration in making observations/suggestions
which tend to affect the reputation of the public officials. So
much so, suggestion made in P8 judgment to the Government as
to avoiding of the hearing of the proceedings on P3 order and P4
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notice by the second and third respondents and entrusting them
to some other person is liable to be ignored as of no consequence
and the Government is free to decide as to who should be
entrusted with the task of hearing the proceedings involved.
Subject to the above directions and observations the writ
petition is closed.
S.S.SATHEESACHANDRAN,
JUDGE.
bkn/-