IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 13TH AUGUST 2008 / 22ND SRAVANA 1930 RP.No. 590 of 2008(W) --------------------- AGAINST THE ORDER IN WPC.16363/2008 Dated 02/06/2008 .................... PETITIONER: 2ND RESPONDENT: -------------------------------- DR.NIVEDITA.P.HARAN, PRINCIPAL SECRETARY, DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM. BY ADV. SRI.P.RAVINDRAN (SR.) SRI.HARIKRISHNAN RAVINDRAN RESPONDENTS: WRIT PETITIONERS AND RESPONDENTS NO.1,3,4 & 5: ----------------------------------------------------------- 1. B.RAMDAS, S/O.BHOOTHALINGAM PILLAI, VAZHUTHACAUD, THIRUVANANTHAPURAM. 2. R.JAYAPRAKASH, S/O.T.GOVINDAN NAIR, TC 6/1164, KANJIRAMPARA, THIRUVANANTHAPURAM. 3. PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, THIRUVANANTHAPURAM. 4. THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM. 5. THE TAHSILDAR, TALUK OFFICE, THIRUVANANTHAPURAM. 6. THE STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SHRI.D.ANILKUMAR FOR R6 THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 08/07/2008, THE COURT ON 13.8.2008 PASSED THE FOLLOWING: S.SIRI JAGAN, J. ================== R.P.No.590 of 2008 in W.P.(C) Nos.16260, 16363 and 16393 of 2008 ================== Dated this the 13th day of August, 2008. O R D E R This review petition is filed by Dr.Nivedita P. Haran, the Principal Secretary to the Government of Kerala, Revenue Department, who is impleaded in her personal capacity as the 2nd respondent in W.P.(C) No. 16363 of 2008, seeking review of the common order dated 2.6.2008 in these three writ petitions, which reads thus: “W.P(C) No. 16260/2008 was filed on Friday. That was against Ext.P3 show cause notice directing the petitioner in that writ petition to show cause as to why the properties occupied by the Trivandrum Golf Club should not be resumed by the Government for violation of the terms of the licence issued to the Golf Club, in 1967. On Saturday, the petitioner moved the Honourable Judge holding the charge of the functions of the Chief Justice for moving the writ petition on Saturday and the learned Judge directed the office to ascertain from the Judge concerned as to whether he is willing to hear the matter on Sunday. I being the concerned Judge, when the office contacted me over phone, directed them to ascertain from the learned Advocate General as to whether the further action on the basis of Ext.P3 can be postponed till the writ petition is heard for admission today so that a Saturday-sitting can be avoided, which is of inconvenience to me and all concerned. The learned Advocate General informed the office that he will issue appropriate instructions to the Government in that regard and therefore, it was not decided to hear the writ petition on Saturday. The learned Government Pleader submits that as per the directions r.p.590/08 2 from the Advocate General, he contracted the Revenue Secretary and the District Collector, Thiruvananthapuram, and instructed them to keep further proceedings in abeyance till the matter is heard on Monday. The learned Government Pleader further submits that the Advocate General had also contacted the Chief Secretary and the Law Secretary in the matter conveying the above. The Law Secretary is stated to have informed the same to the Revenue Secretary. In spite of the above, the Revenue Secretary has gone ahead to pass orders on Ext.P3 disregarding the instructions of the learned Advocate General. It is also submitted by the counsel for the petitioner that the order pursuant to the show cause notice was served on him at 9.30 p.m. at the Club premises on Saturday, the 31st May, 2008, pursuant to which possession was taken today morning. 2. I must say that the action of the Revenue Secretary, if true, is thoroughly unbecoming of a Secretary to the Government. The Advocate General, being a constitutional functionary and being vested with the function of advising the Government, when issues an instruction to the Revenue Secretary, the Revenue Secretary was bound to obey the same. The action of the Revenue Secretary, if true, amounts to negation of the very Constitution under which he/she functions and shows scant regard for the judicial system itself, of which the learned Advocate General is a part, as per the Constitution of India. Accordingly, the Revenue Secretary shall appear in person to explain her conduct on 9.6.2008. The learned Government Pleader shall inform the concerned Secretary about this order.” 2. The relevant portions of the review petition are extracted below: “3. The writ petition No. WP(C) 16363/2008 came up for admission on 2.5.2008. The review petitioner was impleaded in a personal capacity as second respondent. This writ petition was taken up along with the WPC No. 16260/2008 and 16303/2008. In WP(C) No. 16260/2008 filed on 30.5.2008 prayer was to interdict the Government from implementing the decision allegedly taken pursuant to the show cause notice issued on 26.11.2007. That writ petition No. WP (C) 16260/2008, it appears was sought to be moved by the petitioners therein on 31.5.2008 which was a Saturday, on which day there is no normal sitting of this Honourable Court. It is learnt that the Honourable Judge having jurisdiction to hear the matter had some inconvenience. Therefore, the writ petition was not moved on that day. It appears that since the writ petitioner expressed urgency in the matter, the Honourable Judge required the Registrar of this Honourable court to find out from the learned Advocate General, r.p.590/08 3 whether action, if any as apprehended by the writ petitioners could be delayed till Monday. 4. It is now learnt that the learned Advocate General assured the Registrar of this Honourable Court that he would instruct the Government to defer any action till Monday. Accordingly, the WP No. 16260/2008 was listed for admission on Monday. 5. In WP(C) No. 16260/2008 the Government of Kerala was the sole respondent represented by the Revenue Secretary. The Council of Ministers met on 31.5.2008 and decided to reject the explanation given by the Trivandrum Golf Club and decided to take over the premises of the Golf Club with immediate effect. The decision of the Council of Ministers was on the Forenoon of 31.5.2008. 6. At about 12.30 PM, when I was having a meeting with the Retired Justice Sri. Manoharan, who is advising the Government on certain land-related issues regarding Harrisom Malayalam Plantations, the review petitioner received a telephone call and the caller identified himself as Sri. D.Anil Kumar, Senior Government Pleader, High Court of Kerala. The review petitioner was informed that the Advocate General has required that the decision of the cabinet if any should not be given effect till Monday in view of the filing of a writ petition, which will be listed on Monday. 7. It is submitted that as per the Rules of Business as well as the circulars issued, the decision of the Council of Ministers has to be implemented within 48 hours after the decision of the Council of Ministers. True copies of the notes dated 20.5.2006 and 14.11.2006 issued by the respective Chief Secretaries are produced as Annexure I and II. As the Principal Secretary to the Department of Revenue, the review petitioner is directly responsible to implement the cabinet decision within 48 hours in view of Annexure I and II. Failure to act in accordance with Annexure I and II would be failure to discharge official responsibilities. In view of this, the review petitioner requested the caller of the phone to pass on the instructions in writing by FAX message. However, the caller did not commit himself to send the same nor did he refuse to do so. There was no further information till 8.30 PM on 31.5.2008. 8. In the meantime, the decision of the Council of Ministers was made available to the review petitioner. At about 4 PM, the review petitioner passed order giving effect to the decision of the cabinet. At about 8.30 PM the review petitioner received a copy of note from the Law Secretary through the Chief Secretary saying that this Honourable Court has issued oral direction that there should not be eviction till r.p.590/08 4 Monday. By that time, the order had been signed by the review petitioner and issued. 9. On receipt of the note from the Law Secretary, I contacted the Honourable Minister for Revenue and informed him of the note. The Honourable Minister who was not in station informed me that the Cabinet decision has to be given effect to unless there is order from this Honourable Court or a written message from the Learned Advocate General. 10. On 2.6.2008 when the writ petition came up for admission before this Honourable Court, the concerned Government Pleader was not able to place these facts before this Honourable Court, since he did not contact me or got instructions. Had the Government Pleader got in touch with me and received true facts nor referred to the note faxed to the Advocate General on the same day morning he could have appraised this Honourable Court of the true state of affairs. 11. It is respectfully submitted that the Learned Advocate General neither contacted me over phone or his office issued any written instructions in this regard. Immediately on coming to know the orders of the Honourable court passed in 2.6.2008, the review petitioner had taken emergent action and restored the property to the Trivandrum, Golf Club on 3.6.2008 in compliance with the orders of this Honourable Court. 12. It is in the above circumstances the order, which is sought to be reviewed, was occasion to be rendered. 13. In the above circumstances, it is just and expedient that this Honourable Court may be pleased to review the order to the extent that it directs my personal appearance before this Honourable Court on 9.6.2008 for the following reasons among other. GROUNDS 1. The order that is sought to be reviewed was passed without considering the actual and true state of affairs. 2. The review petitioner has highest regard of this Honourable Court and is ready and willing to comply with the orders of this Honourable Court. 3. The impugned order was passed ex-parte since the actual and true facts was not brought to the notice of this Honourable Court at the time of passing of the order. r.p.590/08 5 4. As the review petitioner is bound to implement the decision of the cabinet within 48 hours and since there was no order of stay from this Honourable Court, the review petitioner was duty bound to comply with the Annexure I and II. 5. Had the Office of the Advocate General informed me in writing or by FAX message of such as order by this Honourable Court I would not have issued the order based on the decisions of the Council of Ministers. The Learned Advocate General or the Government Pleader had not sought nor taken any instructions from the Government in Revenue Department on the 31st of May 2008. 6. The review petitioner has acted with full bonafides and with the sole purpose of protecting the interest of the State. As the custodian of the state property, the Principal Secretary, Department of Revenue, is bound to implement the decision of the Council of Ministers, especially for recovering the land of more than 25 acres in Thiruvananthapuram city. Every act done by me is in good faith to protect Government interest. 7. The review petitioner has not committed any willful disobedience or neglect in this matter. Hence it is humbly prayed that 1. This Honourable Court may be pleased to review the order dated 2.6.2008 in WPC 16363 of 2008 to the extent that it directs the personal appearance of the review petitioner.” 3. From ground 5 of the review petition it is clear that the petitioner does not dispute the fact that she ought to have postponed passing of the order dated 31.5.2008, which she passed. Her only explanation is that “had the office of the Advocate General informed her in writing or by fax message of such an order by this Court, she would not have issued the order based on the decisions of the Counsel of Ministers”. Therefore, I r.p.590/08 6 need only consider whether the petitioner has justifiable reasons for passing order contrary to the instruction of the Advocate General. 4. Before going into the contentions of the parties, I would like to refer to two legal aspects which have bearing on the issues involved in the case. First is regarding how far the assurance given by the Advocate General to the Court would be binding on the Government and the second is the difficulties both this court and advocates appearing before this court would face if a party to a case is allowed to take a stand that he/she did not comply with instructions given by his/her advocate as per directions of the Court, since no written instructions were given by the advocate. 5. The office of the Advocate General is a Constitutional Office. He is appointed by the Governor of the State as per the mandate in Article 165 of the Constitution of India. The said Article reads thus: “165. Advocate-General for the State.- (1) The Governor of each State shall appoint a person who is qualified to be appointed a Judge of a High Court to be Advocate-General for the State. (2) It shall be the duty of the Advocate-General to give advice to the Government of the State upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Governor, and to discharge the functions conferred on him by or under this Constitution or any r.p.590/08 7 other law for the time being in force. (3) The Advocate-General shall hold office during the pleasure of the Governor, and shall receive such remuneration as the Governor may determine.” The office of the Advocate General is an exalted one and he is the Supreme Law Officer of the State. The Advocate General is conferred the right to audience before the Legislature of the State under Article 177 of the Constitution of India. The importance of the office of the Advocate General and the binding nature of his words in Court on the Government has been emphasised by the Supreme Court and a Division Bench of this Court. On that point, the Supreme Court has in Periyar and Pareekanni Rubbers Ltd. v. State of Kerala [(1991) 4 Supreme Court Cases 195] held thus: “Any concession made by the Government Pleader in the trial court cannot bind the Government as it is obviously, always unsafe to rely on the wrong or erroneous or wanton concession made by the counsel appearing for the State unless it is in writing on instructions from the responsible officer. Otherwise it would place undue and needless heavy burden on the public exchequer. But the same yardstick cannot be applied when the Advocate General has made a statement across the bar since the Advocate General makes the statement with all responsibility.” (Emphasis supplied) A Division Bench of this Court has in Chacko v. State of Kerala [1998(1) KLT 907] held thus on the same point: r.p.590/08 8 “........ But at the same time we cannot ignore the fact that the Advocate General is appointed by the Governor of the State under Article 165 of the Constitution of India and he is a Constitutional functionary whose words are binding on the Government ..........” After holding so, to emphasise the same, the Division Bench referred to the decision of the Supreme Court in Joginder Singh Wasu v. State of Punjab [(1994) 1 SCC 184] quoting the very same words quoted above in Periyar and Pareekanni's case (Supra). Therefore, the binding nature of the words of the Advocate General spoken to the Court, on the Government need not be over emphasised. Here for avoiding a special sitting of the Court, due to inconvenience of the concerned judge, the Advocate General assured the High Court that he would instruct the Government to postpone the decision till 2.6.2008. The Government, who is represented by the petitioner in the review petition, had a solemn duty to abide by that instruction of the Advocate General, whatever the circumstances may have been. Therefore, what the petitioner has done is clearly not correct. Whether it was culpable or not, I shall discuss later after dealing with her explanations for doing what she herself admits she would not have done had the Advocate General given the instruction in writing or by fax message. r.p.590/08 9 6. This court often passes orders in open court and at times directs the advocate to see that their clients do not continue the acts impugned in the case for the time being. When orders are passed in open court which is orally communicated to the client by the advocate, if the client is allowed to take the stand that he/she did not abide by the instruction since he/she has not been informed of the same in writing by the Advocate, the same would result in eroding the very credibility of the profession. In cases where a prima facie case is found by the Court, without passing interim orders, advocates especially the Government Pleaders are at times directed not to proceed with the proposed action until the next posting date, primarily to avoid an embarrassment to the party, particularly the State, who is given an opportunity to offset the prima facie case made out by the other party, by obtaining instructions and arguing the matter in detail. If parties, particularly the State, would not honour such commitment made by counsel, it would be very difficult for counsel to function effectively, especially the Advocate General's Office, which represents the largest litigant in this Court. The State, as a party to a case just like any other party, is also bound to follow r.p.590/08 10 the time honoured conventions and practices followed in this Court. Therefore, it is necessary to curb such tendencies effectively, which was the very purpose of initiating the proceedings, which are sought to be reviewed in this review petition. 7. The petitioner herself admits that at about 12.30 p.m. on 31.5.2008, she received a telephone call and “the caller identified himself as Sri. D. Anil Kumar, Senior Government Pleader, High Court of Kerala”, informing her that the Advocate General required that the decision of the Cabinet, if any should not be given effect to till Monday in view of filing a writ petition, which is to be listed on Monday. The petitioner again states that since she is bound to give effect to the Cabinet decision taken in the forenoon of 31.5.2008 within 48 hours, she “requested the caller of the phone to pass on the instructions in writing by FAX message”, to which “the caller did not commit himself to send the same nor did he refuse to do so.” Since the language used by the petitioner to refer to the caller conveyed the meaning that Sri. D. Anil Kumar, Senior Government Pleader was a stranger to the petitioner, when the review petition came up for admission on r.p.590/08 11 6.6.2008, I wanted to know whether the petitioner knows the said Sri.D.Anil Kumar. As is usually done in Court I asked 'Don't you know Sri.D.Anil Kumar?”. The Senior Advocate appearing for the petitioner promptly and firmly said, “No”. Then I explained to him that when several of the Munnar Demolition cases came before me for hearing, several of the orders of the petitioner herself were ably defended by the said Sri. D. Anil Kumar, Senior Government Pleader himself and therefore it is difficult to believe the statement that the petitioner does not know the said Sri.D.Anil Kumar. I also added that in some of those cases directions issued by the Court orally communicated by the very same Government Pleader were promptly complied with. To this observation of the Court, the Senior Advocate did not respond. When this review petition came up for hearing on 8.7.2008, I again asked the Advocate, 'Do you still maintain that you do not know Sri. D. Anil kumar?'. To this the Senior Advocate expressed surprise and replied that what he meant the other day was that he (the advocate) did not know the Government Pleader and not the petitioner. He further added that as the Secretary of the Revenue Department, the cases r.p.590/08 12 relating to which are being handled by Sri. D.Anil Kumar, she cannot say that she does not know him. He also added that when the next day he read in the papers that he told the Court that the petitioner did not know Sri.D.Anilkumar he was surprised. But he still did not explain why while referring to the same person, in the review petition, language which conveyed an impression to the contrary, was used. Since the explanation came from a Senior Advocate I left it at that. But I cannot help having the feeling that by using such language, the petitioner wanted to convey to this Court, the false impression that the petitioner did not know the “caller” and therefore she insisted on putting the message in writing, which itself suggests that she is trying to wriggle out of her misdoing by a false pretense. 8. Next I shall deal with the explanation furnished in paragraph 7 of the review petition to the effect that as per the Rules of Business as well as circulars issued, namely Annexures I and II, she was bound to implement the Cabinet decision within 48 hours. On 6.6.2008, I wanted the Advocate to show me the Rules of Business, which he promised to produce. When the matter was heard on 8.7.2008, again I wanted the Advocate to r.p.590/08 13 show me the Rules of Business which stipulated that Cabinet decision should be implemented within 48 hours. He thereafter admitted that the Rules of Business do not stipulate so, but Annexures I and II circulars do. Again the petitioner by stating in the review petition that the Rules of the Business stipulated so, approached this Court with false averment. Another false averment to be noted is that in paragraph 5 of the review petition, the petitioner states that “the Council of Ministers met on 31.5.2008 and decided to reject the explanation given by the Trivandrum Golf Club and decided to take over the premises of the Golf Club with immediate effect”. In Ext.R1(i) minutes of the Cabinet meeting dated 31.5.2008, there is no mention of rejection of the explanation given by the Trivandrum Golf Club, although the other parts of the statement find a place therein. 9. In any event, in ground 5 of the review petition the petitioner states thus: “5. Had the Office of the Advocate General informed me in writing or by FAX message of such as order by this Honourable Court I would not have issued the order based on the decisions of the Council of Ministers. The Learned Advocate General or the Government Pleader had not sought nor taken any instructions from the Government in Revenue Department on the 31st of May 2008.” That averment would very well go to show that had the Advocate r.p.590/08 14 General informed her in writing about the direction of this Court, she would not have issued the orders, based on the decisions of the Council of Ministers. Therefore, it was not the Cabinet decision which stood in the way of the complying with the instructions of the Advocate General, but only the lack of written instructions from the Advocate General. Therefore, the explanation in paragraph 7 of the statement of facts in the review petition that she was forced to pass orders because of the Rules of Business and Annexures I and II circulars and the averment in ground 5 thereof are mutually contradictory. This also shows the lack of bona fides on the part of the petitioner in putting forward reasons in justification of her conduct. 10. I have perused Annexures I and II which although were stated to be produced along with the Review Petition filed on 5.6.2008 was actually filed along with I.A. No.289 of 2008 on 6.6.2008. The relevant portion of Annexure I are paragraphs 1 and 2, which read