IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 13TH AUGUST 2009 / 22ND SRAVANA 1931 WP(C).No. 20427 of 2009(O) --------------------------------------- CMA.32/2009 of DISTRICT COURT,TRIVANDRUM OS.76/2009 of II ADDL.SUB COURT,TRIVANDRUM .................... PETITIONER(S): ---------------------- 1. S.KARTHIKEYAN, AGED 64 YEARS, SON OF LATE P.SUBRAMANIAN, SENTHIL NO.1, P.SUBRAMANIAN NAGAR, KILLIPALAM, THIRUVANANTHAPURAM-695 002. 2. BALACHANDRA MENON, AGED 56 YEARS, SON OF LATE SIVASANKARA PILLAI, 'V' AND 'V', BHARATH LANE, KOCHAR ROAD, SASTHAMANGALAM, THIRUVANANTHAPURAM-695 010. 3. SURESH GOPI, AGED 50 YEARS, SON OF LATE K.GOPINATHAN PILLAI, LEKSHMI, TEMPLE ROAD, SASTHAMANGALAM, THIRUVANANTHAPURAM- 695 010. 4. DR.C.BHARATH CHANDRAN, AGED 60 YEARS, SON OF LATE CHANDRASEKHARAN NAIR, MANAGING DIRECTOR, SUT HOSPITAL, PATTOM, THIRUVANANTHAPURAM-695 004. 5. BRIG.G.MOHAN (RETD.), AGED 65 YEARS, SON OF LATE A.K.GOVINDAN, VAYALIL, MRA (105), VANCHIYOOR P.O., THIRUVANANTHAPURAM-695 035. 6. B.RAMADAS, AGED 68 YEARS, SON OF BHOOTHALINGAM PILLAI, HARI SREE, RASCOTA LANE, VAZHUTHACAUD, THIRUVANANTHAPURAM. BY MR.K.RAMAKUMAR, SENIOR ADVOCATE ADV. MR.A.ABDUL KHARIM MR.T.RAMPRASAD UNNI MR.J.R.PREM NAVAZ SMT.SMITHA GEORGE RESPONDENTS/DEFENDANTS: -------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. WP(C).No. 20427 of 2009(O) 2. THE PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. SHRI.C.REGHU, DEPUTY SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 4. SHRI AJITH KUMAR P.S., SON OF LATE P.S.SREENIVASAN, A-3, REVATHY, TENNIS CLUB ENCLAVE, KOWDIAR, THIRUVANANTHAPURAM-695 003. 5. THE TRIVANDRUM GOLF CLUB REPRESENTED BY ITS HONORARY SECRETARY, GOLD CLUB, THIRUVANANTHAPURAM. R1 TO R3 BY ADV. MR.RANJITH THAMPAN,ADDL.ADVOCATE GENERAL R5 BY ADV. MR.SAJU. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/08/2009, THE COURT ON 13/08/2009 DELIVERED THE FOLLOWING: WP(C) NO. 20427/2009-O APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE DEED OF LICENCE DATED 24/06/2007 BETWEEN THE TRIVANDRUM GOLF CLUB AND THE GOVERNMENT OF KERALA ALONG WITH G.O.(MS) NO.226/66/PW DATED 11/10/1966 AND A COPY OF COVERING LETTER NO.G.7-31871/65 DATED 03/07/1967 SENT BY THE EXECUTIVE ENGINEER TO THE CHIEF ENGINEER, GENERAL ENGINEER & B & R, THIRUVANANTHAPURAM. EXT.P2: COPY OF THE JUDGMENT DATED 23/09/2008 IN WP(C) NO. 16393/2008. EXT.P3: COPY OF THE SHOW CAUSE NOTICE NO.20067-1/U1/2007/RD DATED 15/11/2008 ISSUED BY THE GOVERNMENT OF KERALA. EXT.P4: COPY OF THE SHOW CAUSE NOTICE NO.20067-1/U1/2007/RD DATED 17/11/2008 ISSUED BY THE GOVERNMENT OF KERALA. EXT.P5: COPY OF THE JUDGMENT DATED 06/01/2009 IN W.A. NO.2442/2008. EXT.P6: COPY OF THE COMMISSION REPORT DATED 12/02/2009 SUBMITTED BY THE ADVOCATE COMMISSIONER IN O.S.76 OF 2009 ON THE FILE OF THE IIND ADDL. SUBORDINATE JUDGES COURT, THIRUVANANTHAPURAM. EXT.P7: COPY OF THE COMMON ORDER IN I.A. NO.636 OF 2009 & I.A. NOS.287 OF 2009 IN O.S. NO.76 OF 2009 DATED 27/03/2009 ON THE FILE OF THE IIND ADDL. SUBORDINATE JUDGE'S COURT, THIRUVANANTHAPURAM. EXT.P8: COPY OF THE ORDER DATED 15/07/2009 IN C.M.A. NO.32 OF 2009 ON THE FILE OF THE DISTRICT COURT, THIRUVANANTHAPURAM. EXT.P9: COPY OF THE COMMUNICATION DATED 27/06/2008 SENT BY THE DEPARTMENT OF CULTURAL AFFAIRS TO THE PRESIDENT OF THE PETITIONER CLUB. EXT.P10: COPY OF THE COMMUNICATION DATED 06/02/2009 FROM THE GOVERNMENT OF INDIA TOURISM DEPT. TO THE CLUB. EXT.P11: COPY OF THE COMMUNICATION DATED 21/01/2009 FROM THE PRESIDENT OF THE CLUB TO THE PRINCIPAL SECRETARY, REVENUE DEPARTMENT. RESPONDENT'S ANNEXURES: ANNEXURE 1: COPY OF THE MEMORANDUM OF WRIT APPEAL NO.2442/2008. ANNEXURE 2: COPY OF THE GOVERNMENT LETTER DATED 06/04/2009 ISSUED TO THE TRIVANDRUM GOLF CLUB. ANNEXURE 3: COPY OF THE LETTER DATED 20/04/2009 OF TRIVANDRUM GOLF CLUB. //TRUE COPY// P.S. TO JUDGE rs. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.20427 of 2009 - O --------------------------------- 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 2 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 3 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 4 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 5 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 6 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 7 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 8 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 9 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 10 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 11 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 W.P.(C).No.20427 of 2009 - O 12 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/-