SUNIL KUMAR, S/O.DIVAKARAN versus THE PRINCIPLE SECRETARY TO GOVERNMENT

High Court of Kerala

Indian Supreme Court Cases / Judgements / Legislation

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SUNIL KUMAR, S/O.DIVAKARAN v. THE PRINCIPLE SECRETARY TO GOVERNMENT - WP(C) No. 34523 of 2006(I) [2007] RD-KL 6239 (26 March 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 34523 of 2006(I)

1. SUNIL KUMAR, S/O.DIVAKARAN,
... Petitioner

Vs

1. THE PRINCIPLE SECRETARY TO GOVERNMENT,
... Respondent

2. SUDHAKARAN, JOINT DIRECTOR OF PANCHAYAT,

3. BALACHANDRAN, SUPERINTENDENT OF POLICE,

4. GRACE JULIET MENDES,

For Petitioner :SRI.V.S.BABU GIREESAN

For Respondent :SRI.V.N.ACHUTHA KURUP (SR.)

The Hon'ble MR. Justice PIUS C.KURIAKOSE

Dated :26/03/2007

O R D E R

PIUS C. KURIAKOSE, J.

W.P.(C) No. 34523 OF 2006

Dated this the 26th day of March, 2007

JUDGMENT

Even though there is considerable force in the submissions of Mr.U.N. Achuthakurup, Senior Counsel and those of Sri.Pirappancode V. Sreedharan Nair, counsel for the party respondents, in the light of the facts which have been unfurled in this case, that this Court will not be justified in invoking its discretionary jurisdiction in favour of the petitioner. I feel that for the short reason that Ext.P5 order of the Government has been passed without notice to the petitioner and hence violative of the rule of audi alteram partem, the petitioner should be afforded an opportunity for hearing. But at the same time I agree that Sri. Achuthakurup, Senior Counsel is certainly right in submitting that mere quashment of Ext.P5 order will not be a good reason for the petitioner to obtain licence from Panchayat since Ext.R5(a) order is not yet to be challenged by the petitioner.

2. Ext.P5 order has been passed by the Government relying mainly on the report submitted by the 3rd respondent who investigated into certain offences allegedly committed by the husband of Smt.Hema V. Kumar and also by Smt.Hema V. Kumar herself represented in this proceeding by the writ petitioner. Under Ext.P5, the Government  WPC No.34523/2006 2 instructs the Secretaries of the 4th respondent-Panchayat and Elamad Panchayat where Smt.Hema V. Kumar and her husband were conducting another crusher unit, to stop the functioning of those metal crusher units and also to take necessary action to stop the transfer of ownership of the units in question. Obviously, the order restraining transfer of ownership has been passed by the Government in the interest of the complainants who had complained to the police that money belonging to them had been defalcated by Smt.Hema V. Kumar and her husband who were doing finance business. Therefore even as I am inclined to quash Ext.P5 on the ground that the same has been passed without notice to Smt.Hema V. Kumar, there will a be a direction that Smt.Hema V. Kumar will not be entitled to transfer any of the properties standing in her name till the Government takes a final decision. Ext.R5(a), as rightly submitted by the learned Senior Counsel for the Panchayat, is yet to be challenged by the petitioner. The petitioner is permitted to challenge Ext.R5(a) in appropriate proceedings within a period of one month from today.

3. Under these circumstances, the Writ Petition will stand disposed of without going into the merits of the other grounds raised and the rival contentions taken, issuing the following directions: Ext.P5 is quashed on the ground that it is violative of the  WPC No.34523/2006 3 principles of natural justice and the Government is directed to take fresh decision on the issue with notice to the 3rd respondent investigating officer, the Secretaries of the Velinalloor Grama Panchayat and Elamad Panchayat and also to respondents 6 & 7. Government will take fresh decision as directed above within three months of receiving copy of this judgment. It is made clear that I have not expressed any opinion on the merits. I am in agreement with the submission of Sri.Achuthakurup that it was absolutely unnecessary on the part of the petitioner to have arrayed the Secretaries of the Panchayats eo-nomine as parties in this Writ Petition nevertheless I refrain from awarding costs to them by the petitioner. But the petitioner will have to convince the Government that he holds a duly executed power of attorney from Smt.Hema V. Kumar, before the Government allows him to represent her.

PIUS C. KURIAKOSE, JUDGE

btt  WPC No.34523/2006 4 

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