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2019 DIGILAW 201 (KER)

St Stephens Malankara Catholic Church v. State of Kerala

2019-02-26

DEVAN RAMACHANDRAN

body2019
ORDER : Devan Ramachandran, J. 1. Kerala, is again flooded with unauthorised flex boards/advertisement boards/banners/flags, but Government of Kerala is doing nothing against this, bewails the learned Amicus Curiae, Shri.Harish Vasudevan. 2. The State has done everything possible and it is now the Secretaries and Field Staff of the various Local Self Government Institutions who are fully responsible; because the Government has issued specific directives/circulars empowering them to remove all the boards and to take all necessary steps, including by registration of Criminal Cases, against the perpetrators of such unauthorised action and therefore, that, if they fail to act, then they should be made fully accountable," retorts Shri.K.V.Sohan, the learned State Attorney. 3. In the above scenario, I am now compelled to issue further orders in this case; particularly since the Amicus Curiae has today filed an additional report, dated 26.02.2019, wherein, he unequivocally says that after 30.11.2018,which was the earlier deadline fixed by this Court, the menace of unauthorised boards/flags/banners has now resurfaced with renewed vigour. He says that the main perpetrators of this are the political parties, film entities and such other vested interests; and he shows from the photographs, exhibited along with his report, that the threat is now again assuming enormous proportions. 4. The effort of this Court, in controlling this horrible menace, commenced by the first interim order, dated 27.07.2018, and thereafter, I have issued 10 more orders. In each of these orders, I have been issuing directions to the Competent Authorities, including the State of Kerala, to issue directives and circulars to the various Local Self Government Institutions, to control, regulate and remove unauthorised boards/banners/flags and each of these orders were implicitly obeyed by the Competent Authorities of the Government, by issuance of either Government Orders or Circulars. 5.1 notice from the materials on record, that there are at least five such Orders/Circulars issued by the Government, in each of which, the absolute inviolability of the need to remove these unauthorised boards/banners/flags have been restated and reiterated. 6. The State Police Chief and the Chief Secretary of the Government of Kerala have also filed independent affidavits, again affirming that this menace is now becoming uncontrolled. 6. The State Police Chief and the Chief Secretary of the Government of Kerala have also filed independent affidavits, again affirming that this menace is now becoming uncontrolled. In fact, the Chief Secretary says in his affidavit, dated 28.01.2019, that more than 3.5 lakh unauthorised boards have been removed from all over Kerala and that a Government Order, dated 21.01.2019, copy of which is on record as Ext.R17(f), has been, therefore, issued specifically authorising the Secretaries of the Local Self Government Institutions to act as per the directions of this Court and to remove all unauthorised boards and to collect the revenue lost therefrom from the concerned persons/entities. 7. In the backdrop of all these, it is certainly amazing that unauthorised boards have again proliferated, indicating without doubt that the concerned Authorities have now disregarded orders of this Court as well as the Circulars/directives of the Government. This is a very serious situation which warrants immediate action from this Court; otherwise it will not be possible to now control this hazard any further. 8. Shri.K.V.Sohan, learned State Attorney, takes the position that the Government have issued necessary circulars and orders, sufficiently empowering the Secretaries and Field Staff of the Local Self Government Institutions; and therefore, that it is their obligation to act effectively. He also says, as is clear from various circulars/orders, that they have been sufficiently warned that if they are found to fail in their duties, they would be proceeded against very stringently. He, therefore, prays that this Court now issue specific directions to such Authorities to act as per the earlier interim orders of this Court as also the directives/circulars already issued by the Government. 9. Shri.Nandakumara Menon, learned Senior Counsel appearing for Thiruvananthapuram Corporation; Shri.Babu Karukapadathu, learned Counsel appearing for the Cochin Corporation; Shri.B.S.Syamanthak, learned Counsel appearing for Calicut Corporation and Shri.K.K.Chandran Pillai, learned Senior Counsel, assisted by Smt.S.Ambily, learned Counsel appearing for Kannur Corporation, all assert that the Secretaries of the Local Self Government Institutions are, many a time, dissuaded from acting under the orders of this Court on account of the severe threat and intimidation caused to them by the persons/entities who place these unauthorised boards. In fact, Shri.Nandakumara Menon, learned Senior Counsel, candidly admitted that even though the Secretary of the Thiruvananthapuram Corporation has done everything possible, he has limitations because most of these boards are erected by the most powerful political parties, including the ruling one. This submission of the learned Senior Counsel is certainly credible because, going by the photographs produced by Shri.Harish Vasudevan in his report dated 26.02.2019, all the boards shown therein have been placed unauthorisedly by the most prominent political parties in the State on either side of the political divide. Indubitably therefore, the Secretaries may find it extremely consternating at times to act against these boards, on account of the threat and intimidation that they face from persons who keep these boards for their vested interests. 10. Certainly, therefore, the time has come for this Court, to take cognizance of this and issue orders. I, therefore, order: (a) That all unauthorised flex boards/advertisement boards/banners/flags/hoardings which are now remaining on the public spaces/streets in this State shall be forthwith removed by the Secretaries of the concerned Local Self Government Institutions within a period of 10 days from today. (b) Every unauthorised board/banner/flag/hoarding which remains after 10 days from today will become the personal responsibility of the concerned Secretary/Field Staff of the Local Self Government Institutions; and as I have already cautioned in my earlier order dated 23.10.2018, the advertisement tariff and penalties for such boards will be recovered from such officers, through a personal recovery action to be initiated under the provisions of law, including the Revenue Recovery Act. (c) Since the State Government, as has been stated before me by Shri.K.V.Sohan, has virtually adopted the stand that they have no effective mechanism in enforcing orders against the Secretaries of the Local Self Government Institutions, and consequently, that the entire responsibility to enforce such orders/directives are on such officers, I order that the District Collectors of the respective districts shall, after a period of 10 days from today, cause an inspection of the territory under them and initiate action with respect to each unauthorised board/banner/flag/hoarding and make the concerned Secretary/Field Staff of the said Institution personally responsible and initiate action against them. (d) The concerned Secretary/Staff of the Local Government Institution shall, within the next 10 days, remove each of the unauthorised boards/banners/flags/hoardings, but shall not deposit them in the public disposal system and shall return each of them to the persons/entities who place or erect it illegally. They shall also, in addition to this, charge these persons/entities the applicable Tariff and Penalty and initiate action for recovery, failing which they will become responsible for such amounts. I further order that when any unauthorised board/flag/banner/hoarding is detected and consequentially removed and returned to the entity/person, an appropriate criminal case, either under the IPC or under the Highway Act or under the Police Act or all of them shall be charged and registered against the persons/entities responsible for its erection and the Station House Officer of the Local Police Station will be responsible for the registration and investigation of such offences, once information to that effect is given by the Local Self Government Institutions to them. (e) The State Police Chief will ensure that all Station House Officers of the Police Stations under him are adequately instructed to register cases against the entities/persons who erect such unauthorised boards/banners/flags/hoardings, once such information is given to them by the Authorities of the Local Self Government Institutions and that investigation into such crime shall be conducted without fear or favour. (f) State Police Chief will also instruct the Station House Officers of all Police Stations to afford effective and adequate protection to the Secretaries, Field Staff and other employees of the Local Self Government Institutions, whenever such a requisition is made, so as to enable such persons to act in terms of this order without intimidation. (g) Even though the Government has appointed two officers at the highest level as the "Nodal Officers", the experience in the past few months has shown that these officers have thoroughly failed in what was entrusted to them; and I, therefore, am of the firm opinion that a Nodal Officer for each district now becomes imperative. I, resultantly direct the Government to appoint the respective Deputy Directors of Panchayaths and Regional Joint Directors of Urban Affairs to be the Nodal Officers, who will oversee the implementation of the orders of this Court as well as the Circulars and Orders of the Government and they will be in overall supervision and control over the entire exercise in future. The notification for this purpose shall be issued by the Principal Secretary, Local Government Institutions, within a period of one week from the date of receipt of copy of this order. (h) The respective Deputy Directors of Panchayaths and the Regional Joint Directors of Urban Affairs will publish their phone numbers, e- mail addresses and whatsapp numbers, if available, by making suitable notifications and publications, so that any member of the public and the citizenry of this State can approach said officers, whenever a violation is noticed by them. This shall be done by the respective officers without any delay but within a period of three days after the Government notifies them as the Nodal Officers. 11. This order will continue to be in effect and will regulate every unauthorised board/banner/flag/hoarding that may be placed in the public places of the State until further orders and that the Secretaries/Field Staff will ensure that the boards/banners/flags/hoardings erected hereinafter be removed in the same manner as has been directed in this order without fail. 12. I further direct the Principal-Secretary, Local Self Government Institutions as also the State Police Chief to communicate this order to all the Local Self Government Institutions, District Collectors, Deputy Directors of Panchayaths and Regional Joint Directors of Urban Affairs and the Police Stations forthwith by E-mail, fax etc. List this case on 25.03.2019.