http://www.the-hindu.com/stories/0407211s.htm
By Our Staff Reporter

KOCHI, DEC. 6. A Division Bench of the Kerala High Court on Wednesday directed the Chief Secretary, Mr. M. Mohankumar, to appear in person before the Bench at 10.15 a.m. on December 18 when the court will frame contempt charges against him for the Government's failure to carry out the Bench's directives for restoring alienated lands to tribals.

The Bench, comprising Mr. Justice P.K. Balasubramanyan and Mr. Justice T. M. Hassan Pillai, issued the directive when a pending contempt of court petition filed by Mr. Nallathampi Thera of Wayanad came up before it.

The Bench issued notices to all the District Collectors and Revenue Divisional Officers (RDOs) to show cause why proceedings under the Contempt of Court Act should not be initiated against them for violating the directives. They were asked to submit their reply before January 8, 2001. However, their personal appearance had been dispensed with till February 8 when the case will be taken up again.

The court had in 1993 directed the Collectors and RDOs to restore the alienated land of tribals in cases where no appeals against the RDOs' orders restoring land were lying and no compensation was payable. The directives were issued under the old tribal land Act - Kerala Scheduled Tribes (Restriction on Transfer of Lands and Restoration of Alienated Lands) Act 1975, on a petition filed by Mr. Thera. As the Government and the authorities concerned failed to implement it, he moved a contempt of court petition.

In an order passed on December 16, 1999 on the contempt plea, the court had found that a contempt charge was ``liable to be framed against'' the Chief Secretary. The Bench had then observed that the contempt proceedings could not be dropped by the mere fact that a new act - the Kerala (Restriction on Transfer by and Restoration of Lands to Scheduled Tribes) Act 1999 - had been passed.

The Bench had given the Government another opportunity to implement the directives. However, when this order was taken up in appeal before the Supreme Court, it was stayed by the apex court on February 7, 2000. The special leave petition (SLP) challenging the order was then tagged on with another SLP challenging the 1993 High Court order and subsequent orders.

The apex court had on August 7, 2000 disposed of all SLPs directing that the interim orders passed by the High Court shall continue during the pendency of the writ challenging the new Act before the High Court. Thereafter, the High Court Bench had finally disposed of the writ by a judgment dated August 24, 2000 which struck down as unconstitutional Sections 5(1) 5(2), 6 and 22 (discriminatory provisions against the tribals) of the 1999 Act. In today's order, the Bench pointed out that in the light of the Supreme Court order, it was clear that ``the suspension'' of the December order passed in the contempt case had ``come to an end''. Since the High Court order in the contempt case had not been ``interfered with by the apex court'', it had ``to be taken'' that the 1999 December order ``has become final''.

The judges also observed that since the December order had ``become final'', the fate of the 1999 Act or the judgment delivered on the writ challenging the 1999 Act ``cannot have much bearing on this court''. In these circumstances, a charge had to be framed against the Chief Secretary for not obeying the directives issued by the court long ago.

The court pointed out that there was no case on behalf of the Chief Secretary even now that anything had been done to comply with the directives of the court. Under these circumstances, the ``only course open to the court is to frame charges against him, especially since he has neither pleaded guilty nor tendered an unconditional apology after admitting that he has committed contempt of court''.

There was not even a submission by the senior Government pleader who appeared for the Chief Secretary that the Chief Secretary intended to implement the directions or proposed to take steps for implementing the same.