M.G.Mathew vs Shareen Hafees
2021 Latest Caselaw 848 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

            THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

     MONDAY, THE 11TH DAY OF JANUARY 2021 / 21TH POUSHA, 1942

          Con.Case(C).No.1818 OF 2020 IN WP(C). 6666/2017


PETITIONER/2ND & 3RD PETITIONERS:

      1      M.G.MATHEW
             AGED 58 YEARS
             HIG-31, PANAMPILLY NAGAR, KOCHI-682 036

      2      SUMA JACOB KORAH,
             HIG- 32, PANAMPILLY NAGAR, KOCHI-682 036

             BY ADVS.
             SRI.P.DEEPAK
             SRI.K.VIDYASAGAR

RESPONDENT/5TH RESPONDENT:

             SHAREEN HAFEES
             W/O. ABDUL WAHAB HAFEES, DOOR NO. TC 31/555, SHALIMAR
             HOUSE, VELLAYAMBALAM,
             THIRUVANANTHAPURAM-695 010, (RESIDING AT GARDEN
             HEIGHTS, APART NO. 1, TC 4/1783-6, BELL HAVEN
             GARDENS, KOWDIAR, THIRUVANANTHAPURAM-695 003

             R1 BY ADV. SRI.K.I.MAYANKUTTY MATHER
             R1 BY ADV. KUM.NARAYANI HARIKRISHNAN

OTHER PRESENT:

             SMT DONA AUGUSTINE- ADVOCATE COMMISSIONER

     THIS CONTEMPT OF COURT CASE (CIVIL) HAVING COME UP FOR
ADMISSION ON 11.01.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 Con.Case(C).No.1818 OF 2020 IN WP(C). 6666/2017

                                      2

                                JUDGMENT

The petitioners have filed this contempt case alleging violation

of Annexure-A1 order of this Court dated 25.07.2019 in W.P.(C)

No.6666 of 2017, whereby this Court granted an interim order

restraining the respondent herein, who is the 5 th respondent in that

writ petition, from proceeding further with the construction in the

land in question, on the strength of Ext.R5(k) building permit,

pending disposal of that writ petition. Paragraphs 13 to 15 of that

order reads thus:

"13. Having considered the pleadings and materials on record and also the submissions made by the learned counsel on both sides, this Court finds that, when the title of the 5 th respondent is in serious dispute, on account of the fact that the land originally owned by the 3 rd respondent, which is Public Trust, was sold on the strength of a resolution stated to have been passed on 08.05.2016, the 5th respondent cannot be permitted to carry out any further construction on the strength of Ext.R5(k) building permit dated 06.02.2019 granted by the Municipal Corporation.

14. In the result, there will be an interim order restraining the 5th respondent from proceeding further with the construction in the land in question, on the strength of Ext.R5(k) building permit, pending disposal of this writ petition.

15. The Secretary of the 2nd respondent GCDA shall file an Con.Case(C).No.1818 OF 2020 IN WP(C). 6666/2017

additional counter affidavit, explaining the facts and circumstances, with specific reference to Ext.R4(b) communication dated 16.01.2006."

2. The respondent has filed a reply affidavit dated

15.11.2020 in this contempt case.

3. On 18.11.2020, when this contempt case came up for

consideration, the learned counsel for the petitioner submitted that

an application shall be filed to depute an Advocate Commissioner to

conduct a local inspection.

4. On 23.11.2020, after considering the submission made

by the learned counsel on both sides, this Court appointed

Smt.Dona Augustine, a lawyer of this Court, as Advocate

Commissioner, to conduct inspection of the building in question,

with notice to the learned counsel for the petitioners and also to

the learned counsel for the respondent and submit a report before

this Court within two weeks, with specific reference to the matters

enumerated in the work memo to be filed by the learned counsel on

both sides. Pursuant to that order, the report of the Advocate

Commissioner is placed on record on 18.12.2020.

5. After the report of the Advocate Commissioner, the

respondent has filed a written objection/explanation, in the form of Con.Case(C).No.1818 OF 2020 IN WP(C). 6666/2017

an affidavit, on 04.01.2021. Paragraph 4 of that affidavit reads

thus:

"4. We are presently in Dubai since the last few months. I have verified with the caretaker and Project Engineer about the masonry covering of the pipe in the sunshade portion (as could be seen from Annexure C2) and could learn that the pipe was covered subsequent to the order of this Hon'ble Court. This was so done when the said pipe joint got broken/loosened due to the then heavy rains and when water started flowing into the basement floor where the electrical room is established. They had done the plastering over the pipe only to prevent the flooding of water into the basement floor and it was so done by the Project Engineer and the caretakers at their volition to cover the broken pipe with cement and brick pieces. They neither thought nor did intend such work as one tantamount to violation of the court order. They have done so only with the good intention and I came to know about the same (the said works) only after the filing of the contempt of court case. I unconditionally offer my apologies to the said acts of my caretakers and I am prepared to restore the anterior position of the pipe after removing the masonry work, which is only of a length of about two meters."

6. Heard the learned counsel for the petitioner, learned

counsel for the respondent and also the learned Advocate

Commissioner.

7. Having considered the submissions made by the learned Con.Case(C).No.1818 OF 2020 IN WP(C). 6666/2017

counsel on both sides, this Court finds that in view of the

unconditional apology tendered by the respondent, no further

proceedings need be taken in this contempt case, since the writ

petition is still pending consideration.

Therefore, this contempt case is closed recording the

unconditional apology made by the respondent.

Sd/-

                                             ANIL K.NARENDRAN
JV                                                     JUDGE

Con.Case(C).No.1818 OF 2020 IN WP(C). 6666/2017

APPENDIX PETITIONER'S/S EXHIBITS:

ANNEXURE A1 TRUE COPY OF THE ORDER IN W.P.(C) NO.

6666/2017 DATED 25.07.2019 ON THE FILE OF THE HON'BLE HIGH COURT OF KERALA.

ANNEXURE A2 VIDEO RECORDINGS OF THE CONSTRUCTION ACTIVITIES BEING CARRIED OUT IN THE PLOT IN VIOLATION OF ANNEXURE A1 ORDER IN DVD FORMAT.

RESPONDENTS' EXHIBITS:

ANNEXURE B1 PHOTOGRAPHS OF THE BUILDING

ANNEXURE B1(A) PHOTOGRAPHS OF THE BUILDING

ANNEXURE B1(B) PHOTOGRAPHS OF THE BUILDING

ANNEXURE B1(C) PHOTOGRAPHS OF THE BUILDING

ANNEXURE B1(D) PHOTOGRAPHS OF THE BUILDING

ANNEXURE B1(E) PHOTOGRAPHS OF THE BUILDING

ANNEXURE B1(F) PHOTOGRAPHS OF THE BUILDING

ANNEXURE B1(G) PHOTOGRAPHS OF THE BUILDING

ANNEXURE B1(H) PHOTOGRAPHS OF THE BUILDING

ANNEXURE C1 A TRUE COPY OF THE NOTICE DATED 01.12.2020

ANNEXURE C2 TRUE COPY OF THE PHOTOGRAPH OF HTE WORK REFERRED IN ANNEXURE A2

ANNEXURE C3 TRUE COPY OF HTE PHOTOGRAPH SHOWING HTE ENTRANCE TO THE SITE

ANNEXURE C4 COMPACT DISK WITH VIDEOGRAPHS RECORDED DURING INSPECTION

ANNEXURE C5 TRUE COPY OF THE ELECTRICITY BILLS PROVIDED BY THE RESPONDENT Con.Case(C).No.1818 OF 2020 IN WP(C). 6666/2017

ANNEXURE C6 TRUE COPY OF THE PHOTORGRAPH

ANNEXURE C7 TRUE COPY OF THE PHOTOGRAPHS PROVIDED BY THE RESPONDENT