Kerala High Court
K.A. Geevarghese vs T.G. Sen on 3 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 03RD DAY OF MARCH 2021 / 12TH PHALGUNA, 1942
Con.Case(C).No.956 OF 2018(S) IN WP(C). 36675/2017
AGAINST THE JUDGMENT IN WPC 36675/2017 DATED 29-01-2018 OF HIGH COURT
OF KERALA
PETITIONER/PETITIONER:
K.A. GEEVARGHESE
S/O ABRAHAM, KOCHAYATHU - SANTHOSH BHAVANAM,
KALIPARAMBIL THEKKETHIL, KUNNAM MURI,THAZHAKKARA
VILLAGE, MAVELIKKARA, ALAPPUZHA DISTRICT.
BY ADV. SRI.V.B.NARAYANAN
RESPONDENTS/RESPONDENT NOS. 2 & 3 IN THE WRIT PETITION:
1 T.G. SEN, (AGE & FATHER'S NAME NOT KNOWN TO THE
PETITIONER)
CHIEF ENGINEER, PROJECT II, IRRIGATION PREMISES, MUSEUM
JUNCTION, THIRUVANANTHAPURAM 695 001.
2 MINI RAJU SEBASTIAN,
(AGE & FATHER'S NAME NOT KNOWN TO THE PETITIONER)
EXECUTIVE ENGINEER, PAMPA IRRIGATION PROJECT DIVISION,
CHENGANOOR- 689 121.
R1-2 BY SRI. SURIN GEORGE IPE, SR. GOVERNMENT PLEADER
THIS CONTEMPT OF COURT CASE (CIVIL) HAVING BEEN FINALLY HEARD ON
03.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
C.O.(C) No. 956/2018
in W.P.(C) No. 36675/2017 :2:
Dated this the 3rd day of March, 2021.
JUDGMENT
This Contempt Case is filed complaining that the directives
contained in the judgment dated 29.01.2018 in W.P.(C) No. 36675 of
2017 is not complied with. The observations and directions contained
in the said judgment reads thus:
"Petitioner owns and possesses 16 Ares of property along with
structures situated therein, comprised in Re-sy No.459/10 in Kallimel
ward of Vettiyar Village, Mavelikkara Thaluk, by virtue of Sale Deed
No.628/1968 dated 12.2.1968 of SRO, Mavelikkara. A portion of
petitioner's property was acquired by Government for P.I.P sub-canal,
and as a result, the approach road to the petitioner's property was cut.
According to the petitioner, in spite of the earnest efforts of the
petitioner, the subject matter is not attaining finality even though
various communications are issued by the respective statutory
authority interdepartmentally. Any how Ext.P13 is a communication
dated 25.10.2017 addressed by the Chief Engineer to the Government
Secretary, Water Resource Department with a copy to the petitioner,
from which it is found that, necessary alteration can be carried out
after securing necessary permission so as to ventilate the grievances of
the petitioner. According to the petitioner, petitioner would be
satisfied, if a direction is issued to attain finality to the proceedings
initiated pursuant to the complaint made by the petitioner.
2. Having heard learned counsel for petitioner and learned
C.O.(C) No. 956/2018
Government Pleader, there will be a direction to respondents 2 and 3 to
take a decision in the subject matter relating to Ext.P13 order passed
by the Chief Engineer dated 25.10.2017 and attain finality within two
months from the from the date of receipt of a copy of this judgment.
Writ petition is disposed of accordingly."
2. According to the learned counsel for the petitioner, no action
was initiated to comply with the directions and therefore, there is wilful
disobedience and deliberate attempt on the part of the respondents in
not complying with the directions contained in the judgment, which
persuaded the petitioner to file this Contempt Case.
3. An affidavit is filed by the second respondent stating that in
compliance with the directions, steps were taken by the second
respondent to remove the constructions put up by the party
respondents in the writ petition. However, before the completion of
the demolition, Sri. Sam John, who had made the illegal construction
along with his brothers, has approached this Court and secured an
interim order in W.P.(C) No. 20306 of 2018 and therefore, rest of the
works could not be completed. The relevant portion of the affidavit
submitted by the second respondent in that regard would be
worthwhile to be extracted.
"4. It is submitted that, in view of the adamant stand of the
parties who had made illegal construction. On 13.06.2018, the
C.O.(C) No. 956/2018
Executive Engineer and his officers visited the site and demolished,
hand rails and approach road of the illegally constructed slab. As it
was found that, the slab portion cannot be demolished even using of
JCB and same can be demolished only by using JCB with breaker.
Demolishing of the entire structure cannot be carried out on
13.06.2018. It is submitted that by the demolition of hand rails and
approaches though not fully access was made available to the
property of the petitioner.
5. It is submitted that as the work of demolishing using JCB
with breaker is expensive estimate was prepared by the Executive
Engineer and submitted for approval to the first respondent as per
letter dated 09.03.2018.
6. It is submitted that in the meanwhile this respondent
received the copy of the interim order dated 20.06.2018 issued by
this Hon'ble Court in W.P.(C) No. 20306 of 2018 filed by the above
said Sam John who had made the illegal construction along with his
brothers, wherein this Hon'ble Court ordered to maintain status quo
with respect to concrete slab put by the petitioner across PIP canal
for a period of one month. True copy of the interim order dated
20.06.2018 is produced herewith and marked as Annexure R2(b). In
view of the interim order issued by this Hon'ble Court the
respondents could not further proceed with the demolition of the
slab. Immediately, steps has been taken to get that interim order
vacated by way of filing counter affidavit dated 30.06.2018. It is
further submitted that an application to vacate the interim order in
W.P.(C) No. 20306 of 2018 is also filed."
C.O.(C) No. 956/2018
4. A reply affidavit is filed by the petitioner reiterating the stand
adopted in the contempt case.
5. However, today, when the matter is taken up, it is pointed out
that the interim order granted by this Court in the writ petition was
vacated by this Court.
6. I have heard the respective counsel across the Bar, and
perused the pleadings and materials on record.
7. The discussion of facts made above would make it clear that
the second respondent has proceeded to demolish the constructions
put up by the party respondent in the writ petition and some of the
constructions were removed. However, due to certain technical snag,
rest of the constructions could not be carried out and in the
meanwhile, the aforesaid Sam John approached this Court in the writ
petition specified above and secured an interim order. Even though it
is an admitted fact that the interim order granted by this Court was
vacated, the writ petition is still pending consideration and it was also
pointed out that in view of the intention expressed by the parties, the
matter was referred for mediation also. However, it could not be
settled by the Mediator.
8. Taking into account all the above aspects and in view of the
pendency of the writ petition challenging the action taken by the
C.O.(C) No. 956/2018
second respondent, I am of the considered opinion that there was no
deliberate attempt on the part of the second respondent, contumacious
in nature, so as to proceed with under the Contempt of Courts Act,
1971 and the Rules thereto.
9. Accordingly, this Contempt Case is closed, leaving open the
liberty of the parties to take up all the contentions in the pending writ
petition specified above.
Registry is directed to post the writ petition as per roster.
sd/-
SHAJI P. CHALY,
JUDGE.
Rv
