Kerala High Court

Sabu Cherian vs Biswas Mehta on 14 June, 2022

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
              THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                                     &
                  THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
          Tuesday, the 14th day of June 2022 / 24th Jyaishta, 1944
    IA.NO.1/2022 IN CONTEMPT CASE(C) NO. 1969 OF 2019(S) IN WA 947/2019

PETITIONER/PETITIONER:


     SABU CHERIAN,S/O. M.P. CHERIAN,AGED 53 YEARS, MANAGING DIRECTOR,
     MARYMATHA INFRASTRUCTURE (P) LTD. FORMERLY MARYMATHA CONSTRUCTION
     COMPANY, ARAKKUZHA ROAD, MUVATTUPUZHA, ERNAKULAM-686 661


RESPONDENTS/RESPONDENTS/ADDITIONAL 3RD RESPONDENT SOUGHT TO BE IMPLEADED:


  1. BISWAS MEHTA IAS, PRINCIPAL SECRETARY, DEPARTMENT OF WATER
     RESOURCES, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001
  2. ELIZABETH KORA,SUPERINTENDING ENGINEER, IRRIGATION CENTRAL CIRCLE,
     THRISSUR-680 003
  3. SMT.SANDHYA, EXECUTIVE ENGINEER, IRRIGATION DIVISION OFFICE,
     KAKKANAD, ERNAKULAM, PIN-682030


     Application praying that in the circumstances stated in the
affidavit filed therewith the High Court be pleased to implead the 3rd
respondent as additional 3rd respondent in the above Contempt.


     This Application coming on for orders upon perusing the application
and the affidavit filed in support thereof, and this Court's order dated
03/03/2020 and upon hearing the arguments of Adv.P.SHANES METHAR,
Advocates for the petitioner in IA/COC and of Sri.K.V.Manoj Kumar, SENIOR
GOVERNMENT PLEADER Advocates for the respondents in IA/COC, the court
passed the following:

                                                                 P.T.O
          S. MANIKUMAR, C. J. & SHAJI P. CHALY, J.
        ======================================
                   I. A. Nos. 1 & 2 of 2022
                                in
               Con. Case (C) No. 1969 of 2019
        ======================================
              Dated this the 14th day of June, 2022

                             ORDER

S. Manikumar, C. J.

Earlier, during the course of contempt proceedings, we recorded

the rival submission of the parties that only a partial amount has been

sanctioned, which does not amount to substantial compliance of the

judgment, and the submission of the learned counsel for the State that

the entire amount due and payable has been paid. We permitted the

petitioner to obtain certain documents regarding the dispute on the

quantum of amount paid.

2. For brevity, orders passed on 17.12.2019, 13.01.2020 and

29.01.2020 in Con. Case (C) No. 1969 of 2019, are reproduced:-

"Though Mr. P.Shanes Methar, learned counsel for the Contempt petitioner submitted that final bills have been submitted about six months ago, but payments have not been made, Mr.K.V.Manoj Kumar, learned Government Pleader submitted that final bills prepared by the Assistant Executive I. A. Nos. 1 & 2 of 2022 in Con. Case (C) No. 1969 of 2019

Engineer has to be finalised and Contempt petitioner executed an agreement early in November 2019 and for the other reasons stated in the supporting affidavit, submitted that there was no wilful and deliberate disobedience of the judgment made in W.A.No.947 of 2019 dated 11.7.2019. Taking note of the above, we direct the amount due and payable to the Contempt petitioner to be settled in full on or before 6.1.2020, failing which, the respondents are directed to appear as to why this court should not take further action under the provisions of the Contempt of Courts Act, 1971."

"Affidavit stated to have been filed on 10.1.2020 in response to Contempt Case (C)No.1969 of 2019 has not reached the court. However, Mr.P.Shanes Methar, learned counsel for the petitioner submitted that only partial amount has been sanctioned and that does not amount to substantial compliance of the judgment in W.A.No.947 of 2019 dated 11.7.2019."

"Though Mr.K.V.Manoj Kumar, learned Government Pleader submitted that judgment in W.A.No.947 of 2019 dated 11.07.2019 has been complied with letter and spirit and that a sum of Rs. 2,60,37,745/- has been paid, Mr.Shanes Methar, learned counsel for the petitioner submitted that as per Annexure- F, the amount due and payable is Rs. 4,97,18,300/-.

Learned counsel for the petitioner further submitted that he has sought for information under Right to Information Act and requires time to produce documents with regard to the dispute with on the quantum of amount."

I. A. Nos. 1 & 2 of 2022 in Con. Case (C) No. 1969 of 2019

3. Contending inter alia that certain amounts are still due and

payable by the respondents, which fact is discernible from the letter of

the Assistant Executive Engineer, Additional Irrigation Sub Division,

Aluva, addressed to the Executive Engineer, Irrigation Division,

Ernakulam, and that the addresser is a necessary and proper party for

effective adjudication in this contempt petition, I. A. No. 1 of 2022 has

been filed to implead her as additional 3 rd respondent in Con. Case (C)

No. 1969 of 2019.

4. I. A. No. 2 of 2022 is filed to accept the documents filed along

with I. A. No. 1 of 2022.

5. Reasons assigned in the supporting affidavit for the abovesaid

applications are as hereunder:-

"2. It is submitted that the final bill was kept idle at the office of the Executive Engineer, Irrigation Division Kakkanad. The conduct of the Executive Engineer was deliberate with intent to bring disrepute to the authority of this Hon'ble Court. Therefore the presence of Smt. Sandhya, Executive Engineer, Irrigation Division Office, Kakkanad, Ernakulam, Pin 682030, is necessary for adjudicating the contempt of court case (civil) and her presence in the party array is necessary for deciding the lis.

Hence it is humbly prayed that this Hon'ble Court may be pleased to implead the 3rd respondent as additional 3rd respondent in the I. A. Nos. 1 & 2 of 2022 in Con. Case (C) No. 1969 of 2019

above case. It is for this purpose that the accompanying petition is filed and the same may kindly be allowed in the interest of justice, otherwise I will be put to irreparable injury and hardship."

"2. The 1" respondent filed an affidavit dated 08.01.2020, that the directions in Annexure A has been complied with. The averments in the said affidavit are false, only the amount covered by the part bill was released to me. Through I.A No. 1/2020, I have placed on record that the directions in Annexure A is not yet complied by the respondents. The final bill has been prepared and it is kept idle in the office of the Executive Engineer, Irrigation Division Kakkanad.

3. The 1st respondent has sworn a false affidavit before this Hon'ble court. On 10.11.2020 a meeting of the technical committee of Pathalam Regulator cum bridge was held in the chamber of Chief Engineer, Irrigation and Administration, wherein it was decided to prepare the final bill of the subject work. A true copy of the minutes of the meeting of the technical committee of Pathalam Regulator cum bridge held in the chamber of Chief Engineer, Irrigation and Administration dated 10.11.2020 is produced and marked as Annexure I. In tune with the decision in Annexure I, M A College of Engineering Kothamangalam submitted a report on the stability of the Regulator cum bridge. A true copy of the report of MA College of Engineering Kothamangalam is produced and marked as Annexure J. After Annexure J, detailed work slip/ final bill was prepared, a true copy of the Work slip pertaining to NABARD I. A. Nos. 1 & 2 of 2022 in Con. Case (C) No. 1969 of 2019

RIDF XVII-Construction of Regulator cum Bridge at Pathalam across Periyar river in Ernakulam District duly certified by the Assistant engineer and Assistant Executive Engineer is produced and marked as Annexure K. On 02.08.2022, the Assistant Executive Engineer vide letter No. A1-1/2007/Vol(V) addressed the Executive engineer to approve the work slip. A true copy of the letter No. A1-1/2007/Vol(V) dated 02.08.2022 of the Assistant Executive Engineer addressed to the Executive Engineer is produced and marked as Annexure L. Annexure I to L are highly necessary to decide the contempt of court case. Those documents were not in my possession or power at the time of filing the above contempt case.

4. It is therefore necessary that Annexure-I to Annexure L may kindly be accepted and marked as additional documents on behalf of the petitioner in the contempt case. In view of the urgency in the matter, it is also necessary that the above case may be posted at the earliest so that the same could be disposed of without any further delay. This affidavit is therefore filed in common to the petition seeking production and acceptance of additional documents of the above case and the same may kindly be allowed in the interest of justice."

6. We have gone through the reasons assigned and perused the

documents. We are satisfied with the reasons for the prayers stated

supra.

7. I. A. No. 1 of 2022 is ordered.

I. A. Nos. 1 & 2 of 2022 in Con. Case (C) No. 1969 of 2019

8. Smt. Sandhya, Executive Engineer, Irrigation Division Office,

Kakkanad, Ernakulam, Pin - 682030, is impleaded as additional 3 rd

respondent in the contempt petition.

9. Mr. K. V. Manoj Kumar, learned Senior Government Pleader,

takes notice on behalf of the impleaded party.

10. I. A. No. 2 of 2022 is ordered.

11. Additional documents Annexure I to Annexure L are taken on