IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE FRIDAY, THE 24TH APRIL 2009 / 4TH VAISAKHA 1931 Con.Case(C).No. 630 of 2008(S) ------------------------------ ( FROM INTERIM ORDER DATED 28-3-08 IN W.P.C.NO.10591/2008) PETITIONER(S): PETITIONER ------------------------- K.SUDARSANAN, AGED 70 YEARS, S/O.KESAVANKUTTY, RESIDING AT KINATTUVILAKATHU VEEDU, TC NO. 31/705, PETTAH, THIRUVANANTHAPURAM. BY ADV. SRI.J.HARIKUMAR SRI.HARIKUMAR.S. RESPONDENT(S): --------------- 1. JOHN K.GEORGE, (AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER ) SECRETARY, CORPORATION OF THIRUVANANTHAPURAM, PALAYAM, THIRUVANANTHAPURAM. 2. UMA B.NAIR, (AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER), REVENUE OFFICER, THIRUVANANTHAPURAM CITY CORPORATION, PALAYAM, THIRUVANANTHAPURAM. 3. SAJAY KUMAR, (AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER) SOBHA NIVAS, MADHU BRIDGE, KARUMAM, THIRUVALLAM, THIRUVANANTHAPURAM. ADV. SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE FOR R1 & 2 SRI.P.K.MANOJKUMAR FOR R1 & 2 SRI.SANTHAN V.NAIR FOR R3 THIS CONTEMPT OF COURT CASE (CIVIL) HAVING COME UP FOR ADMISSION ON 24/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE, J. - - - - - - - - - - - - - - - - - - - - - Contempt of Court Case No.630/2008 in W.P.(c).No. 10591 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of April , 2009 JUDGMENT The petitioner in W.P.(C)No. 10591/2008 is the petitioner. The respondent No.1 is the Secretary of the Thiruvananthapuram Corporation who is the first respondent is the writ petition. Respondents 2 and 3 are respectively respondents 3 and 2 in the writ petition namely Revenue Officer of Thiruvananthapuram City Corporation and a private party. 2. The accusation against the respondents is that they are guilty of willful disobedience of Annexures A interim order passed by this court on 28/03/2008 in the writ petition. It is submitted that copy of Annexure A order dated 28-03-2008 was submitted in the office of respondents 1 and 2 on 29/03/2008. It is pointed out that on the terms of Annexure A, order appointing the third respondent herein as the licencee of the Thiruvananthapuram Corporation will not be issued until further orders from this court, if the Corporation has not so far CCC.No. 630/08 2 issued appointing orders to him. It is also ordered that as regards collection of fees in the Petta Market, status quo as obtaining today will be maintained until further orders. According to the petitioner till Annexure A order was issued by this court, respondents 1 and 2 had not issued any order appointing the third respondent as the licencee to collect fees from Petta market. It is also pointed out that since the petitioner was the licencee to collect fees from Petta Market till 01/04/2008, respondents 1 and 2 could issue orders appointing the third respondent only with effect from 01/04/2008. The allegation is that to defeat the ends of justice, respondents 1 and 2 conspired with the third respondent to appoint the third respondent as the licencee for collecting fees from Petta Market from 01/04/2008 and prevented the petitioner from collecting the fees from the Petta Market from 01/04/2008 onwards. The above action of the respondents, it is alleged, amounts to willful disobedience of Annexure A order. It is further alleged that the respondents have prevented the petitioner from collecting the fees from 01/04/2008 and have allowed the third respondent to collect fees with the assistance of the Sub Inspector of Police, Petta . The petitioner CCC.No. 630/08 3 filed Annexure C petition dated 30-03-2008 before the Sub Inspector of Police, Petta seeking police help to allow him to continue to collect the fees in Petta market. Annexure D is copy of the receipt issued by the Petta Police station against Annexure C. 3. The second respondent - Revenue Officer of the Corporation has filed a counter affidavit. It is contended therein that the auction was confirmed in favour of the third respondent on 28-03-2008 and the third respondent deposited the first instalment of Rs. 1,42,900/- in the Treasury of the Corporation in the morning of 29/03/2008. It is stated that no order as such has been passed by the Revenue Officer or the first respondent- Secretary of the Corporation appointing the third respondent to collect the fees from Petta Market from 01/04/2008 as alleged in the Contempt of Court Case. It is claimed that the second respondent has not done anything preventing the petitioner from collecting the fees from Petta market with the assistance of the Petta police. The Sub Inspector of Petta submitted a report dated 01/04/2008 before the Secretary of the Corporation regarding the complaint received by him from the petitioner regarding CCC.No. 630/08 4 the dispute between the petitioner and the third respondent over collection of fees from Petta market. On the basis of the said report, a letter dated 01/04/2008 was issued by the Secretary of the Corporation to the Sub Inspector of Police. It is asserted in the counter affidavit that copy of Annexure A order was served on the second respondent by the petitioner personally only on 2.00 p.m. of 29/03/2008. Immediately on receipt of Annexure A order, the second respondent made necessary endorsement on the copy of the order and the order was directed to be placed in the file and the second respondent also informed the Secretary of the Corporation about the interim order. The first respondent Sri.John.K.George has also filed a detailed counter affidavit. It is stated therein that the Finance Committee of the Corporation is the authority to receive the quotation and tenders, if submitted to the Corporation and since only one quotation was received by the Corporation in the auction of the right to collect fees from Petta Market, re-auction was ordered. Re-auction concerning Petta Market was held on 16/02/2008 . In that auction, the petitioner as well as the third respondent participated. Since the third respondent's quotation CCC.No. 630/08 5 was for an higher amount, the finance committee in its meeting held on 06/03/2008 decided to accept the offer of the third respondent. Pursuant to the decision of the finance committee, the third respondent produced solvency for Rs. 5 lakhs for the auction relating to Palayam market as well as the Petta Market. It was decided that the deficit solvency - an amount of Rs. 1,42,900/- should be paid by the third respondent as the first instalment. The petitioner challenged the grant of the right to collect fees from Petta Market in favour of the third respondent before the Honourable Ombudsman in O.P.No. 108/2008. The O.P. was dismissed by the Ombudsman wide Ext.P4 order. Pursuant to Ext.P4 order, on 20/03/2008, the third respondent was given intimation to deposit the bid amount and in the morning of 29/03/2008, the third respondent deposited the first instalment of Rs. 1,42,900/- towards the bid amount in the Corporation Treasury. 4. The first respondent submits in the counter affidavit that copy of Annexure A order was received in the office of the Corporation only at 2.00 p.m. on 29/03/2008. On receiving copy of Annexure A oder, Corporation office sent communication to the counsel appearing CCC.No. 630/08 6 for the Corporation informing him that the status quo order issued by the court could not be complied with by the Corporation. On the basis of the said letter, on 07/04/2008 statement was filed in W.P.(C)No. 10591/08 bringing to the notice of the court that auction has been confirmed in favour of the third respondent on 28/03/2008 itself and that the third respondent had deposited the first instalment amount in the morning of 29/03/2008 even before copy of Annexure A order was served on the Corporation. Counter affidavit further submits that since the Financial year was coming to a close and there was no time for ordering a re-auction, the offer made by the third respondent was accepted on the basis of the decision of the Finance Committee by accepting deficit amount in the Solvency given by the third respondent as first instalment. The counter affidavit goes on to submit that the first respondent also has not passed any orders concerning the auction of the right to collect fees from Petta Market after the receipt of Annexure A order by the office of the Corporation. 5. The third respondent has also filed counter affidavit. It is stated therein that without the knowledge of issuance of the order of CCC.No. 630/08 7 status quo by this court, the first respondent has issued the order to the third respondent to collect fees from the Petta market. But on coming to know about the order of this court, the third respondent has not implemented the same. It is the petitioner himself who is even now collecting the fees from Petta Market on the strength of the above order, though the right given by the Corporation to him to collect fees from Petta Market ended on 30/03/2008. The third respondent submits that though he is not able to collect fees in the market, he has been issued instructions by the Corporation to remit instalment for the bid amount and he is complying with those instructions. 6. I have heard the submissions of Sri.J.Harikumar, learned counsel for the petitioner and Sri.N.Nandakumara Menon, learned senior counsel for the Thiruvananthapuram Corporation and Sri.Santha.V.Nair, learned counsel for the third respondent. The Judge's papers relating to W.P.(C)No. 10591/08 were incorporated and I have gone through the same. Sri.J.Harikumar would forcefully submit that respondents 1 and 2 were having information regarding Annexure A order since it is with notice to the standing counsel for the CCC.No. 630/08 8 Corporation that Annexure A order was passed by this court. The confirmation of the auction in favour of the third respondent virtually amounts to violation of Annexure A order, according to the learned counsel. Sri. N. Nandakumara Menon, learned senior counsel would submit that his office had not given any intimation to the Thiruvananthapuram Corporation regarding the passage of Annexure A order on the 28th or 29th of March 2008. Learned senior counsel would make further submissions on the basis of the counter affidavits submitted by respondents 1 and 2. Sri.Santhan.V. Nair also would make submissions on the basis of the counter affidavit submitted by the third respondent. 7. Having considered the submissions and having gone through the pleadings and the available materials, I feel that this is a case where benefit of doubt should be given to the respondents on the question as to whether before 2.00 p.m. on 29/03/2008 Annexure A order had been brought to the notice of the Corporation or the respondents. In fact in the first instance, I had directed the second respondent - Revenue Officer to be present before the court in person CCC.No. 630/08 9 and to a query she answered that respondents 1 and 2 came to have information regarding Annexure A order only on 29/03/2008 at 2.00 p.m. Since her version appeared to be credible, I exempted her as well as the third respondent in the Contempt Case from personally appearing before this court. Giving the benefit of doubt to respondents 1 and 2, I drop the Contempt of Court Case as against them. As for the third respondent, I am convinced that he is not at all guilty of any dis- obedience of Annexure A order. The Contempt of Court Case will stand dismissed as against him. Post the writ petition before the appropriate Bench. PIUS.C.KURIAKOSE JUDGE sv. CCC.No. 630/08 10