IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 13TH MAY 2010 / 23RD VAISAKHA 1932 Con.Case(C).No. 548 of 2009(S) AGAINST THE INACTION OF THE RESPONDENTS TO COMPLY WITH THE DIRECTION IN THE INTERIM ORDER DATED 26.2.2009 IN W.P.(C) NO.6352 OF 2009. PETITIONER: 7TH PETITIONER ----------------------------- C.S.VARGHESE, AGED 68 YEARS, S/O.SAMUEL, CHARU BHAVAN,KOCHI KARA, ELAMKULAM VILLAGE, KANAYANNOOR TALUK. BY ADV. SRI.BECHU KURIAN THOMAS RESPONDENTS: RESPONDENTS: --------------- 1. SHRI.TOM JOSE, AGED ABOUT 54, CHAIRMAN, KERALA STATE CONSTRUCTION CORPORATION, THIRUVANANTHAPURAM. 2. V.S.THANKAPPAN, AGED 51 YEARS, S/O. V.K. SREEDHARAN, REGIONAL MANAGER, KERALA STATE CONSTRUCTION CORPORATION, CARMEL BUILDING, BANERJI ROAD,COCHIN-18. (RESIDING AT GOVT. QUARTERS, IV/2/8, THRIKKAKARA, KOCHI) 3. P.P.JOSE, PROJECT ENGINEER, KERALA STATE CONSTRUCTION CORPORATION, REGIONAL OFFICE, KOTTAYAM. 4. ASHOK KUMAR SINGH, IAS, AGED 49 YEARS, DISTRICT COLLECTOR, IDUKKI. R1 TO R3 BY ADV. SRI.M.V.THAMBAN GOVERNMENT PLEADER SRI.M.S.BREEZ THIS CONTEMPT OF COURT CASE (CIVIL) HAVING BEEN FINALLY HEARD ON 1/3/2010, THE COURT ON 13/05/2010, DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ CONT. CASE (C) NO. 548 OF 2009 ------------------------------------------------------ Dated this the 13th day of May, 2010 JUDGMENT Petitioner No.7 in W.P.(C) No.6352 of 2009 has filed this Contempt of Court Case alleging that the respondents wilfully and deliberately violated and disobeyed the interim order dated 26.2.2009 passed in the Writ Petition. 2. The interim prayer in the Writ Petition was for an order of injunction restraining respondents 1 and 2 in the Writ Petition or anybody acting under them “from carrying out any work of construction or demolition or destruction over the plaint schedule properties belonging to the plaintiffs (Schedule A to Schedule L as described below) in O.S.No.22/09 on the file of the Munsiff's Court, Peermade pending disposal of the Writ Petition”. The interim order dated 26.2.2009 reads as follows: “Admit. Standing Counsel takes notice for respondents 1 and 2. Government Pleader takes notice for the third respondent. There will be a direction to the respondents not to demolish any buildings or to cut and remove trees or to CONT. CASE (C) NO. 548 OF 2009 :: 2 :: destroy any cultivation in the properties scheduled to the plaint, O.S.No.22/2009, Munsiff's Court, Peerumade, for a period of one week.” The prayer for stopping the construction activities was not granted as per the interim order dated 26.2.2009. It is stated that the interim order was being extended from time to time. 3. Detailed arguments were advanced by either side in the Contempt of Court Case. Pleadings and documents were referred to by the counsel in support of their respective contentions. In the nature of the dispute involved in the case, it is apposite to refer to the contentions raised by the parties. 4. The writ petitioners are nine in number. As stated earlier, the petitioner in the Contempt of Court Case is petitioner No.7 in the Writ Petition. The petitioners and others filed O.S.No.165 of 2006, on the file of the Court of the Munsiff of Peermade, against the State of Kerala, represented by the District Collector, Idukki; the Tahsildar, Peermade; the Village Officer, Kokkayar Village and the Village Officer, Peermade, for a permanent prohibitory injunction restraining CONT. CASE (C) NO. 548 OF 2009 :: 3 :: the defendants from trespassing upon the plaint schedule A to L immovable properties and from evicting the plaintiffs from the properties or from committing any act of waste or mischief in the properties. The plaintiffs claimed that the plaint schedule properties situated in Sy.No.230 of Kokkayar Village and Sy.No.1188 of Peermade Village, shown in the plaint schedule as items A to L, belonged to them. The defendants in the suit entered appearance in the case. However, they did not file written statement in time. Therefore, the trial court proceeded with the suit under Rule 10 of Order VIII of the Code of Civil Procedure. As per the judgment and decree dated 11.10.2007, the suit was decreed and permanent prohibitory injunction was granted in favour of the plaintiffs. 5. In O.S.No.165 of 2006, the Kerala State Construction Corporation or its officers were not parties. Alleging that the officers of the Kerala State Construction Corporation (hereinafter referred to as 'the Corporation') tried to demolish the buildings and started activities for construction of building, O.S.No.22 of 2009 was filed by the writ petitioners and others before the Munsiff's Court, Peermade for a permanent prohibitory injunction. No interim order was granted by the trial court. Thereafter, W.P.(C) No.6352 of 2009 was filed by CONT. CASE (C) NO. 548 OF 2009 :: 4 :: the writ petitioners before this Court for an injunction restraining respondents 1 and 2 in the Writ Petition from carrying out any work of construction or demolition of buildings. The reason stated for filing the Writ Petition was that there was no regular sitting in the Munsiff's Court, Peermade and the charge of the Munsiff was handed over to the Judicial Magistrate of the First Class, Peermade. It was alleged that the judicial officer who was put in additional charge was attending the cases in the Munsiff's Court, Peermade only for a day in a week and, therefore, no effective interim relief could be obtained in O.S.No.22 of 2009. 6. In W.P.(C) No.6352 of 2009, an interim order dated 26.2.2009 was passed. Later, as per the judgment dated 26.8.2009, the Writ Petition was disposed of directing the Munsiff's Court, Peermade to consider I.A.No.98 of 2009 within one month from the date of receipt of a copy of the judgment. The Munsiff's Court, Peermade disposed of I.A.No.98 of 2009, as per the order dated 15.10.2009. The operative portion of the order reads as follows: “In the result, this IA is allowed and interim injunction is ordered restraining the respondents from CONT. CASE (C) NO. 548 OF 2009 :: 5 :: trespassing into the plaint schedule properties lying in Survey No.230 of Kokkayar Village and Survey No.1118 of Peermade Village, from doing any work therein and from interfering with petitioners' peaceful possession and enjoyment of the plaint schedule properties until the disposal of the suit.” (The survey number mentioned as 1118, most probably, appears to be a mistake. There is no case for anybody that Sy.No.1118 is involved. On the other hand, the case of the plaintiffs is that the property of some of them is in Sy.No.1188.) 7. The petitioner alleged that during summer holidays, respondents 1 to 4 in the Contempt of Court Case gave directions for carrying out various works of demolition and construction in the plaint schedule properties. Accordingly, the buildings were demolished and about 40 trees were cut, in violation of the interim order dated 26.2.2009. A building having about 4000 sq.ft. with concrete roofing was constructed in the properties. It is alleged that the petitioner informed the police over phone about the violation of the interim order. Later, the petitioner submitted Annexure A5 letter dated 6.5.2009 to the Sub Inspector of Police, Peermade, requesting to inform the petitioner about the action taken by the Police on the CONT. CASE (C) NO. 548 OF 2009 :: 6 :: basis of the interim order granted by this court. The petitioner also stated in the Contempt of Court Case that a Commissioner was appointed in O.S.No.22 of 2009, who filed Annexure A3 report dated 2.3.2009. It is also stated that execution was taken as E.P.No.11 of 2009 in O.S.No.165 of 2006. In the Execution Proceedings, a Commissioner was appointed, who filed Annexure A4 report dated 9.3.2009. The petitioner also relies on Annexure A6 series of photographs, allegedly showing the property in question and the construction made therein. It is stated that the photographs were taken on 2.3.2009 and 25.5.2009. 8. The first respondent filed an affidavit dated 19.6.2009. The second respondent filed a detailed affidavit dated 16.6.2009 and Annexures R2(a) to R2(n) were produced. The third respondent filed an affidavit dated 16.6.2009. The fourth respondent filed a separate affidavit dated 30.6.2009. 9. The contentions put forward by the respondents, inter alia, are the following: The Corporation is a Company fully owned by the State Government. The Company undertakes construction contracts and other technical services. The Corporation entered into an CONT. CASE (C) NO. 548 OF 2009 :: 7 :: agreement with the Public Works Department on 9.12.2008 for the construction of Model Residential School (Tamil Medium). Possession of an extent of 8.78 acres of land was given to the Corporation. This land includes 6.1 acres in Sy.No.1212/1 and 2.68 acres in Sy.No.1213 in Peermade Village. The land was allotted by the Government for the construction of Model Residential School, as per the Government Order dated 26.5.2005 (Annexure R2(a)). The contract for construction was granted to the Corporation as per the Government Order dated 18.11.2008. It is stated that the construction is confined to three acres out of 6.1 acres of land in Sy.No.1212/1 of Peermade Village. 10. The respondents also contended that the writ petitioners and others were indulging in frivolous litigations. O.S.No.165 of 2006 was filed without impleading the Corporation or any of its officers. The properties involved in O.S.No.165 of 2006 are quite different. The construction activities were not being carried out in the properties involved in O.S.No.165 of 2006. The allegation that the respondents demolished the buildings and cut and removed trees is not correct. There was no building in the property handed over to the Corporation. No trees were also cut from the properties. The CONT. CASE (C) NO. 548 OF 2009 :: 8 :: work was commenced by the Corporation during February, 2009. The Corporation is carrying out the construction in the land allotted by the Government to the Scheduled Castes Development Department. There was no dispute over that land. The land belonged to the Government. As per Annexure R2(h), issued by the District Scheduled Castes Development Officer, it is clear that there was no such dispute. The properties involved in O.S.No.165 of 2006 are in Sy.No.230 of Kokkayar Village and in Sy.No.1188 of Peermade Village, whereas, the construction activities by the Corporation were carried out in Sy.No.1212/1 of Peermade Village. 11. The respondents also contended that the Writ Petition was filed without any bona fides. In the interim order, there was no restriction for construction activities. The respondents were restrained from demolishing buildings and cutting and removing trees from the properties involved in O.S.No.22 of 2009. The respondents have not violated the interim order passed by this Court. They have not demolished any building. They have also not cut or removed any trees in the properties claimed by the plaintiffs in O.S.NO.22 of 2009. In the property in which construction activities were carried out, there were only bushes. Annexures R2(i) to R2 CONT. CASE (C) NO. 548 OF 2009 :: 9 :: (n) photographs will disclose the various stages of clearing the land and starting the construction. It is submitted that the photographs will show that no trees were standing in the properties. The respondents also alleged that Annexure A6 photograph is not genuine and that it is not the property in which the construction is undertaken. In the affidavit filed by the fourth respondent, it is stated that in O.S.No.165 of 2006, there was no reference about Sy.No.1212/1 or Sy.No.1213, where the constructions were made. The petitioner and the other plaintiffs have no right or possession over any land in Sy.Nos.1212/1 and 1213 of Peermade Village. 12. The petitioner filed reply affidavit and produced Annexures A7 to A10 Pattas, certain revenue receipts and a rough sketch. A perusal of Annexures A7 to A10 would show that the properties included therein are in Sy.No.230 of Peruvanthanam Village, Sy.No.230 of Kokkayar Village, Sy.No.1180 of Peermade Village and Sy.No.1188 of Peermade Village. Learned counsel for the petitioner submitted that there are certain mistakes in the Pattas in respect of the survey number and village, and that the identity of the property would not be changed by such mistakes. The petitioner also filed I.A.Nos.40 of 2010 and 75 of 2010 to produce additional documents, CONT. CASE (C) NO. 548 OF 2009 :: 10 :: namely, the judgment in W.P.(C) No.6352 of 2009, the order dated 15.10.2009 in I.A.No.98 of 2009 in O.S.No.22 of 2009 and the commissioner’s report dated 3.8.2009 in E.P.No.11 of 2009. 13. The learned counsel for the petitioner submitted that when there is a discrepancy between the survey number and boundaries, the boundaries will prevail. The identity of the property is to be fixed with reference to the boundaries. The boundaries will make it clear that the respondents constructed the building in the property claimed by the petitioner and others. The respondents had given scant respect to the interim order passed by this Court. 14. The learned counsel for the respondents pointed out that the petitioner and the other plaintiffs have not shown the number of the buildings which were allegedly in existence in the properties. That itself shows that the case put forward by the petitioner is without any bonafides. The learned counsel appearing for the Corporation also pointed out that Annexure R2(g) letter dated 6.4.2009, issued by “Malabar Flora & Fauna Society” to the Managing Director, Kerala Construction Corporation Limited, and Annexure A5 letter sent by the petitioner to the Sub Inspector of CONT. CASE (C) NO. 548 OF 2009 :: 11 :: Police, Peermade are in the same handwriting. Annexure R2(g) shows that the President of Malabar Flora & Fauna Society is none other than the petitioner in the Contempt of Court Case. In the affidavit filed by the second respondent, it is stated that an attempt was made to verify whether there is such a Society as mentioned in Annexure R2(g) and it was found that no such Society is functioning. Annexure R2(g) letter sent by Malabar Flora & Fauna Society shows that the land where the construction was carried out was an ecologically fragile land. However, mention is made about the construction of some houses in the land. On a perusal of Annexures A5 and R2(g), it would appear that the petitioner was trying to put forward even a contention that the land is an ecologically fragile land, to avert construction of any building by the Corporation. 15. In paragraph 13 of the Contempt of Court Case, the petitioner says that the first photograph in Annexure A6 series was taken on 2.3.2009. Paragraph 7 of the Contempt of Court Case indicates that the demolition of the building was made during summer holidays. It is relevant to note that no building is seen in the first photograph in Annexure A6 series. CONT. CASE (C) NO. 548 OF 2009 :: 12 :: 16. It is also relevant to note here that the Contempt of Court Case was filed only by petitioner No.7. He has no case that the Contempt of Court Case was filed on behalf of the other writ petitioners as well. The petitioner in the Contempt of Court Case claims right over the land in Sy.No.230 of Kokkayar Village. The construction activity was being carried out in the land in Sy.No. 1212/1 of Peermade Village. It is also relevant to note that Annexure R4(a) shows that a mahazar was prepared on 30.8.2005, while handing over possession of the land to the Scheduled Castes Development Department. The survey number, extent and boundaries of the land are mentioned in Annexure R4(a). 17. It is relevant to note that Annexure A4 report submitted by the Commissioner in the Execution Proceedings in O.S.No.165 of 2006 indicates that the decree schedule properties could not be properly identified separately. Annexure A3 commission report also is not helpful to fix the identity of the property. 18. On a careful consideration of the facts and circumstances of the case, it is clear that the respondents have not violated the interim order dated 26.2.2009 passed by this Court. Annexure A8 CONT. CASE (C) NO. 548 OF 2009 :: 13 :: order passed by the Munsiff's Court disposing of the application for temporary injunction in O.S.No.22 of 2009 also makes it clear that the injunction was confined to the property in Sy.No.230 of Kokkayar Village and Sy.No.1188 of Peermade Village. The construction was made, not in these items of properties, but in a different property having different survey number and situated in a different village. I am fully convinced that there was no violation or disobedience of the order passed by this Court. The Contempt of Court Case is without any bona fides and it is liable to be dismissed. 19. It is made clear that the observations and findings made hereinabove are only for the purpose of disposing of the Contempt of Court Case and that those observations and findings would not affect the contentions of the plaintiffs in O.S. No.22 of 2009, Munsiff’s Court, Peermade. Accordingly, the Contempt of Court Case is dismissed. (K.T.SANKARAN) Judge ahz/