Kerala High Court
Confederation Of Consumer Vigilance ... vs B.Jayaram on 29 June, 2006
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
MONDAY, THE 24TH DAY OF MARCH 2014/3RD CHAITHRA, 1936
CON.CASE(C).NO. 348 OF 2008 (S)
---------------------------------------------
[AGAINST THE JUDGMENT IN W.P.(C).NO.12396/2006 DATED 29-06-2006
OF THIS HON'BLE COURT]
...............
PETITIONER/PETITIONER:
--------------------------------------
CONFEDERATION OF CONSUMER VIGILANCE CENTRE,
SREEKOVIL, KODUNGANOOR P.O.,
THIRUVANANTHAPURAM,
REPRESENTED BY ITS GENERAL SECRETARY,A. AYYAPPAN NAIR.
BY ADVS.SRI.BLAZE K.JOSE,
SRI.SUNIL KUMAR.K.K.(IDUKKI).
RESPONDENTS/RESPONDENTS:
-----------------------------------------------
1. B.JAYARAM, AGED ABOUT 45 YEARS,
FATHER'S NAME NOT KNOWN TO THE PETITIONER,
EXECUTIVE ENGINEER, MINOR IRRIGATION,
THIRUVANANTHAPURAM.
2. CHERIYAN P.MATHEW,
AGE ABOUT 45 YEARS,
FATHER'S NAME NOT KNOWN TO THE PETITIONER,
EXECUTIVE ENGINEER, MINOR IRRIGATION,
THIRUVANANTHAPURAM, NOW WORKING AS EXECUTIVE ENGINEER,
MINOR IRRIGATION, PATHANAMTHITTA.
R1 BY SRI.T.A.SHAJI, SENIOR ADVOCATE,
ADVS. SRI.PETER JOSE CHRISTO,
SRI.G.BIJU,
R2 BY ADVS. SRI.JACOB MATHEW MANALIL,
SMT.P.PRIYA
SPL.GOVT. PLEADER SRI. C.S. MANILAL.
THIS CONTEMPT OF COURT CASE (CIVIL) HAVING BEEN FINALLY
HEARD ON 05-02-2014, THE COURT ON 24-03-2014 DELIVERED
THE FOLLOWING:
Prv.
CON. CASE (C).NO.348/2008-S:
APPENDIX
PETITIONER'S ANNEXURES & EXHIBITS:
ANNEXURE - I: A TRUE COPY OF THE STATEMENT FILE BEFORE THIS
HON'BLE COURT BY THE SECOND RESPONDENT
DTD. 24/06/06.
ANNEXURE - II: A TRUE COPY OF THE JUDGMENT IN W.P.(C).NO.12396/06
DTD. 29/06/06.
ANNEXURE - III: A TRUE COPY OF NOTICE DTD. 11/12/06.
ANNEXURE - III (A): ENGLISH TRANSLATION OF NOTICE DTD. 11/12/06.
ANNEXURE - IV: A TRUE COPY OF THE JUDGMENT IN CONT. CASE (C).NO.88
OF 2007 DTD. 22/01/2007.
ANNEXURE-V: A TRUE COPY OF THE JUDGMENT IN W.P.(C).NO.29072 OF 2006
BEFORE THE HON'BLE HIGH COURT OF KERALA
DTD. 20/11/2006.
ANNEXURE-VI: TRUE COPY OF THE ORDER IN R.P.NO........ OF 2008
(UN UNMBERED) IN W.P.(C).NO.12396 OF 2006 OF THE HON'BLE
HIGH COURT OF KERALA DTD. 14/10/2008.
ANNEXURE-VII: A TRUE COPY OF THE JUDGMENT IN W.P.(C). NO.24692 OF 2008
OF THE HON'BLE HIGH COURT OF KERALA DTD. 04/12/2008.
ANNEXURE-VIII: A TRUE COPY OF THE ORDER IN SLP (CIVIL) NO.17484/2008 OF
THE HON'BLE SUPREME COURT OF INDIA DTD. 13/07/2009.
ANNEXURE-IX: A TRUE COPY OF THE ORDER IN C.C. NO.11526 OF 2009 IN
SLP (CIVIL).NO......./2009 OF THE HON'BLE SUPREME COURT
OF INDIA DTD. 21/08/2009.
ANNEXURE-X: A TRUE COPY OF THE ORDER IN R.P.NO. 2 OF 2010 IN
W.P.(C).NO.24692 OF 2008 OF THE HON'BLE HIGH COURT OF
KERALA DTD. 05/01/2010.
ANNEXURE-XI: A TRUE COPY OF THE ORDER IN C.C. NO.7486/2010 IN
SLP (CIVIL). NO........./2010 BEFORE THE HON'BLE SUPREME-
COURT OF INDIA DTD. 12/05/2010.
ANNEXURE-XII: A TRUE COPY OF THE PLAINT IN O.S. 1250 OF 2010 BEFORE
THE HON'BLE MUNSIFF'S COURT, THIRUVANANTHAPURAM.
ANNEXURE-XIII: A TRUE COPY OF THE PETITION FOR REVIEW THE ORDER OF
INJUNCTION IN O.S. NO.1250/2010 BEFORE THE HON'BLE
MUNSIFF'S COURT, THIRUVANANTHAPURAM.
ANNEXURE-XIV: A TRUE COPY OF THE ORDER IN I.A. NO.5575/10 IN
O.S. NO.1250/10 OF THE HON'BLE PRINCIPAL MUNSIFF'S -
COURT, THIRUVANANTHAPURAM.
Prv.
CON. CASE (C).NO.348/2008-S:
EXT.P.1: TRUE COPY OF THE STATEMENT FILED BEFORE THE HON'BLE
HIGH COURT BY THE EXECUTIVE ENGINEER DTD. 24/06/2006.
EXT.P.2: TRUE COPY OF THE JUDGMENT IN W.P.(C).NO.12396/2006
DTD. 29/06/2006.
EXT.P.3: TRUE COPY OF THE NOTICE DTD. 11/12/2006 SENT BY THE
PETITIONER TO THE EXECUTIVE ENGINEER.
EXT.P.4: TRUE COPY OF THE JUDGMENT IN C.O.C. NO.88/2007 DTD. 22/01/2007.
EXT.P.5: CERTIFIED COPY OF THE JUDGMENT IN W.P.(C).NO.29072/2006
DTD. 20/11/2006.
EXT.P.6: CERTIFIED COPY OF THE JUDGMENT IN SLP(C).NO.17484/2008
DTD. 13/07/2009.
EXT.P.7: CERTIFIED COPY OF THE JUDGMENT IN W.P.(C).NO.24692/2008
DTD. 04/12/2008.
EXT.P.8: CERTIFIED COPY OF THE JUDGMENT IN C.C. 11526/2009
DTD. 21/08/2009.
EXT.P.9: CERTIFIED COPY OF THE ORDER IN REVIEW PETITION 2/2010
DTD. 05/01/2010.
EXT.P.10: CERTIFIED COPY OF THE ORDER IN C.C. 7486/2010 OF THE HON'BLE
SUPREME COURT DTD. 12/05/2010.
EXT.P.11: CERTIFIED COPY OF THE ORDER IN I.A. 5575/2010 DTD. 12/10/2010 OF
THE MUNSIFF COURT, THIRUVANANTHAPURAM.
EXT.P.12: CERTIFIED COPY OF THE ORDER IN CMA.NO.75/2010 OF THE
ADDITIONAL DISTRICT COURT, THIRUVANANTHAPURAM.
EXT.P.13: TRUE COPY OF THE COMMUNICATION FROM THE SUB INSPECTOR OF
POLICE, PEROORKADA.
EXT.P.14: TRUE COPY OF THE GOVERNMENT LETTER DTD. 24/07/2010.
EXT.P.15: TRUE COPY OF ORDER DTD. 15/09/2006.
EXT.P.16: TRUE COPY OF ORDER DTD. 06/03/2007.
EXT.P.17: TRUE COPY OF ORDER DTD. 11/03/2008.
EXT.P.18: TRUE COPY OF ORDER DTD. 12/08/2008.
EXT.P.19: TRUE COPY OF REQUEST DTD. 23/06/2012.
EXT.P.20: TRUE COPY OF APPLICATION DTD. 31/01/2013.
EXT.P.21: TRUE COPY OF LETTER DTD. 25/09/2013 OF THE EXECUTIVE
ENGINEER.
EXT.P.22: TRUE COPY OF SCHEDULE OF WORK WITH ESTIMATE.
EXT.P.23: TRUE COPY OF THE REQUEST ADDRESSED TO SUPERINTENDING
ENGINEER DTD. 05/08/2010.
Prv.
CON. CASE (C).NO.348/2008-S:
RESPONDENTS' ANNEXURES & EXHIBITS:
ANNEXURE-I: TRUE COPY OF THE LETTER DTD. 22/11/2006 WITH
TRANSLATION.
ANNEXURE-II: TRUE COPY OF THE LETTER DTD. 12/12/2006.
ANNEXURE-III: TRUE COPY OF THE LETTER DTD. 19/01/2007.
ANNEXURE-IV: TRUE COPY OF THE LETTER DTD. 19/01/2007 WITH
TRANSLATION.
ANNEXURE-V: TRUE COPY OF THE LETTER DTD. 21/02/2007.
ANNEXURE-VI: TRUE COPY OF THE NO.E2 (D1) 2724/04 DTD. 06/03/2007.
ANNEXURE-VII: TRUE COPY OF THE NOTICE NO.E2 (D1) 2724/04
DTD. 10/04/2007 TO THE CONTRACTOR.
ANNEXURE-VIII: TRUE COPY OF THE LETTER DTD. 16/04/2007.
ANNEXURE-IX: TRUE COPY OF THE LETTER DTD. 16/04/2007 WITH
TRANSLATION.
ANNEXURE-X: TRUE COPY OF THE LETTER DTD. 30/06/2007.
ANNEXURE-XI: TRUE COPY OF THE D.O. LETTER NO.E2 (D1) 2724/04
DTD. 26/11/2007 TO THE ASSISTANT EXECUTIVE ENGINEER.
ANNEXURE-XII: TRUE COPY OF THE NOTICE NO.E2 (D1)2724/04 DTD. 28/02/2008
TO THE CONTRACTOR.
ANNEXURE-XIII: TRUE COPY OF THE ORDER NO.E2 (D1)2724/04 DTD. 11/03/2008.
ANNEXURE-XIV: TRUE COPY OF THE TENDER NOTICE NO.DB GENERAL 146/94
DTD. 26/03/2008 WITH TRANSLATION.
ANNEXURE-XV: TRUE COPY OF THE SELECTION NOTICE DTD. 09/07/2008.
ANNEXURE-XVI: TRUE COPY OF THE LETTER NO.E2 (D1) 2724/04
DTD. 22/07/2008.
ANNEXURE-XVII: TRUE COPY OF THE LETTER DTD. 24/07/2008 WITH
TRANSLATION.
ANNEXURE-XVIII: TRUE COPY OF THE LETTER NO.E2 (D1) 2724/04
DTD. 25/07/2008 WITH TRANSLATION.
ANNEXURE-XIX: TRUE COPY OF THE LETTER DTD. 10/06/2008 SUBMITTED TO
THE SUPERINTENDING ENGINEER WITH TRANSLATION.
ANNEXURE-XX: TRUE COPY OF THE ORDER NO.W1-4536/04 DTD. 12/08/2008.
ANNEXURE-XXI: TRUE COPY OF THE LETTER NO.E2 (D1) 2724/04
DTD. 25/08/2008.
ANNEXURE-XXII: TRUE COPY OF THE ORDER NO.E2 (D1) 2724/04
DTD. 26/08/2008.
Prv.
CON. CASE (C).NO.348/2008-S:
ANNEXURE-XXIII: TRUE COPY OF THE LETTER DTD. 29/08/2008.
ANNEXURE-XXIV: TRUE COPY OF THE LETTER DTD. 02/09/2008.
ANNEXURE-XXV: TRUE COPY OF THE LETTER DTD. 19/09/2008.
ANNEXURE-XXVI: TRUE COPY OF THE NOTICE WITH TRANSLATION.
ANNEXURE-XXVII: TRUE COPY OF THE REPORTS PUBLISHED IN `MALAYALA
MANORAMA' DAILY DTD. 16/11/2008 WITH TRANSLATION.
ANNEXURE-XXVIII: TRUE COPY OF THE REPORTS PUBLISHED IN
`MATHRUBHOOMI' DAILY DTD. 14/11/2008 WITH TRANSLATION.
ANNEXURE-XXIX: TRUE COPY OF THE LETTER NO.E5/1033/06 DTD. 15/12/2008
ADDRESSING ADDITIONAL CHIEF SECRETARY,WATER
RESOURCES DEPARTMENT.
ANNEXURE-XXX: TRUE COPY OF THE LETTER DTD. 19/02/2009.
ANNEXURE-XXXI: TRUE COPY OF THE LETTER DTD. 11/01/2010.
ANNEXURE-XXXII: TRUE COPY OF THE LETTER DTD. 15/02/2010.
ANNEXURE-XXXIII: TRUE COPY OF THE LETTER NO.6071/MI-3/08/WRD
DTD. 24/03/2010.
ANNEXURE-XXXIV: TRUE COPY OF THE LETTER DTD. 25/06/2010.
ANNEXURE-XXXV: TRUE COPY OF THE GOVERNMENT
LETTER NO.6071/MI.3/08/WRD DTD. 24/07/2010.
ANNEXURE-XXXVI: TRUE COPY OF THE LETTER NO.D3 E2/2724/04 (2)
DTD. 29/07/2010.
ANNEXURE-XXXVII: TRUE COPY OF THE MINUTES OF THE MEETING WITH
TRANSLATION.
ANNEXURE-XXXVIII: TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN
W.P.(C).NO.24888/2010.
ANNEXURE-XXXIX: TRUE COPY OF THE LETTER NO.W2-OP-12469/06
DTD. 21/08/2010.
ANNEXURE-XL: TRUE COPY OF THE RELEVANT PAGES OF THE M. BOOK
(PAGES 62 TO 64 AND 74 AND 75).
ANNEXURE-XLI: TRUE COPY OF THE MINUTES OF THE MEETING HELD IN THE
DIVISION OFFICE, ON 25/10/2008.
ANNEXURE A1: TRUE COPY OF THE JUDGMENT DTD. 29/06/2006 IN
W.P.(C).NO.12396/2006.
ANNEXURE A2: TRUE COPY OF THE LETTER DTD. 17/07/2006 ISSUED TO THE
CONTRACTOR.
ANNEXURE A3: TRUE COPY OF THE REPORT OF TRANSFER OF CHARGE
ON 08/11/2006.
Prv.
CON. CASE (C).NO.348/2008-S:
ANNEXURE A4: TRUE COPY OF THE LETTER OF ASST. EX. ENGINEER
DTD. 23/08/2006.
ANNEXURE A5: TRUE COPY OF THE ORDER E2 (DI) 2724/04 DTD. 15/09/2006
EXTENDING TIME TILL 31/12/2006.
ANNEXURE A6: TRUE COPY OF THE LETTER TO THE CONTRACTOR
DTD. 30/10/2006.
ANNEXURE A7: TRUE COPY OF THE JUDGMENT DTD. 22/01/2007
IN C.C. 88/2007.
ANNEXURE A8: TRUE COPY OF THE ORDER OF THIS HON'BLE COURT
DTD. 03/03/2008.
ANNEXURE A9: TRUE COPY OF THE REPORT OF TRANSFER OF CHARGE
ON 31/10/2007.
ANNEXURE A10: TRUE COPY OF THE ORDER OF THIS HON'BLE COURT
DTD. 21ST MAY 2008.
ANNEXURE A11: TRUE COPY OF THE FRONT AND BACK SIDE OF THE
ENVELOPE ADDRESSED TO THE SECOND RESPONDENT IN
THE CONTEMPT CASE.
ANNEXURE A12: TRUE COPY OF THE CHARGE FRAMED BY THIS HON'BLE
COURT DTD. 16TH JUNE 2008.
EXT.R1: TRUE COPY OF THE LETTER DTD. 22/11/2006 SENT BY THE
CONTRACTOR, SRI. HARIDASAN NAIR (CW3) WITH ITS
LEGIBLE COPY.
EXT.R2: TRUE COPY OF THE STATEMENT GIVEN TO ADVOCATE
GENERAL'S OFFICE.
EXT.R3: TRUE COPY OF THE LETTER DTD. 12/12/2006 ISSUED TO THE
ASSISTANT EXECUTIVE ENGINEER WITH ITS LEGIBLE COPY.
EXT.R4: TRUE COPY OF THE LETTER DTD. 19/01/2007 SENT BY THE
ASSISTANT EXECUTIVE ENGINEER.
EXT.R5: TRUE COPY OF THE LETTER DTD. 19/01/2007 SENT BY THE
CONTRACTOR (CW3) WITH ITS ENGLISH TRANSLATION.
EXT.R6: TRUE COPY OF THE FAX MESSAGE DTD. 19/01/2007 GIVEN TO
THE GOVERNMENT PLEADER.
EXT.R7: TRUE COPY OF THE LETTER DTD. 21/02/2007 ISSUED TO THE
ASSISTANT EXECUTIVE ENGINEER.
EXT.R8: TRUE COPY OF THE ORDER DTD. 06/03/2007 EXTENDING TIME
FOR COMPLETION UPTO 30/04/2007.
EXT.R9: TRUE COPY OF THE NOTICE ISSUED BY THE RESPONDENT
DTD. 10/04/2007.
EXT.R10: TRUE COPY OF THE LETTER DTD. 16/04/2007 ISSUED TO THE
ASSISTANT EXECUTIVE ENGINEER WITH ITS LEGIBLE COPY.
EXT.R11: TRUE COPY OF THE LETTER DTD. 16/04/2007 SEND BY THE
CONTRACTOR WITH ITS ENGLISH TRANSLATION.
Prv.
CON. CASE (C).NO.348/2008-S:
EXT.R12: TRUE COPY OF THE LETTER DTD. 23/04/2007 ISSUED TO
ASSISTANT EXECUTIVE ENGINEER WITH ITS LEGIBLE COPY.
EXT.R13: TRUE COPY OF THE LETTER DTD. 05/05/07 ISSUED BY
ASSISTANT ENGINEER TO CONTRACTOR.
EXT.R14: TRUE COPY OF THE LETTER DTD. 30/06/2007 ISSUED TO
ASSISTANT EXECUTIVE ENGINEER.
EXT.R14(a): TRUE COPY OF THE RELEVANT PORTION (PAGE 38 - 45) OF THE
KERALA P.W.D. MANUAL.
EXT.R15: TRUE COPY OF THE D.O. LETTER DTD. 26/11/2007 ISSUED TO THE
ASSISTANT EXECUTIVE ENGINEER.
EXT.R16: TRUE COPY OF THE NOTICE DTD. 28/02/2008 ISSUED TO THE
CONTRACTOR (CW3) WITH ITS LEGIBLE COPY.
EXT.R17: TRUE COPY OF THE ORDER DTD. 11/03/2008 TERMINATING THE
AGREEMENT OF MR. HARIDASAN NAIR (CW3).
EXT.R18: TRUE COPY OF THE SELECTION NOTICE DTD. 09/07/2008
ISSUED TO SRI. M. AMEERKHAN.
EXT.R19: TRUE COPY OF THE LETTER DTD. 22/07/2008 SENT TO
SRI. M. AMEERKHAN.
EXT.R20: TRUE COPY OF THE APPLICATION DTD. 01/04/2008 SUBMITTED BY
PETITIONER UNDER THE RIGHT TO INFORMATION ACT WITH ITS
ENGLISH TRANSLATION.
EXT.R20(A): TRUE COPY OF THE REPLY GIVEN PROVIDING THE
INFORMATION REQUESTED AS PER EXT.R20.
EXT.R21: TRUE COPY OF THE APPLICATION DTD. 20/11/2008 SUBMITTED BY
PETITIONER UNDER THE RIGHT TO INFORMATION ACT WITH ITS
ENGLISH TRANSLATION.
EXT.R21.(A): TRUE COPY OF THE REPLY GIVEN TO EXT.R21 WITH ITS
ENGLISH TRANSLATION.
EXT.R22: TRUE COPY OF THE ORDER DTD. 12/08/2008 REVOKING THE
TERMINATION OF WORK AGREEMENT OF HARIDASAN NAIR.
EXT.R23: TRUE COPY OF THE LETTER DTD. 29/08/2008 ISSUED TO
SRI. HARIDASAN NAIR.
EXT.R24: TRUE COPY OF THE LETTER DTD. 02/09/2008 ISSUED TO
SRI. HARIDASAN NAIR WITH ITS LEGIBLE COPY.
EXT.R25: TRUE COPY OF THE LETTER DTD. 19/09/2008 GIVEN TO
COMMISSIONER OF POLICE, THIRUVANANTHAPURAM CITY.
EXT.R26: TRUE COPY OF THE LETTER DTD. 23/09/2008 ISSUED BY
SUB INSPECTOR, PEROORKKADA POLICE STATION, RENDERING
POLICE PROTECTION WITH ITS ENGLISH TRANSLATION.
EXT.R27: TRUE COPY OF THE REPORT PUBLISHED IN MALAYALA MANORAMA
DAILY DTD. 16/11/2008 WITH ITS ENGLISH TRANSLATION.
Prv.
CON. CASE (C).NO.348/2008-S:
EXT.R28: TRUE COPY OF THE REPORT PUBLISHED IN MATHRUBHOOMI DAILY
DTD. 14/11/2008 WITH ITS ENGLISH TRANSLATION.
EXT.R29: TRUE COPY OF THE COMMUNICATION FROM THE OFFICE OF THE
ADVOCATE GENERAL REQUIRING TO SIGN THE VAKKALATHNAMA.
EXT.R30: TRUE COPY OF THE SANCTION DTD. 04/08/2008 GIVEN FROM
GOVERNMENT.
EXT.R31: TRUE COPY OF THE NOTE FILE PAGE NOS. 21 TO 35 (PARA 52 TO 85)
IN FILE NO.6071/MI3/08/WRD OBTAINED UNDER RIGHT TO
INFORMATION ACT.
EXT.R32: TRUE COPY OF THE LETTER DTD. 09/06/2009 ISSUED FROM THE
OFFICE OF ADDITIONAL CHIEF SECRETARY TO PETITIONER.
EXT.R33: TRUE COPY OF THE LETTER DTD. 29/09/2009 ISSUED BY THE
ADDITIONAL CHIEF SECRETARY TO GOVERNMENT ADDRESSING THE
ADVOCATE GENERAL REQUESTING TO FILE REVIEW PETITION.
EXT.R34: TRUE COPY OF THE LETTER DTD. 04/02/2010 SENT BY ADVOCATE
GENERAL TO GOVERNMENT PROPOSING TO FILE S.L.P AGAINST
EXT.C9 JUDGMENT.
EXT.R35: TRUE COPY OF THE LETTER DTD. 17/11/2008 OF EXECUTIVE
ENGINEER, P.W.D. ROADS DIVISION WITH ITS LEGIBLE COPY.
EXT.R36: TRUE COPY OF THE LETTER DTD. 05/12/2008 ISSUED BY ADDITIONAL
CHIEF SECRETARY TO THE RESPONDENT.
EXT.R37: TRUE COPY OF THE LETTER DTD. 15/12/2008 SUBMITTED BY
PETITIONER.
EXT.R38: TRUE COPY OF THE LETTER DTD. 24/07/2010 ADDRESSED TO THE
EXECUTIVE ENGINEER.
EXT.R39: TRUE COPY OF THE MINUTES OF MEETING DTD. 11/08/2010 HELD IN
THE CHAMBER WITH ITS ENGLISH TRANSLATION.
EXT.R40: TRUE COPY OF THE MINUTES OF THE MEETING HELD ON 14/09/2010
WITH ITS ENGLISH TRANSLATION.
EXT.R41: TRUE COPY OF THE POWER OF ATTORNEY EXECUTED BY
SRI. HARIDASAN NAIR.
EXT.R42: TRUE COPY OF THE REQUEST DTD. 22/09/2010 ADDRESSED TO
COMMISSIONER OF POLICE SEEKING POLICE PROTECTION.
EXT.R43: TRUE COPY OF THE ORDER DTD. 29/09/2010 IN I.A. NO.5575/10 IN
O.S. NO.1250/2010 PASSED BY THE PRINCIPAL MUNSIFF'S COURT,
THIRUVANANTHAPURAM.
EXT.R44: TRUE COPY OF THE MINUTES OF THE MEETING HELD ON 05/01/2012.
EXT.R45: TRUE COPY OF THE LETTER DTD. 23/06/2012 GIVEN BY THE
CONTRACTOR INTIMATING THE STOPPAGE OF WORK AND CLAIMING
THE BILL FOR THE WORK DONE WITH ITS ENGLISH TRANSLATION.
Prv.
CON. CASE (C).NO.348/2008-S:
EXT.R46: TRUE COPY OF THE MINUTES OF THE MEETING DTD. 16/07/2012 WITH
ITS ENGLISH TRANSLATION.
EXT.R46(A): TRUE COPY OF THE LETTER DTD. 31/07/2012 SENT BY CONTRACTOR
SRI. R. SATHYASEELAN WITH ITS ENGLISH TRANSLATION.
EXT.R47: TRUE COPY OF THE D.O. LETTER DTD. 16/01/2013 ISSUED TO
SRI.ANANDAKUMAR.C.
EXT.R48: TRUE COPY OF THE LETTER DTD. 19/07/2013 SEND TO THE
ADDITIONAL CHIEF SECRETARY.
EXT.R49: TRUE COPY OF THE LETTER DTD. 12/08/2013 ADDRESSED TO THE
ADDITIONAL CHIEF SECRETARY.
EXT.R50: TRUE COPY OF THE PROCEEDINGS OF THE DISTRICT COLLECTOR
DTD. 20/09/2013 WITH ITS ENGLISH TRANSLATION.
EXT.R51: TRUE COPY OF HYDRAULIC STUDY REPORT WITH SKETCHES AND
MINUTES OF THE MEETING IN DIVISION OFFICE.
//TRUE COPY//
P.A. TO JUDGE.
Prv.
Manjula Chellur, C.J. & A.M. Shaffique, J.
=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-=
Cont. Case (C) No. 348 of 2008
in
W.P(C) No. 12396 of 2006
and
Cont. Case (C) No. 88 of 2007
=-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=
Dated this, the 24th day of March, 2014.
J U D G M E N T
Shaffique, J.
This contempt case is filed by the complainant alleging non-compliance of the directions issued by this Court in the judgment dated 29.6.2006 in W.P(C) No. 12396/2006 and the judgment dated 22.1.2007 in Cont Case (C) No. 88/2007.
2. In the judgment in the writ petition this Court recorded the submission made on behalf of the 2nd respondent in the case, ie. the Executive Engineer, Minor Irrigation, Thiruvananthapuram stating that the work of providing concrete slabs and constructing retaining walls for Edanadu Thodu shall be done within a period of six months. The judgment reads as under:
"The prayer made in this petition filed under Article 226 of the Constitution of India is to issue a writ in the nature of mandamus commanding respondents 1 to 3 to complete the work of providing concrete slabs and constructing retaining walls for Edanadu Thodu as expeditiously as possible.
2. Pursuant to notice issued by this Court, a statement has been filed by the 2nd respondent, wherein it is mentioned that the needful shall be done within six months from today.
Cont. Case (C) No. 348 of 2008 in W.P(C) No. 12396 of 2006 and Cont. Case (C) No. 88 of 2007 -: 2 :- The learned counsel for the petitioner
says that the petitioner would be satisfied if the work is done within six months. In view of th written statement filed on behalf of the respondents, the matter is closed."
Since the work was not completed within the said period, Cont. Case (C)88/2007 came to be filed. In the said case, on instructions from the respondents, the learned Government Pleader made a statement that the work shall be completed within 30.4.2007 and recording the same this Court closed the contempt case. The judgment reads as under:
"The complainant of the petitioner in this contempt petition is with regard to the non- implementation of the direction contained in the order dated 29th June, 2006 recorded in W.P(C) No. 12396 of 2006-S. We had directed that the work of providing concrete slabs and constructing retaining walls for Edanadu Thodu shall be done within a period of six months. On instructions, learned Government Pleader states that because of monsoon, the work could not be carried out in time as ordered by this Court and further that the work shall be completed within 30.04.2007. In view of the statement made by the learned Government Pleader, which shall stand recorded, we do not wish to further proceed in the matter. Closed."
Since the aforesaid undertaking was not complied by the respondents, the present contempt case came to be filed. Cont. Case (C) No. 348 of 2008 in W.P(C) No. 12396 of 2006 and Cont. Case (C) No. 88 of 2007 -: 3 :-
3. Counter affidavits were filed by the contemners inter alia contending that the work could not be completed on account of various factors, which was beyond their control. However, this Court had framed charge against them. Subsequently, in an application filed by the 2nd contemner Sri. Cherian P. Mathew as I.A. No. 475/2010, by order dated 7.9.2010, this Court having observed that the said applicant was transferred from the post of Executive Engineer on 8.11.2006 discharged him from the contempt case and all further proceedings against him were withdrawn.
4. Hence, the contempt is presently proceeded only against the first contemner B. Jayaraman.
5. The charge dated 16.6.2008 framed against the contemner reads as under:
"This Court, by the judgment dated 29.6.2006 in W.P(C) No. 12396 of 2005-L, had closed the writ petition and that the on the basis of the statement given by you undertaking to complete the work of providing concrete slabs and constructing retaining walls for Edanadu Thodu within a period of six months. In the earlier contempt case (C) No. 88 of 2007 filed by the petitioner complaining non compliance of the above undertaking, you have stated that because of monsoon the work could not be carried out in time as ordered and that the work would be completed within 30.4.2007. Recording that undertaking the contempt was closed.Cont. Case (C) No. 348 of 2008
in W.P(C) No. 12396 of 2006 and Cont. Case (C) No. 88 of 2007 -: 4 :- Now, the complainant has filed this contempt petition alleging that you have deliberately and wilfully disobeyed the directions issued by this Court in the writ petition and also violated the undertaking in the earlier contempt case, as you have not taken any steps to complete the work or even to start the work, even after fully knowing the undertaking and also the judgment of this Court and in spite of the petitioner giving notice to you, you have wilfully refused to take any action in compliance of the direction of this Court and undertaking given by you and thereby committed Contempt of Court, within the meaning of Section 2(b) of the Contempt of Courts Act, 1971, punishable under Section 12 of the Contempt of Courts Act, 1971, within the cognizance of this Court.
And, we hereby direct that you be tried by this Court on the said charge."
6. The contemner denied the charges and accordingly, evidence was taken in the case. The learned Advocate General was directed to conduct the proceedings and accordingly Senior Government Pleader Sri. Manilal conducted the proceedings on behalf of the complainant. CWs 1 to 3 were examined on the side of the complainant and Exts. C1 to C23(a) were marked. The complainant closed the evidence and the contemner was examined as RW1 and R1 to R50 were marked. Thereafter, further evidence was adduced by the contemner and RWs 2 to 6 were examined and Ext. R51 was marked. Thereafter, the matter was heard.
Cont. Case (C) No. 348 of 2008 in W.P(C) No. 12396 of 2006 and Cont. Case (C) No. 88 of 2007 -: 5 :-
7. CW1 is the General Secretary of the Confederation of Consumer Vigilance Centre, the complainant. According to him, he filed the writ petition on 3.5.2006 when there was delay on the part of the authorities to proceed with the work. Though the respondent had undertaken to complete the work within a period of six months on 24.6.2006, no action was taken in that regard. That period was over on 23.12.2006. Since he did not comply with the undertaking given before this Court after issuing notice dated 11.12.2006 (Ext. P3), he filed Cont. Case (C) No. 88/2007. When the matter came up for consideration before this Court, the learned Government Pleader on behalf of the contemner submitted that the work will be completed before 30.4.2007. The undertaken given by the learned Government Pleader on behalf of the contemner was recorded and the contempt case was closed. Ext. P6 is the said judgment. He submits that in order to defeat the direction issued by this Court in the writ petition as well as the undertaking given before this Court certain attempts were made by local people in connivance with the officers of the Irrigation Department and particularly the contemner, a public interest litigation is filed as W.P(C) No. 29072/2006. The contention of the petitioner in the writ petition was that the drain should not be covered with slabs. The said writ petition was dismissed by a Division Bench of this Court on 20.11.2006 and Ext. P5 is the said Cont. Case (C) No. 348 of 2008 in W.P(C) No. 12396 of 2006 and Cont. Case (C) No. 88 of 2007 -: 6 :- judgment. A review petition was also filed, which came to be dismissed on 14.10.2008. The complainant also relied upon certain subsequent events after filing of the present contempt case. It is deposed that against the framing of charge, the contemner filed S.L.P. No. 17484/2008 before the Supreme Court. When there was a stay of proceedings, the work was stopped. The Special Leave Petition was dismissed by the Supreme Court on 13.7.2009. Ext. P6 is the said judgment. Subsequently, when tender proceedings were initiated, the same came to be challenged by 159 persons by filing W.P(C) No. 24692/2008. The same was dismissed stating that granting of relief in the said writ petition would be contrary to the earlier orders passed in this matter. Ext. P9 is the said judgment dated 4.12.2008. According to the witness, contemner filed Special Leave Petition before the Supreme Court and therefore it is obvious that he was instrumental in filing the writ petition. The S.L.P. was dismissed as per judgment dated 21.8.2009, which is produced as Ext. P8. Based on the observation made by the Supreme Court, a Review Petition was filed in the said case as R.P. No. 2/2010, which came to be dismissed. Against the said dismissal of the Review Petition, another S.L.P. was filed, which also was dismissed and Ext. P10 is the said judgment. In the meantime, a was filed before the Munsiff's Court, Thiruvananthapuram as O.S. No. 1250/2010 in which an interim order of injunction was Cont. Case (C) No. 348 of 2008 in W.P(C) No. 12396 of 2006 and Cont. Case (C) No. 88 of 2007 -: 7 :- passed regarding construction of the slab. Ext. P11 is the said order. According to the witness, the contemner is responsible for filing the suit as well. The interim injunction was vacated in an appeal filed by the complainant- association and Ext. P12 is the said order dated 22.12.2011. Therefore, according to CW1, the contemner was instrumental in taking various measures to see that the directions issued by this Court on the basis of his undertaking is not complied and therefore, according to him, there is wilful contempt of court directions and he is liable to be punished in accordance with law.
8. CW2 is the Assistant Executive Engineer, Minor Irrigation, Sub Division, Thiruvnanthapuram. According to him, he took charge in the said position on 1.8.2011. His evidence is based on the available records. He states that an agreement was executed with the contractor on 24.8.2005. The period of completion of work was 2.3.2006. The contractor was unable to complete the work on account of certain disputes at the site. The contractor filed an application on 19.8.2006 for extension of time stating that there is non co-operation by the public and therefore he was unable to proceed with the work. The Assistant Executive Engineer recommended extension of time as per his report dated 23.8.2006. The Executive Engineer, after considering the recommendation, granted extension of time upto 31.12.2006 as per order dated 15.9.2006. Still, the Cont. Case (C) No. 348 of 2008 in W.P(C) No. 12396 of 2006 and Cont. Case (C) No. 88 of 2007 -: 8 :- contractor was unable to complete the work. Again, he made a request for further extension upto 19.6.2007. The said request was also recommended by the Assistant Executive Engineer as per report dated 13.2.2007. The Executive Engineer, by proceedings dated 6.3.2007, granted extension upto 30.4.2007. Ext. P16 is the said proceedings. Since the contractor did not complete the work within the extended time, the Executive Engineer terminated the work at the risk and cost of the contractor as per Ext. P17 order dated 11.3.2008. He further deposes that on 9.7.2008, selection notice was given to one Mr. M. Ameerkhan and the period of completion of the work was six months from the date of handing over the site. The said person did not come up for executing the agreement or to get the site handed over to resume the balance work. By another proceedings dated 12.8.2008 produced as Ext. P18, the termination order of the contractor was revoked by the Superintendent Engineer. Thereafter, the Executive Engineer accepted the period of completion of work upto 11.11.2008 as per proceedings dated 26.8.2008. The work was to be re-started by the original contractor on 19.9.2008, on which date, there was objection from the local people. The estimate was revised on 13.10.2008, which was submitted to the Executive Engineer. The work was again compelled to be stopped on 22.10.2008, though it started on 19.9.2008 due to heavy rain. The work re-commenced on 29.10.2008. But, Cont. Case (C) No. 348 of 2008 in W.P(C) No. 12396 of 2006 and Cont. Case (C) No. 88 of 2007 -: 9 :- it was again stopped due to obstruction by the public on 6.11.2008. The Executive Engineer has filed a complaint before the City Police Commissioner, seeking presence of the police at the work site on 11.11.2008 and therefore on 12.11.2008, shuttering work started. He continued the work upto 15.11.2008. But, in the meantime, he had submitted a request to exonerate him from carrying on the work. On 16.9.2010, the Superintending Engineer issued a selection notice to S.R. Sathyaseelan, another contractor, for doing the balance work. The work commenced on 22.9.2010 and on 29.9.2010, an interim order of injunction was served, prohibiting the carrying out the balance work by the contractor. The said order was vacated only on 22.12.2011 by the District Court, Thiruvananthapuram. The work re-commenced on 6.3.2012 and continued for three days. On 19.3.2012, the local people again obstructed the work and the contractor was compelled to stop the same. An application was submitted to the police for necessary protection. On 23.6.2012, Sri. Sathyaseelan, the contractor, requested to release him from the contract on account of the fact that he was attacked by about 100 persons and they tried to manhandle him. He was also threatened with dire consequence and fatal injuries, including threat to his life. Ext. P19 is his request dated 23.5.2012. There was some compromise talk with the local M.L.A., but no consensus could be arrived at. Later, Sri. Cont. Case (C) No. 348 of 2008 in W.P(C) No. 12396 of 2006 and Cont. Case (C) No. 88 of 2007 -: 10 :- Sathyaseelan, the contractor, again submitted an application dated 31.1.2013 to relieve him from the said work, which is produced as Ext. P20. The Executive Engineer convened a meeting and issued a direction to submit a revised estimate, which was done on 15.7.2013. His revised estimate was accepted by the Government as per Ext. P21 dated 25.9.2013 and Ext. P22 is the schedule of work. In cross-examination, the witness submitted that he was not aware as to whether the police had given protection for the construction of the work. According to him, at the time when he took charge, the contemner was not the Executive Engineer as he was promoted as Superintendent Engineer. When he took charge, the work was stopped on account of the interim injunction granted in the matter by the Munsiff's Court.
9. CW3 is the contractor, who was awarded with the work. According to him, the site was handed over on 30.9.2005 and he had to complete the work within six months from the said date. The work was stopped due to obstruction from the public. He started the work only on 18.1.2006 and again it had to be stopped on 31.1.2006. He had made many requests to the officers to make available police force. But the same was not accepted. Ext. P23 dated 5.8.2010 is the request made by the said witness to the Superintending Engineer. It is stated that public had created horrifying situation in the site and he was unable to Cont. Case (C) No. 348 of 2008 in W.P(C) No. 12396 of 2006 and Cont. Case (C) No. 88 of 2007 -: 11 :- proceed with the work. Though he was granted extension of time, still on account of the obstruction created by the public, he was unable to proceed with the work. According to him, the cancellation of the contract was without giving notice to him. During cross examination, he submitted that one Babu was the Sub Contractor under him who had carried out some work. He denied the suggestion that Mr. Babu was engaged on the suggestion made by the contemner. He also denied the suggestion that written instructions were given to the Sub Inspector of Police, Peroorkada for police protection to carry out the work. He denied the suggestion that it was to please the Chief Engineer Mr. Sathish of P.W.D. that he delayed the contract work.
10. The contemner was examined as RW1. He filed proof affidavit as evidence in chief. According to him, he was working as Executive Engineer in the said Department from 8.11.2006 to 29.4.2010. He was promoted as Superintending Engineer on 29.4.2010 and thereafter as Chief Engineer, Project-2 on 31.5.2012. According to him, at the time when the judgment dated 29.6.2006 was passed, Sri. Cherian P. Mathew, his predecessor, was the Executive Engineer and it is based on his instructions that the direction was issued by this Court. He narrates the details regarding the contract awarded to the contractor and further indicates the obstruction in carrying out the Cont. Case (C) No. 348 of 2008 in W.P(C) No. 12396 of 2006 and Cont. Case (C) No. 88 of 2007 -: 12 :- work on account of various reasons. After assuming charge, he had issued Ext. R3 letter to the Assistant Executive Engineer to report whether the work will be completed within 31.12.2006. He received a reply dated 19.1.2007 (Ext. R4) stating that directions were issued to restart the work, which was expected to be completed by April, 2007. This is evident from the request of the contractor for extension of time as well produced as Ext. R5. In the meantime, Cont. Case No. 88/2007 came to be filed and he had given instruction to the Government Pleader on 19.1.2007 stating that the work is expected to be completed before April, 2007. Ext. R6 is copy of the said Fax message. He also narrates various steps he had taken to comply with the directions issued by this Court and the undertaking given by him. Reliance is placed on Ext. R7 dated 21.2.2007 issued by him to the Assistant Executive Engineer to personally attend to the said work and to complete the same before April, 2007 and he was also informed that failure to do so would amount contempt of the judgment. Since there was no further progress, he was repeatedly requesting the contractor to complete the said work before 30.4.2007. Ext. R9 is the letter dated 10.4.2007 in this regard. Further, by another letter dated 16.4.2007, produced as Ext. R10, he informed the Assistant Executive Engineer that necessary action has to be taken to complete the work by 30.4.2007. By Ext. R11 letter dated 16.4.1007, the contractor has Cont. Case (C) No. 348 of 2008 in W.P(C) No. 12396 of 2006 and Cont. Case (C) No. 88 of 2007 -: 13 :- expressed his incapacity to continue the work as he had to stop the work thrice on account of the obstruction of local people. The witness deposes that he conducted site inspection and persuaded the contractor to complete the work immediately. A letter to that effect was issued to the Assistant Executive Engineer on 23.4.2007 as Ext. R12. He further deposes that he had repeatedly contacted the Assistant Executive Engineer and the Assistant Engineer to complete the said work. A letter was addressed by the Assistant Engineer to the contractor on 5.5.2007 as Ext. R13. Since there was no progress in the work, he again requested the Assistant Executive Engineer to give a report as per Ext. R14 letter. Since no such action was taken to complete the work, he issued a letter dated 26.11.2007 to the Assistant Executive Engineer requesting personally to look into the matter and report the stage of work. Despite persistent efforts by him, there was no response from the side of the contractor and he had issued final notice dated 28.2.2008 to terminate the contract. Ext. R16 is the said notice. In Ext. R16, the contractor was given time to complete the work within the shortest period by getting the time of completion extended. He did not comply with the said request and ultimately, the contract had to be terminated by Ext. R17 letter dated 11.3.2008. He also narrates the subsequent steps that had been taken in the matter by which a selection notice was issued to Sri. Cont. Case (C) No. 348 of 2008 in W.P(C) No. 12396 of 2006 and Cont. Case (C) No. 88 of 2007 -: 14 :- Ameerkhan for carrying out the balance work and the inability of Ameerkhan to proceed with the work and thereafter again engaging the previous contractor by revoking his termination as per order dated 12.8.2008 produced as Ext. R22. He further states that despite requesting the contractor, he was unable to renew the contract and execution of the supplementary agreement. The work could not be started. He therefore issued letter dated 2.9.2008 to the contractor to restart the work immediately and to furnish a programme chart of execution of the work as per Ext. R24. Though the contractor restarted the work on 19.9.2008, still some people in the locality obstructed. The matter was reported to the Commissioner of Police to provide adequate security. Ext. R25 is the said request. The Sub Inspector of Police provided protection for execution of the work, which is evident from Ext. R26. Though the work started in full swing and the foundation for the retaining wall was constructed and shuttering for concreting work of retaining wall was erected, again, local people agitated against the work being carried on, which appeared in news papers as well. The newspapers are produced as Exts. R27 and R28. Thereafter, Special Leave Petition was filed against the framing of charges as advised by the Advocate General. Even after the order of stay was granted by the Supreme Court in the contempt matter, he states that he Cont. Case (C) No. 348 of 2008 in W.P(C) No. 12396 of 2006 and Cont. Case (C) No. 88 of 2007 -: 15 :- had taken all possible efforts to proceed with the work. In the meantime, another litigation was initiated by certain people in the locality by filing W.P(C) No. 24692/2008, which came to be dismissed on 4.12.2008. He further states that the petitioners in the writ petition approached the Additional Chief Secretary to Government who visited the site and observed that if the work is completed as proposed, it will create water logging in the area. The Additional Chief Secretary also opined that the High Court should be apprised about the situation by filing appropriate proceedings. Additional Chief Secretary convened a meeting at the instance of the Minister and it was decided to file Special Leave Petition against Ext. C7 judgment. Ext. R31 is the said note file. He also relies upon letter dated 9.6.2009 produced as Ext. 32 to indicate that the SLP was filed at the instance of the Government and not at his instance. He further relies upon Ext. R33 dated 20.9.2009 issued by the Additional Secretary to Government, requesting the Advocate General to file review petition after withdrawing the Special Leave Petition. He submits that he had to swear the affidavit in the review petition on the direction issued by the Additional Chief Secretary. The review petition came to be dismissed and the Advocate General proposed to file a Special Leave Petition. Copy of the letter of the Advocate General is produced as Ext. R34. The Government gave sanction and accordingly the SLP was Cont. Case (C) No. 348 of 2008 in W.P(C) No. 12396 of 2006 and Cont. Case (C) No. 88 of 2007 -: 16 :- filed. It is stated by the contemner that he was not responsible for any of the aforesaid litigations and the same was only at the instance of the Government. He further refers to a letter dated 17.11.2008 (R35) issued by the Executive Engineer, PWD Roads Division stating that the proposed work will create reduced vent way resulting in flood situation and requested to reconsider the said work. The Government sought remarks to the same as evident from Ext. R36 to which he had sent a reply dated 15.12.2008 as evident from Ext. R37 explaining that the vent way has been modified providing 1.59 times larger than the went way as provided by PWD. Subsequently, he was promoted as Superintending Engineer, Minor Irrigation Circle on 29.4.2010 and in his place Sri. Ananthakumar took charge. Even after his transfer, according to him, he requested the Government to take immediate steps to complete the work and the Government addressed Ext. R38 letter dated 24.7.2010 to the Executive Engineer to comply with the directions in Ext. C2 judgment. The Executive Engineer issued a letter to the contractor to commence the work. But, instead of proceeding with the work, he approached the High Court by filing W.P(C) No. 24988/2010 seeking revision of rate. A meeting was convened on 11.8.2010 and Ext. R39 is the minutes, which would indicate that the contractor had requested for revised rate. He again took initiative and he caused a power of Cont. Case (C) No. 348 of 2008 in W.P(C) No. 12396 of 2006 and Cont. Case (C) No. 88 of 2007 -: 17 :- attorney to be executed by the contractor in favour of one Sathyaseelan to carry on with the work. Ext. R40 dated 14.9.2010 is the said minutes and copy of the power of attorney is produced as Ext. R41. Sri. Sathyaseelan started the work on 22.9.2010 with police protection. On 30.9.2010, the Principal Munsiff's Court, Thiruvananthapuram, passed an interim order of injunction and the same was vacated only on 22.12.2010 in an appeal filed by the Government before the District Court, Thiruvananthapuram.
11. After disposal of the appeal, he convened a meeting on 5.1.2012 and a decision was taken to complete the work on a war footing. Though the contractor started the work on 13.3.2012, it was again obstructed by the people in the locality on 19.3.2012. Again a meeting was convened by the Executive Engineer on 16.7.2012 in order to arrive at a conciliation and Ext. R46 is the said minutes. But, no decision was taken in the matter. He was promoted as Chief Engineer, Project-2 and he took charge on 31.5.2012. According to him, even thereafter, he continued his efforts to see that the work is completed. Ext. R47 dated 16.1.2013 is produced to indicate that he had requested the Executive Engineer to proceed with the work on a war footing. Ext. R48 dated 19.7.2013 is the letter addressed to the Additional Chief Secretary, requesting for completion of the work. The contractor requested for Cont. Case (C) No. 348 of 2008 in W.P(C) No. 12396 of 2006 and Cont. Case (C) No. 88 of 2007 -: 18 :- revision of rates and he had addressed a letter to the Additional Chief Secretary on 12.8.2013 to revise the rates in order to enable the contractor to complete the work. The District Collector has also ordered to invoke Section 144 Crl. P.C. to complete the work. Ext. R50 is the proceedings. He therefore deposes that he has not committed wilful contempt in the matter and it was only on account of the circumstances mentioned above that he was unable to complete the work as undertaken. During cross examination, he reiterated the statements made in the chief examination.
12. RW2 is the Assistant Engineer in charge of the work. According to him, he was in charge from 4.10.2010 to 24.5.2010. He also narrates the difficulties in carrying out the work and the reluctance expressed by the contractor in proceeding with the work on account of various factors, including the objection raised by the people in the locality. He refers to Ext. R51 study report with sketches and minutes of the meeting in the divisional office by which necessary action was taken to prevent excess water to be flown over the proposed slab. He also submits that police protection was obtained as there was public protest. He further deposes that revised designing and shuttering were also done. According to him, all necessary actions had been done to avert the apprehension expressed by the public at large, but it did not yield any result. Cont. Case (C) No. 348 of 2008 in W.P(C) No. 12396 of 2006 and Cont. Case (C) No. 88 of 2007 -: 19 :-
13. RW3 was the Assistant Executive Engineer in charge of the work from 11.11.2008 to 1.8.2011. He also deposed regarding the work in question and the difficulties faced in completing the work.
14. RW4 was the Assistant Executive Engineer who was designated as the Personal Assistant of the Executive Engineer holding charge from 28.5.2010 to 22.2.2013. He speaks about the action taken with reference to the judgment in C.M.A. No.75/2010 of the District Court, Thiruvananthapuram and also the subsequent meeting held to avoid the obstruction created by the people in the locality.
15. RW5 is the Executive Engineer of Minor Irrigation Division from 18.4.2013 onwards. According to him, appropriate steps are being taken to restart the work and necessary police protection had been obtained. The District Collector had also invoked proceedings under Section 144 of Crl. P.C. and the work is in progress.
16. RW6 is the contractor, who is carrying on with the said work. According to him, he has started the work only on 13.3.2012 and it was stopped by about 100 people on 19.3.2012. His workers were also manhandled by the mob and he was threatened and his materials were also stolen. According to him, he had offered to carry out the work on getting a revised rate and with police protection. He states that he has re-started the work, which is in Cont. Case (C) No. 348 of 2008 in W.P(C) No. 12396 of 2006 and Cont. Case (C) No. 88 of 2007 -: 20 :- progress.
17. Having regard to the evidence adduced by either parties, the point to be considered is whether the contemner is responsible for any wilful contempt.
18. The learned Special Government Pleader Sri. Manilal submits that the contemner has committed wilful contempt in so far as he had not complied with the directions issued by this Court on the basis of the undertaking given by him to complete the work. That apart, the evidence adduced in the case discloses that the contemner had deliberately avoided compliance of the judgment by delaying the work and enabling certain other people in the locality to file cases and prevent the construction of the slab, which is the subject matter of the judgment. It is also argued that the contemner had even attempted to evade compliance by filing review petitions before this Court, by filing Special Leave Petition before the Supreme Court and therefore the material on record clearly indicates his deliberate inaction in the matter.
19. On the other hand, the learned Senior Counsel Sri. T.A. Shaji submits that the contemner had not committed any wilful contempt of the directions issued by this Court. According to him, the contemner was prevented by sufficient cause in not complying with the directions issued by this Court. It is argued that the contemner had tried all his level best to comply with the directions issued Cont. Case (C) No. 348 of 2008 in W.P(C) No. 12396 of 2006 and Cont. Case (C) No. 88 of 2007 -: 21 :- by this Court but he was prevented by unavoidable circumstances in completing the work and since even now, the work could not be competed, that by itself would indicate objections raised by various persons in the locality. Even after the contemner had been promoted to the post of Superintending Engineer the next incumbent in office as Executive Engineer could not complete the work. As matters stand now, the District Collector had interfered in the matter, he has invoked the provisions of Section 144 of Crl. P.C. and police is providing protection to the contractor and his men for carrying out the work. Therefore, it is contended that when it is an admitted fact that even now the work could not be completed, the contemner did not show any wilful disobedience and the contemner had not done any deliberate act to prevent the construction of the aforesaid slab. The learned counsel also relied upon the following judgments:
(i) Union of India v. Madras Telephone S.C. & S.T. Social Welfare Association, AIR 2000 SC 1717. It was held in the above said judgment that if departmental authorities entertain bona fide difficulties in implementing the decision of the Court, it would not be proper to proceed against the authorities under contempt.
(ii) Sector-6, Bahadurgarh Plot Holders' Association and others v. State of Haryana and Another, (1997) 10 SCC 97. In that case, it was held that since the authority Cont. Case (C) No. 348 of 2008 in W.P(C) No. 12396 of 2006 and Cont. Case (C) No. 88 of 2007 -: 22 :- had made its best efforts to complete all the developmental work, it cannot be stated that the respondent authority had committed contempt of court.
(iii) In Manish Gupta and others v. Gurudas Roy, (1995) 3 SCC 559, it was held that if the inaction taken by the authority did not reflect an intention of wilful or deliberate disobedience of court order, it cannot be made as contempt.
(iv) Niaz Mohammed and others v. State of Haryana and Others, (1994) 6 SCC 332. In that case, it was held that from the circumstances of a particular case, the court is satisfied that although there has been a disobedience, such disobedience is the result of some compelling circumstances under which it was not possible for the contemner to comply with the order, the court cannot punish the alleged contemner.
20. From the material produced, it is evident that the contemner had undertaken to complete the work of the slab within 30.4.2007. The question is as to whether he had taken any steps to comply with the said direction. As far as the judgment in W.P(C) No. 12396/2006 is concerned, the contemner had not given any such offer, as, according to him, he joined as Executive Engineer in the Minor Irrigation Division only on 8.11.2006 when the judgment was passed on 29.6.2006. Apparently, the contemner cannot be found fault with by giving such an offer to complete the work Cont. Case (C) No. 348 of 2008 in W.P(C) No. 12396 of 2006 and Cont. Case (C) No. 88 of 2007 -: 23 :- within six months. However, when Cont. Case No. 88/2007 was filed, the contemner offered to complete the work within 30.4.2007. It is not in dispute that the contemner had given instructions to the learned Government Pleader to make the said submission and accordingly a Division Bench of this Court recorded the submission made by the Government Pleader and the contempt case was closed. Ext. R6 is the Fax Message dated 19.1.2007 sent by the contemner to the learned Government Pleader wherein it is stated that the work has already started, the delay was due to extended period of monsoon, the upstream side persons plea has been considered and the work tendered for easing the flood situation on the upstream portion of the thodu from the present work site and the work is expected to be completed before April,2007. Of course, the contemner does not say that it was not his duty to comply with the said direction, but he was prevented by sufficient cause for not completing the work within the said specified time. In order to prove the said fact, the contemner relies upon Ext. R1 letter dated 22.1.2006 issued by the contractor stating that he is unable to carry out the work on account of heavy rain and that he will proceed with the work after the rainy season. He relies upon Ext. R2 statement of fact submitted to the High Court when W.P(C) No. 29072/2006 came to be filed stating the necessity for constructing the said slab and the work involved in the matter. By Ext. R3 dated Cont. Case (C) No. 348 of 2008 in W.P(C) No. 12396 of 2006 and Cont. Case (C) No. 88 of 2007 -: 24 :- 12.12.2006, he had called upon the Assistant Executive Engineer to provide particulars regarding the stage of construction. Ext. R4 dated 19.1.2007 is a letter sent by the Assistant Executive Engineer to the contemner stating that the work has restarted and is expected to be completed by April, 2007. Ext. R5 is the letter dated 19.1.2007 of the contractor stating that though the work was restarted on the second day, members of the Council, L.C. member etc., came to the sight and asked him to stop the work and his workers were prevented from carrying on the work and accordingly, the work had to be stopped. After discussions with the MLA, Chief Engineer etc., he was given instructions to proceed with the work and the work started on 19.1.2007. He further states that he should be given time till 19.6.2007 for completing the work and that there should not be any other hindrance in carrying out the work. Ext. R7 is a letter dated 21.2.2007 sent by the contemner to the Assistant Executive Engineer stating that the work has to be completed before April, 2007 otherwise, it will become contempt of court. Hence he was asked to attend to the work immediately and to inform the court. Ext. R8 is the proceedings of the Executive Engineer extending the time for completing the work up to 30.4.2007 without any fine. A copy is seen marked to the contractor as well. Ext. R9 is a letter dated 10.4.2007 issued by the contemner to the contractor stating that the work was unsatisfactory and he Cont. Case (C) No. 348 of 2008 in W.P(C) No. 12396 of 2006 and Cont. Case (C) No. 88 of 2007 -: 25 :- was requested to complete the same before 30.4.2007, failing which the matter will be reported to the higher authorities. The contemner issued further letter Ext. R10 dated 16.4.2007 to the Assistant Executive Engineer calling upon him to complete the work by 30.4.2007. Another letter relied upon is that of the contractor produced as Ext. R11 dated 16.4.2007. He has stated that though the work was restarted, the people in the locality again obstructed the work. It is further stated that if he continues the work, he will suffer huge loss and therefore he should be paid for the work already done after taking measurements and he should be relieved from guarantee on the balance work. Ext. R13 dated nil, is another letter issued by the Assistant Engineer to the contractor to inform him that the time of completion is extended up to 3.5.2007 and he was requested to complete the work within the said time limit. Ext. P15 dated 26.11.2007 is the letter by which the work of the contractor had been terminated at his risk and cost.
21. These material documents would show that the contemner had taken various steps to see that the work is carried on and he had addressed several letters to the Assistant Executive Engineer as well as the contractor. But the contractor did not complete the work on account of two reasons. One is that he requires revision of rates and second is that there is obstruction from the public in the locality and other persons.
Cont. Case (C) No. 348 of 2008 in W.P(C) No. 12396 of 2006 and Cont. Case (C) No. 88 of 2007 -: 26 :-
22. Ext. R18 dated 9.7.2008 evidences that another contractor was engaged to complete the work on selection basis. Finally, the Superintending Engineer had revoked the termination of contract with reference to Haridasan Nair as per proceedings dated 12.8.2008 and it was ordered that he should complete the work on or before 11.11.2008. Ext. R22 is the said order dated 12.8.2008. Even thereafter, it is seen that the contractor was unable to proceed with the work. The subsequent events that followed would also indicate the proceedings initiated by several people in the locality, the direction issued by the Additional Chief Secretary, the interim injunction granted by the Munsiff's Court, Thiruvananthapuram etc., by which the work was delayed and could not proceed.
23. Having regard to the aforesaid evidence adduced by the contemner, we do not think that there was any deliberate action on the part of the contemner to avoid the directions issued by this Court in the judgments aforesaid, whereas the contemner had taken various steps which is within his control to see that the work is completed before 30.4.2007. The work could not be carried out on account of various factors, including public protest. The evidence adduced on the side of the contemner would satisfactorily disclose that all along, he was trying to see that the work is done as directed by this Court. But, there had been change in the stand taken by the Government on account of which Cont. Case (C) No. 348 of 2008 in W.P(C) No. 12396 of 2006 and Cont. Case (C) No. 88 of 2007 -: 27 :- the matter had to be taken up to the Supreme Court in S.L.P. during contempt proceedings as well as when other proceedings were initiated. It is also a matter of record that there had been substantial public uproar by which there was obstruction in carrying out the work.
24. The learned Special Government Pleader would further submits that the contemner ought to have approached the police for necessary assistance at the relevant point of time. Of course, the contemner could have sought police protection. But, being an officer of the Government, the contemner will have to take recourse to other proceedings before approaching the police. When there is a public issue involved in the matter, the contemner may also find it difficult to take decisions against the public at large, especially when the local MLA and other politicians are involved in such issues. Even according to the contractor, about 100 persons attacked the contractor's men and their materials were taken away. In fact, the evidence on record would show that there was a tense situation in the locality and the construction of the slab, which is the subject matter in issue, had given rise to a volatile public issue. It is also an admitted fact that the Additional Chief Secretary had to involve in the matter and issued certain directions to stop the work on account of public interference.
Cont. Case (C) No. 348 of 2008 in W.P(C) No. 12396 of 2006 and Cont. Case (C) No. 88 of 2007 -: 28 :-
25. Section 2(b) of the Contempt of Courts Act, 1971 defines civil contempt which reads as under:
2. Definitions.--In this Act, unless the context otherwise requires,--
(a) .......
(b) "civil contempt" means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court;
What is wilful disobedience has been considered by the Supreme Court in various judgments and a few of which are discussed herein. In Madras Telephone S.C. & S.T. Social Welfare Association (supra) the Supreme Court held that if bona fide difficulties are felt in implementing the decision of the Court, it would not be proper to proceed against the authorities under contempt. In Sector-6, Bahadurgarh Plot Holders' Association and others v. State of Haryana and Another, (supra) it was held that since the authority had made its best efforts to complete all the developmental work, contempt of court is not committed. Similarly in Manish Gupta (supra), it was held that if the inaction of the authority did not reflect an intention of wilful or deliberate disobedience of Court order, it cannot be made as contempt. In Niaz Mohammed (supra) it was held that if the court is satisfied that if the disobedience is the result of some compelling circumstances under which it was not possible for the contemner to comply Cont. Case (C) No. 348 of 2008 in W.P(C) No. 12396 of 2006 and Cont. Case (C) No. 88 of 2007 -: 29 :- with the order, the court cannot punish the contemner. It is held as under:
"9. Section 2(b) of the Contempt of Courts Act, 1971 (hereinafter referred to as `the Act') defines "civil contempt" to mean "wilful disobedience to any judgment, decree, direction, order, writ or other process of a court ...". Where the contempt consists in failure to comply with or carry out an order of a court made in favour of a party, it is a civil contempt. The person or persons in whose favour such order or direction has been made can move the court for initiating proceeding for contempt against the alleged contemner, with a view to enforce the right flowing from the order or direction in question. But such a proceeding is not like an execution proceeding under Code of Civil Procedure. The party in whose favour an order has been passed, is entitled to the benefit of such order. The court while considering the issue as to whether the alleged contemner should be punished for not having complied with and carried out the direction of the court, has to take into consideration all facts and circumstances of a particular case. That is why the framers of the Act while defining civil contempt, have said that it must be wilful disobedience to any judgment, decree, direction, order, writ or other process of a court. Before a contemner is punished for non- compliance of the direction of a court, the court must not only be satisfied about the disobedience of any judgment, decree, direction or writ but should also be satisfied that such disobedience was wilful and intentional. The civil court while executing a decree against the judgment-debtor is not concerned and bothered whether the disobedience to any judgment, or decree, was wilful. Once a decree has been passed it is the Cont. Case (C) No. 348 of 2008 in W.P(C) No. 12396 of 2006 and Cont. Case (C) No. 88 of 2007 -: 30 :- duty of the court to execute the decree whatever may be consequence thereof. But while examining the grievance of the person who has invoked the jurisdiction of the court to initiate the proceeding for contempt for disobedience of its order, before any such contemner is held guilty and punished, the court has to record a finding that such disobedience was wilful and intentional. If from the circumstances of a particular case, brought to the notice of the court, the court is satisfied that although there has been a disobedience but such disobedience is the result of some compelling circumstances under which it was not possible for the contemner to comply with the order, the court may not punish the alleged contemner.
In Ashok Paper Kamgar Union v. Dharam Godha, (2003) 11 SCC 1) the Supreme Court held as under:
"17. Section 2(b) of the Contempt of Courts Act defines "civil contempt" and it means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of undertaking given to a court. "Wilful"
means an act or omission which is done voluntarily and intentionally and with the specific intent to do something the law forbids or with the specific intent to fail to do something the law requires to be done, that is to say, with bad purpose either to disobey or to disregard the law. It signifies a deliberate action done with evil intent or with a bad motive or purpose. Therefore, in order to constitute contempt the order of the court must be of such a nature which is capable of execution by the person charged in normal circumstances. It should not require any Cont. Case (C) No. 348 of 2008 in W.P(C) No. 12396 of 2006 and Cont. Case (C) No. 88 of 2007 -: 31 :- extraordinary effort nor should be dependent, either wholly or in part, upon any act or omission of a third party for its compliance. This has to be judged having regard to the facts and circumstances of each case." xxxxx
26. As on date, the situation is that it was not possible for the Government to complete the work and the District Collector had to initiate steps under Section 144 of the Crl. P.C.
27. The learned Government Pleader has a case that the contemner was responsible for various litigations, which were filed for the purpose of preventing construction of the aforesaid slab. This, we do not think, is supported by any evidence on record. Merely for the reason that the Government had decided to file SLP's and Review Petitions against certain directions issued by this Court does not mean that it is to avoid compliance of the directions issued by this Court that at the instance of the contemner, several cases came to be filed.
28. In order to find a person guilty of contempt it has to be found that his act or omission was voluntary and intentional and with the specific intent to fail to do something which the Court requires to be done. Such failure should be with bad purpose either to disobey or to disregard the Court orders. In other words as held in Ashok Paper Kamgar Union (supra) it signifies a deliberate action done with evil intent or with a bad motive or purpose. Further the Cont. Case (C) No. 348 of 2008 in W.P(C) No. 12396 of 2006 and Cont. Case (C) No. 88 of 2007 -: 32 :- order of the court must be capable of execution by the person charged in normal circumstances. It should not require any extraordinary effort and should not depend upon any act or omission of a third party for its compliance. Having regard to the evidence adduced, we are of the opinion that the contemner was depending upon the contractor to carry on with the work. The contractor could not do the work due to various circumstances mentioned above. It cannot therefore be said that the contemner has committed any wilful act or disobedience of the orders of this Court.
Accordingly, we are of the view that the contemner is not guilty of the charge levelled against him and in the circumstances, he is acquitted of the said charges.
Sd/- Manjula Chellur, Chief Justice Sd/- A.M. Shaffique, Judge.
Tds/