Biju C.H. v. Sreekanth T.R. and C.S. Manilal

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **TUESDAY, THE 28[TH] DAY OF NOVEMBER 2023 / 7TH AGRAHAYANA, 1945 CON.CASE(C) NO. 1188 OF 2023 AGAINST THE ORDER/JUDGMENT WP(C) 24695/2022 OF HIGH COURT OF** **KERALA** ## **PETITIONER:** BIJU C.H. AGED 49 YEARS S/O HARIHARAN NAIR, CHETHIYIL HOUSE, NATTASSERY, S.H. MOUNT P.O., KOTTAYAM, VIJAYAPURAM VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT., PIN - 686006 BY ADVS. V.N.SANKARJEE V.N.MADHUSUDANAN R.UDAYA JYOTHI M.M.VINOD M.SUSEELA KEERTHI B. CHANDRAN VIJAYAN PILLAI P.K. C.PURUSHOTHAMAN NAIR ## **RESPONDENT:** SREEKANTH T.R. FATHER'S NAME, AGE AND RESIDENTIAL ADDRESS ARE NOT KNOWN TO THE PETITIONER, THE SECRETARY, VIJAYAPURAM VILLAGE PANCHAYAT, VIJAYAPURAM, VADAVATHOOR P.O., KOTTAYAM DISTRICT., PIN – 686010 C.S.MANILAL THIS CONTEMPT OF COURT CASE (CIVIL) HAVING COME UP FOR ADMISSION ON 28.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **Con.Case.(C).No.1188 of 2023 1** ## **VIJU ABRAHAM,J** **----------------------Con.Case.(C).No.1188 of 2023 --------------------------------Dated this the 28[th] day of November, 2023** ## **JUDGMENT** The above Contempt of Court Case is filed alleging non compliance of Annexure-A1 judgment in WP(C) No.24695/2022. 2. WP(C) No.24695/2022 was filed seeking a direction to the 6[th] respondent in the writ petition (Secretary Vijayapuram Village Panchayat) for issuance of a completion and occupancy certificate and make assessment of the cellar and ground floors of the petitioner's building constructed on the basis of Ext.P6 building permit and plan. The stand taken by the 6[th] respondent in the writ petition is that after the completion plan was submitted by the petitioner, complaints were received alleging illegal encroachment by the petitioner on the road by name MelettupadiPoozhimel road, during the construction of the building and that the Panchayat has made a request ## **Con.Case.(C).No.1188 of 2023 2** before the Tahsildar (Land Records) to provide the details regarding the concerned road and as per the asset register maintained by the Panchayat, there is a road namely Melettupadi-Poozhimel road. After hearing both sides, this Court disposed of the writ petition directing the 6[th] respondent to initiate further proceedings on the request of the petitioner for issuance of a completion and occupancy certificate and make assessment of the cellar and ground floors of the petitioner's building after receipt of the necessary report from the 3[rd] respondent Tahsildar (Land Records). It is alleging non-compliance of the said directions that the present contempt of court case is filed. 3. The petitioner relies on Annexure-V report wherein it is specifically stated that there is no encroachment on the road by the petitioner. The contention of the petitioner is that in spite of issuance of Annexure-V report wherein it is stated that the petitioner has not encroached upon any puramboke land, it is submitted that the Panchayat ## **Con.Case.(C).No.1188 of 2023 3** has issued Annexure-VII communication wherein various other defects have been stated for non- consideration of the application for issuance of completion and occupancy certificate which includes an objection that there is no minimum 2 metres distance from the public road and that is a case of violation of the Kerala Panchayat Raj Building Rule, 2019. Petitioner contends that except the said defect noted, all other defects noted in Annexure VII has been cured. Petitioner has a further contention that there is no such road in existence and the issuance of Annexure-VII stating distance violation from a public road is absolutely without any basis and the respondent is liable to be proceeded against for contempt. 4. A counter affidavit has been filed by the respondent wherein it is admitted that there is no encroachment on the public road by the petitioner as alleged in the complaint received by them. The respondent has produced Annexure R1 (d) which is the asset register maintained by the Panchayat which shows the existence of the road by name ## **Con.Case.(C).No.1188 of 2023 4** Melettupadi-Poozhimel road and contended that the building has been constructed without leaving statutory two-metre distance from an existing public road. 5. The respondent has filed an additional affidavit producing Annexure R1(e), certificate issued by the Village Officer, Vijayapuram Village, which also certified that there is a public road in existence. On the basis of the same, the stand of the respondent is that there is no willful disobedience to the directions issued by this Court and therefore, the Contempt proceedings may be dropped. Petitioner on the basis of Annexure – XV series of photographs contended that there is no such road in existence and that he constructed the building only as per the permit granted by the respondent and if there was a road in existence as contended by the respondent the permit ought not to have been granted to him. 6. I have considered the rival contentions of the parties. The complaint against the petitioner ## **Con.Case.(C).No.1188 of 2023 5** was that there is an encroachment upon a public road which was found to be wrong as per the report submitted by the Village Officer concerned, but in Annexure-VII communication the respondent has found that there are other violations including the lack of 2 metre distance from a public road. On the contrary, the contention of the petitioner is that there is no such road in existence at all and that he constructed the building only as per the permit granted by the respondent and if there was a road in existence as contended by the respondent the permit will not have been granted to him. Though the reason stated for rejecting the request of the petitioner was found to be not sustainable, new reasons have been stated in Annexure VII communication, the veracity of which cannot be adjudicated in a contempt petition and this court cannot issue any supplementary or consequential directions which are not found in the original judgment (see judgments in **V M Manohar Prasad v. N Ratnam Raju (2004) 13 SCC 610, Sudhir Vasudeva Chairman and MD ONGC & Ors. v.** **Con.Case.(C).No.1188 of 2023 6** **M.George Revishekaran & Ors. (2014 3 SCC 373), Senthur v. Vijayakumar (2021 (6) KLT SN 3** and the judgment in **Jhareswar Prasad Paul & Anr. v. Tarak Nath Ganguly & Ors. (2002) 5 SCC 352** ). Therefore, I am of the opinion that it is for the petitioner to challenge the same in appropriate proceedings. Granting such liberty and finding that there is no wilful disobedience to the directions issued by this court, the above contempt of court case is closed. **==> picture [25 x 9] intentionally omitted <==** **VIJU ABRAHAM, JUDGE** pm **Con.Case.(C).No.1188 of 2023 7** ## **APPENDIX OF CON.CASE(C) 1188/2023** PETITIONER'S ANNEXURES Annexure -I CERTIFIED COPY OF THE JUDGMENT DATED 28.2.2023 IN W.P.(C) NO. 24695/2022 OF THIS HONOURABLE COURT Annexure-II TRUE COPY OF THE PETITIONER'S LETTER DATED 9.3.2023 SUBMITTED TO THE 3RD RESPONDENT WITH ACKNOWLEDGMENT DATED 9.3.2023 ISSUED FROM THE TALUK OFFICE, KOTTAYAM - Annexure-III TRUE COPY OF THE EXHIBIT P11 REPORT NO. 82/2020 DATED 6.3.2020 OF THE VILLAGE OFFICER - Annexure-IV TRUE COPY OF THE JUDGMENT DATED 16.3.2020 IN W.P.(C) NO.8057 OF 2020(F) OF THIS HONOURABLE COURT - Annexure-V TRUE COPY OF THE LETTER NO. K5-1355/23 DATED 4.4.2023 WITH REPORT OF THE TALUK SURVEYOR AND SURVEY MAP TO THE RESPONDENT - Annexure-VI TRUE COPY OF THE LETTER DATED 10.4.2023 OF THE PETITIONER TO THE RESPONDENT WITH ACKNOWLEDGMENT RECEIPT DATED 10.4.2023 OF THE VIJAYAPURAM GRAMA PANCHAYAT - Annexure-VII TRUE COPY OF THE LETTER NO. 400512/PTAL01/GENERAL/2022/2485/(1) DATED 19.4.2023 ISSUED BY THE RESPONDENT TO THE PETITIONER Annexure-VIII TRUE COPY OF THE REPRESENTATION DATED 19.5.2023 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT WITH ACKNOWLEDGEMENT RECEIPT Annexure IX TRUE COPY OF THE NOTICE NO. SC42485/22 DATED 20.6.2023 ISSUED BY THE RESPONDENT RESPONDENT ANNEXURES ## **Con.Case.(C).No.1188 of 2023 8** |Annexure-R1A|True copy of the report dated 4/4/2023| |---|---| |Annexure-R1B|True copy of the letter dated| ||19/04/2023 to the petitioner| |Annexure-R1C|True copy of the communication issued| ||by the panchayath dated 20.06.2023| |Annexure-R1D|True copy of the relevant portion of| ||the asset register| PETITIONER ANNEXURES |Annexure X|True copy of the building permit No.| |---|---| ||A2 125/5348/19/2019-20 dated 21.1.2020| ||and approved plan issued by the| ||respondent| |Annexure XI|True copy of the location sketch| ||issued by the Village| |Annexure XII|True copy of the report No. CPSP-1-| ||1146/2022/ERK dated 21.4.2022| ||submitted by the Unit IV, Vigilance| ||and Anti-Corruption Bureau, Eastern| ||Zone, Kottayam to the Police| ||Superintendent, Vigilance and Anti-| ||Corruption Bureau, Eastern Zone,| ||Kottayam| |Annexure XIII|True copy of the complaint No.| ||1146/2022/ERK dated 14.2.2022| |Annexure XIV|True copy of the letter No.| ||69113/E3/87/RD dated 22.6.1989 issued| ||by the Secretary to Government,| ||Revenue Department| |Annexure XV|PHOTOGRAPHS SHOWING THE STATE OF| ||AFFAIRS OF THE PETITIONER'S PROPERTY| ||ON THE EASTERN AND WESTERN SIDE OF THE| ||BUILDING| |Annexure XVI|TRUE COPY OF THE LOCATION SKETCH DATED| ||29.9.2018 ISSUED BY THE VILLAGE| **Con.Case.(C).No.1188 of 2023 9** ## OFFICER, VIJAYAPURAM RESPONDENT'S EXHIBITS Exhibit R1E True Copy of the certificate issued by the Village officer, Vijayapuram Village