Contempt Case (Civil) No. 720 of 2010

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HON'BLE THE CHIEF JUSTICE MRS. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **MONDAY, THE 14TH DAY OF JANUARY 2013/24TH POUSHA 1934** **Con.Case(C).No. 720 of 2010 (S)** **-------------------------------** ## **AGAINST THE ORDER/JUDGMENT IN WP(C).17794/2008 DATED 17-07-2009** **PETITIONER(S)/PETITIONER IN WPC: ---------------------------------** **C.K.RADHAKRISHNA PANICKER, AGED 50 YRS, S/O. KUMARAKURUP,CHAKKALA VADAKKATHIL,PONAKAM MURI THEKKEKKARA VILLAGE,MAVELIKARA.** **BY ADVS.SRI.P.B.SAHASRANAMAN SRI.K.JAGADEESH SRI.T.S.HARIKUMAR** ## **RESPONDENT(S)/4TH RESPONDENT IN WPC:** **------------------------------------------------------------------------** **RAMAKRISHNAN UNNITHAN, AGED ABOUT 79 YEARS,S/O. NARAYANAN UNNITHAN @ NARAYANAN THANKAL RESIDING AT ANIL BHAVANAM,PALLARIMANGALAM THEKKEKKARA,PRESIDENT,MULLIKULANGARA DEVI KSHETRA BHARANA SAMATHI,MAVELIKARA.** ## **BY ADV. SRI.G.SHRIKUMAR** **THIS CONTEMPT OF COURT CASE (CIVIL) HAVING BEEN FINALLY HEARD ON 14-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **MANJULA CHELLUR,C.J. & P.R.RAMACHANDRA MENON, J.** **= = = = = = = = = = = = = = = = Contempt Case No.720 of 2010** **= = = = = = = = = = = = = = = = = = = = = Dated this the 14th day of January, 2013** ## **JUDGMENT** ## **Manjula Chellur,CJ** This contempt petition is filed complaining disobedience of the directions given to respondents 1 to 3 in the writ petition. Heard learned counsel appearing for the petitioner/complainant in the contempt petition and Mr.G.Sreekumar, learned Senior Counsel appearing for the respondent-contemnor. 2. In order to understand whether any contempt is committed by the respondent-contemnor or not, one has to necessarily look into the facts right from the time of the judgment of the learned Single Judge in W.P.(C) No.17794/2008 dated 17.07.2009. It is not in dispute that the complainant as a writ petitioner approached the learned Single Judge complaining against the 4[th] respondent, a Committee which was managing the affairs of a temple that the 4[th] respondent has put up certain **Contempt Case No.720 of 2010** **2** constructions encroaching into the Government Puramboke, in particular road. During the course of proceedings, a suggestion was made by the Court whether the measurement of the properties should be directed, provided a notice of such inspection for measurement is given to the parties. It is also not in dispute that an undertaking came to be filed by the respondent-contemnor in the writ petition seeking measurement of the properties based on the details reflected in the settlement register by saying “old records”. The learned Single Judge has also referred to the details of the undertaking and ultimately passed the final order or direction which reads as under:- “Respondents 1 to 3 shall make arrangements to measure the property with notice to the petitioner as well as the 4[th] respondent. If on such measurement, it is found that the 4[th] respondent has encroached into the road puramboke, as agreed by the 4[th] respondent, they shall demolish the structure constructed by them in the road puramboke and give vacant possession of the same to respondents 1 to 3 without any objection whatsoever. If any other person is likely to be affected by the measurement, he/she shall **Contempt Case No.720 of 2010** **3** also be given notice. The above exercise shall be taken up and completed as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment.” 3. According to the complainant, as per the undertaking given by the respondent-contemnor, if any encroachment is found, the same would be demolished, but the undertaking was not complied with by the respondent, therefore this Court has to initiate action and deal with the respondent-contemnor in accordance with the procedure contemplated. 4. According to learned Senior counsel Mr.Sreekumar, though such an undertaking to demolish the encroached portion was given, but it was with a rider that, if the measurement was done on the basis of the old records (settlement register), then alone they were ready to demolish the encroached portion and not otherwise, i.e. if the measurement is not done in accordance with the settlement register, they are not liable to demolish the same. In order to understand the above direction in the judgment of the learned Single Judge, one has to necessarily refer to the proceedings in the Review Petition filed by the Temple in R.P.No.1081/2009. **Contempt Case No.720 of 2010** **4** 5. After referring to the last paragraph of the judgment in the Writ Petition, which we have already stated above, the learned Single Judge, while disposing of the Review Petition, opined that the petitioner cannot dictate as to how the Government land has to be measured i.e. placing its reliance on settlement register (old records). The learned single Judge further opined, the authentic records for the above said purpose being the re-survey records that alone should govern the issue and not on the basis of settlement register. Therefore, by virtue of the order in the Review Petition, it was made clear that the measurement of the properties need not be done on the basis of the settlement register as claimed by the contemnor and it cannot be dictated to the Government how it should be measured. Further said, re-survey records, being the authentic records, must also be looked into. 6. This again came to be challenged by the Temple in an appeal in W.A.No.2622/2009. Paragraphs 4,5,6 and 8 of the judgment are relevant. Paragraph 4 refers to the actual direction in the judgment. Paragraph 5 refers to the Review Petition. Paragraph 6 refers to the contentions and the materials **Contempt Case No.720 of 2010** **5** brought on records in the appeal. Paragraph 8 actually refers to the measurements reflected in the report of the Tahsildar. Ultimately, without modifying either the judgment of the learned Single Judge in the writ petition or the Review Petition, the appeal was disposed of giving directions at paragraphs 10 and 11 of the judgment which read as under:- 10. Learned senior counsel points out that the appellant has already approached the District Collector, Alappuzha and submitted Annexure XI representation highlighting its grievances and requesting for necessary action. It will be open to the appellant to pursue the remedy available to it in accordance with law. We make it clear that we have not considered the merit of the contentions raised by the parties in this appeal. 11. The Tahsildar shall ensure that copy of the report and sketch prepared by him are made available to the appellant as well as the writ petitioner within seven days from today. It shall be served on the parties under proper acknowledgment.” 7. It is brought on record that during the pendency of the Writ Appeal, based on the judgment of the learned Single Judge, measurements were already undertaken. Therefore those facts came to be reflected in the judgment of the Division Bench at **Contempt Case No.720 of 2010** **6** paragraphs 7,8,10 and 11 which are already referred above. Subsequent to the disposal of the Writ Appeal, the District Collector passed an order on 30.06.2011 that in the interest of natural justice and preservation of public peace and tranquility, it is just and reasonable to allow the prayer in the first reference petition, that is writ petition dated 7.9.2012 filed by the applicant i.e the Temple. Hence, a direction came to be issued to conduct the measurement based on old settlement register within 30 days from the date of receipt of a copy of the order dated 30.06.2011. 8. Then the District Collector had proceeded in accordance with the directions given in the Division Bench judgment as stated above. This order of the Collector was stayed in W.P.(C) No. 24140 of 2011 at the instance of the earlier writ petition of a private party. At this stage, the present contempt is placed before us. 9. Learned counsel appearing for the respondent relies upon the decision of the Supreme Court in **Babu Ram v. Sudhir Bhasin** ( AIR 1979 SC 1528). We have gone through it and the relevant portions which read as under :- **Contempt Case No.720 of 2010** **7** “....this decision clearly shows that even if there was an undertaking given by the counsel on behalf of his client the undertaking should be carefully construed to find out the extent and nature of the undertaking actually given by the person concerned. It is not open to the Court to assume an implied undertaking when there is none of the record. It was on this ground that this Court negatived the plea of contempt of court. It is well settled that while it is the duty of the court to punish a person who tries to obstruct the course of justice or brings into disrepute the institution of judiciary this power has to be exercised not casually or lightly but with that care and circumspection and only in such cases where it is necessary to punish the contemner in order to uphold the majesty of law and the dignity of the courts.... .......In fact, the reason why a breach of clear undertaking given to the court amounts to contempt of court is that the contemner by making false representation to the Court obtains a benefit for himself and if he fails to honour the undertaking he plays a serious fraud on the court itself and thereby obstructs the course of justice and brings into disrepute the judicial institution. The same cannot, however, be said of a consent order or a compromise decree where the fraud, if any, is practiced by the person concerned not on the court but on one of the parties. Thus, the offence committed by the person concerned is qua the part not qua the court, and, therefore the very foundation for proceeding for contempt of court is **Contempt Case No.720 of 2010** **8** completely absent in such cases. In these circumstances, we are satisfied that unless there is an express undertaking given in writing before the court by the contemner or incorporated by the court in its order, there can be no question of willful disobedience of such an undertaking.” 10. By virtue of paragraphs 10 and 11 in the judgment of the Division Bench, virtually there is a modification of the directions issued by the learned Single Judge by saying as the appellant has already approached the District Collector with a representation for necessary action, it will be open to the appellant to pursue the remedy available to it in accordance with law. Accordingly the appeal was disposed of. 11. Therefore, again we go back to the issue whether there is any contempt committed by the respondent-contemnor in this manner. Apparently, the judgment of the learned Single Judge and the review order got merged with the judgment of the Division Bench in the writ appeal. The judgment of the Division Bench was never challenged by the present complainant before the next higher Forum, therefore, it has reached finality so far as the earlier litigation between the parties as indicated in W.A.No.2622/2009. In other words, whatever the parties have to **Contempt Case No.720 of 2010** **9** discharge or exercise or function that must be in accordance with the directions given in the appeal and not with reference to the directions in the judgment of the learned Single Judge. In the absence of any direction in the appeal to rely upon any particular record, that is settlement record or resurvey record. As the only consideration was, the representation of the respondent-temple as appellant before the District Collector. The District Collector has given the liberty to proceed with the matter, that is to consider the representation and take necessary action. Therefore, virtually speaking there was no obligation on the part of the respondent-temple to oblige any of the directions, if at all, indicated in the judgment of the learned Single Judge or the order in review. All the parties to the proceedings are bound by the judgment and the directions in the Writ Appeal which has given a fresh cause of action to the writ petitioner in the later writ petition referred above on account of the proceedings of the District Collector being challenged. Subject to the result of the writ petition, it is always open to the parties to pursue further litigation or accept the judgment. Further course of action in accordance with the judgment of the **Contempt Case No.720 of 2010** **10** learned Single Judge that would be passed in the fresh writ petition pending before the learned Single Judge is available. Coming back to the question whether there is any contempt committed, from the materials placed above, in the facts and circumstances explained above, absolutely no contempt of any nature is committed by the respondent-contemnor. Therefore, contempt proceedings deserve to be dropped and accordingly dropped. ## **MANJULA CHELLUR, CHIEF JUSTICE** **P.R.RAMACHANDRA MENON, JUDGE** sj 15/1