K.A. Geevarghese v. T.G. Sen and Minu Raju Sebastian

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM MONDAY, THE 6[TH] DAY OF DECEMBER 2021 / 15TH AGRAHAYANA, 1943 CON.APP(C) NO. 1 OF 2021 AGAINST THE ORDER/JUDGMENT IN Con.Case(C) 956/2018 OF HIGH COURT OF KERALA** ## **APPELLANT:** K.A.GEEVARGHESE AGED 78 YEARS S/O.LATE K.J.ABRAHAM,KOCHAYYATH SANTHOSH BHAVANAM,KALIPARAMBIL THEKKETHIL,KUNNAM MURI,THAZHAKKARA VILLAGE, MAVELIKKARA,ALAPPUZHA DISTRICT. BY ADVS. V.B.NARAYANAN M.P.HARIKUMARAN PILLAI ## **RESPONDENTS:** 1 T.G.SEN (AGE FATHER'S NAME NOT KNOWN TO THE APPELLANT),CHIEF ENGINEER, PROJECT II IRRIGATION PREMISES, MUSEUM JUNCTION,THIRUVANANTHAPURAM-695001. 2 MINU RAJU SEBASTIAN, (AGE FATHER'S NAME TO KNOWN TO THE APPELLANT),EXECUTIVE ENGINEER,PUMPA,IRRIGATION PROJECT DIVISION,CHENGANNUR689121. BY ADVS. ABRAHAM P.GEORGE M.SANTHY SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER THIS CONTEMPT APPEALS (CIVIL) HAVING COME UP FOR ADMISSION ON 06.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **CON.APP(C) NO. 1 OF 2021 & WP(C) NO. 20306 OF 2018** ## **2** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **MONDAY, THE 6[TH] DAY OF DECEMBER 2021 / 15TH AGRAHAYANA, 1943** **WP(C) NO. 20306 OF 2018** ## **PETITIONER/S:** SAM JOHN AGED 56, S/O. GEEVARGHESE JOHN, PUTHENPALATHUTHEKKETHIL, KALLIMEL P.O, ALAPPUZHA DISTRICT. BY ADV SRI.V.PHILIP MATHEW ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF IRRIGATION,KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 THE DISTRICT COLLECTOR ALAPPUZHA - 688 001. 3 THE REVENUE DIVISIONAL OFFICER CHENGANNUR - 689 121. 4 THE EXECUTIVE ENGINEER PAMBA IRRIGATION PROJECT(PIP) DIVISION, CHENGANNUR, ALAPPUZHA - 689 121. 5 THE ASSISTANT EXECUTIVE ENGINEER PAMBA IRRIGATION PROJECT(PIP) DIVISION,KOZHENCHERRY, PATHANAMTHITTA DISTRICT - 689 641. 6 THAZHAKKARA GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, KALLIMEL P.O, MAVELLIKKARA - 690 509. **CON.APP(C) NO. 1 OF 2021 & WP(C) NO. 20306 OF 2018** **3** 7 K.A GEEVARGHESE AGED 77 YEARS AGED 77, S/O. K.J ABRAHAM, KOCHAYYATHU SANTHOSH BHAVAN,KUNNAM MURI, THAZHAKKARA VILLAGE, ALAPPUZHA DISTRICT - 690 108. 8 GEORGINA P. GEORGE PALLAVILAYIL, KOLLAKADAVU P.O, CHENGANNUR - 690 509. 9 SALBY JOHN S/O LATE GEEVARGHESE JOHN, PUTHENPALATHU THEKKETHIL, KALLIMEL P.O., ALAPPUZHA DISTRICT. 10 ISSAC JOHN S/O GEEVARGHESE JOHN, PUTHENPALATHU THEKKETHIL, KALLIMEL P.O., ALAPPUZHA DISTRICT. 11 THE CHIEF ENGINEER PROJECT II, IRRIGATION PREMISES, MUSEUM JUNCTION, THIRUVANANTHAPURAM. BY ADVS. GOVERNMENT PLEADER SRI.R.PADMAKUMAR SRI.V.B.NARAYANAN SMT.BINDU GEORGE SRI.M.P.HARIKUMARAN PILLAI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **CON.APP(C) NO. 1 OF 2021 & WP(C) NO. 20306 OF 2018** **4** ## **ALEXANDER THOMAS & VIJU ABRAHAM, JJ. ===================================** ## **CON.APP(C) NO. 1 OF 2021** _(arising out of the order dated 03.03.2021 in Con.Case © No.956 of 2018 (S) in WP(C) No.36675/2017)_ ## **& WP(C) No.20306/2018** **========================================= Dated this the 6[th] of December, 2021** ## **J U D G M E N T** ## **Alexander Thomas, J.** Since these matters are interrelated, these matters are disposed of on the basis of a common judgment. ## **CON.APP(C) NO. 1 OF 2021** The above Con.Case (C) No. 956 of 2018 has been instituted by the petitioner in WP(C) No.36675/2017 alleging non-compliance of the directions and orders passed by this Court in the judgment dated 29.01.2018 rendered by the learned Single Judge of this Court in the above said WP(C) No.36675/2017. 2. The learned Single Judge after hearing both sides has rendered the impugned judgment dated 03.03.2021, closing the above Contempt Case, taking note of the fact that WP(C) No.20306/2018 has been filed by a 3[rd] party and that the same is pending and certain interim orders are also passed therein and that it is for the petitioner in the Contempt Case to take up all contentions available to him in those writ proceedings and that there **CON.APP(C) NO. 1 OF 2021 & WP(C) NO. 20306 OF 2018** **5** is no necessity for the continuing the above said Contempt of Court case arising of the earlier WP(C) No.36675 of 2017. 3. Aggrieved by the above said judgment dated 03.03.2021 rendered by the learned Single Judge, closing the above Contempt of Court case No.956/2018, the petitioner in the said Contempt of Court case has filed the instant Contempt Appeal under Section 19 of the Contempt of Court's Act, read with Section 5(i) of the Contempt of Court Act. 4. Heard Sri.V.B.Narayanan, learned Counsel appearing for the appellant in the Contempt Appeal, Sri.Saigi Jacob Palatty, learned Sr.Government Pleader appearing for R1, (Chief Engineer) and Sri.Abraham George, learned Advocate appearing for R2. 5. The appellant herein has filed the afore captioned WP(C) No.36675/2017 with the following prayers. _“(1) Issue a writ of mandamus or any other appropriate writ or order directing the respondents to immediately demolish the illegal construction. ii. Issue a writ of mandamus or any other appropriate writ or order directing the respondents to restore the then existed 4'' R.C.C. slab._ _(ii). Issue a writ of mandamus or any other appropriate writ or order directing the respondents to direct the illegal occupants to comply with the Exhibit P13 order, as laid down in 2nd respondents letter dated 25/10/2017 as well as in Exhibit P6 and Exhibit P10._ _(iii). Issue a writ of mandamus or any other appropriate writ or order directing the respondents to prosecute the illegal occupants, who have illegally occupied Govt. land, under provisions of appropriate Land Conservation Act v. Any other direction or order in the facts and circumstance of the case.”_ **CON.APP(C) NO. 1 OF 2021 & WP(C) NO. 20306 OF 2018** **6** 6. In the above matter, the respondent Chief Engineer had earlier submitted letter No.PG2-4205/2017 dated 25.10.2017 addressed to the Secretary to Government, Water Resources Department, Government Secretariat, Thiruvananthapuram with a copy to the appellant making certain proposals therein and the contents of the said letter dated 25.10.2017 reads as follows: “ വവിഷയയ: പവി.ഐ.പവി കനനാൽ വക സ്ഥലയ കയയ്യേറവി . അനധവികകൃതമനായ സനാബബ് നവിർമവിച്ചതബ് സയബനവിച് സസൂചന: 1. പവിറവയ, യപപനാജകബ്ടബ് സർകവിൾ, സസൂപപണവിയഗബ് എഞവിനനീയററുടട 27.09.2017 ടല E6-2012-2017 നമ്പർ കതബ്. 2. 13. 06.2017- . ടക. . ാനായ തനീയതവിയവിടല പശനീ എ വർഗനീസവിടന പരനാതവി 3. 21.06.2017- . . അയപക ാനായ തനീയതനീയവിടല പവി ജവി യജനാണവിടന . സസൂചനയവിയലയബ്കബ് അങ്ങയറുടട പശദ കണവികറുനറു പശനീ.സനായ യജനാൺ എന വവ്യകവി 16.10.2008-ൽ യകനാൺപകനീറബ് സനാബബ് നവിർമവികറുനതവിനബ് അയപക നൽകവിയവിരറുനറു, എനനാൽ 27.02.2008-ൽ അഡഡ.ടക.എ.ഗനീവർഗനീസബ് (ടവി നവിർമവിതവിയയനാടബ് യചർനബ് വസബ്തറു വകകൾ ഉള്ളയനാൾ) എന വവ്യകവി മറചള്ളവർകബ് പപയവശവികനാവറുന തരതവിൽ ടപനാതറുവഴവിയനായവി മനാപതയമ അയപക . അനറുവനാദയ ടകനാടറുകനാവറു എനബ് നൽകവിയവിടചണബ് ആയതവിനനാൽ ടവി വവ്യകവികൾ തമവിൽ തർകയ . നവിലനവിൽകറുനറുടവനറുയ ആയതവിനബ് അനറുമതവി നൽകവിയവിടവില - കസൂടനാടത ടചങ്ങനസൂർ ഡവിവവിഷനറു കനീഴവിൽ അനധവികകൃത നവിർമനാണയ നടതരറുടതനബ് നവിർയദ്ദേശവിച് ടകനാണബ് 17.04.2017 കതബ് . നൽകവിയവിടചണബ് എനനാൽ ടവി അറവിയവിപബ് മറവികടനബ് അവധവി ദവിവസങ്ങളവിൽ നവിർമനാണയ നടതറുകയറുയ ആയതബ് നനീകയ ടചയ്യേണടമനബ് അറവിയവിച്ചബ് 17.06.2017 ൽ വനീണറുയ യനനാടനീസബ് നൽകറുകയറുയ ആയതബ് പശനീ,ഐസകബ് യജനാൺ (സജവി), പശനീ.സനായ . യജനാൺ എനവിവർ കകപറവിയവിടചള്ളതറുമനാണബ് ടവി നവിർമനാണതവിൽ . . നവിലവവിലറുണനായവിരറുന ആർ സവി സവി സനാബവിനബ് മറുകളവിലനായവി ദവിശമനാറവി കയയ്യേറകനാർകബ് മനാപതമനായവി ഉപയയനാ ഗവികനാവറുന . രനീതവിയവിലറുയ ആണബ് സനാബബ് നവിർമവിച്ചവിടചള്ളതറുയ അകനാരണതനാൽ - തർകയ . ടപനാതറു ജനവറുയ കയയ്യേറകനാർ തമവിലറുയ നവിലനവിനവിരറുനറു . പശനീ ഗനീവർഗനീസബ് യജനാണവിടന മകളനായളനായ പശനീ.സനാൽവവി യജനാൺ, പശനീ.സനായ യജനാൺ, പശനീ.ഐസകബ് യജനാൺ (സജവി) എനവിവരറുടട അറവിയവനാടടയനാണബ് അനധവികകൃത നവിർമനാണവറുയ നടതവിയവിടചള്ളതറുയ സമനീപപപയദശങ്ങൾ ഇവരറുടട യപരവിലറുള്ളതനാണബ്. ആയതവിനനാൽ കയയ്യേറകനാരറുടട ടചലവവിൽ തടന സനാബബ് ടപനാളവിച്ചബ് നനീകയ ടചയബ്തബ് പസൂർവ്വ സ്ഥവിതവിയവിൽ ആകറുനതവിനറുയ, ആവശവ്യമനായ അനറുമതവി വനാങ്ങവിയതവിനറു യശഷയ ടപനാതറുജനങ്ങൾകറുയ ഗതനാഗതതവിനറുയ ഉപകരവികറുന വവിധതവിൽ യകനാസവിയഗബ് സനാബബ് നവിർമവികറുനതവിനറുള്ള നവിരനായകപ **CON.APP(C) NO. 1 OF 2021 & WP(C) NO. 20306 OF 2018** **7** പപതയ നൽകനാവറുനതനാണബ്. ഈ വവിവരങ്ങൾ അങ്ങയറുടട അറവിവവിയലകറുയ തറുടർനടപടവികൾകനായറുയ സമർപവികറുനറു.” 7. The above said letter dated 25.10.2017 has been produced and marked as Ext.P13 in the above said WP(C) No.36675/2017. The learned Single Judge has rendered the judgment dated 29.01.2018 disposing of WP(C) No.36675/2017, and the said judgment dated 29.01.2018 in that WP(C) reads as follows: “Petitioner owns and possesses 16 Ares of property along with structures situated therein, comprised in Re-sy No.459/10 in Kallimel ward of Vettiyar Village, Mavelikkara Thaluk, by virtue of Sale Deed No.628/1968 dated 12.2.1968 of SRO, Mavelikkara. A portion of petitioner's property was acquired by Government for P.I.P sub-canal, and as a result, the approach road to the petitioner's property was cut. According to the petitioner, in spite of the earnest efforts of the petitioner, the subject matter is not attaining finality even though various communications are issued by the respective statutory authority interdepartmentally. Any how Ext.P13 is a communication dated 25.10.2017 addressed by the Chief Engineer to the Government Secretary, Water Resource Department with a copy to the petitioner, from which it is found that, necessary alteration can be carried out after securing necessary permission SO as to ventilate the grievances of the petitioner. According to the petitioner, petitioner would be satisfied, if a direction is issued to attain finality to the proceedings initiated pursuant to the complaint made by the petitioner. 2. Having heard learned counsel for petitioner and learned Government Pleader, there will be a direction to respondents 2 and 3 to take a decision in the subject matter relating to Ext.P13 order passed by the Chief Engineer dated 25.10.2017 and attain finality within two months from the from the date of receipt of a copy of this judgment. Writ petition is disposed of accordingly.” 8. Hence it can be seen that the learned Single Judge in the above said judgment in WP(C) No.36675/2017 has noted the contents of the above said Ext.P13 letter dated 25.10.2017 issued by the respondent Chief Engineer, wherein certain proposals have been made and all what has been directed by the learned Single Judge in the said Judgment is that R2 and R3 therein, namely the Chief Engineer and the Executive **CON.APP(C) NO. 1 OF 2021 & WP(C) NO. 20306 OF 2018** **8** Engineer will take a decision in the subject matter relating to Ext.P13 order passed by the Chief Engineer on 25.10.2017 and attain finality thereto, within two months. Hence it can be seen that the main direction issued by the learned Single Judge in the above said judgment is that the above said proposal referred to by the respondent Chief Engineer in the above said Ext.P13 letter dated 25.10.2017 should be considered for finalization namely as to whether the said proposal is to be implemented or whether it should be modified or whether it is to be withdrawn in part or full etc. (The above said letter dated 25.10.2017 issued by the Chief Engineer will be referred for convenience as Ext.P13 since the same has been produced as Ext.P13 in WP(C) No.36675/2017 even though the said document has not been produced as a separate document in this Contempt Appeal.) These are all matters which are fully within the domain and province of the respondent Chief Engineer. The Contempt of Court case has been filed alleging that the respondent Chief Engineer and the respondent Executive Engineer has not complied with the above said judgment dated 29.10.2018 rendered by the learned Single Judge in WP(C) No.36675/2017. 9. The learned Single Judge while entertaining the above Contempt of Court case No.956/2018 arising out of WP(C) No.36675/2017 has noted that another writ proceedings have been initiated by a third party as WP(C) No.20306/2018 and the said third **CON.APP(C) NO. 1 OF 2021 & WP(C) NO. 20306 OF 2018** **9** party/petitioner in WP(C) No.20306/2018 is the third party named in the aforesaid Ext.P13 letter dated 29.10.2017. In the said WP(C) No.20306/2018, certain interim orders were passed by this Court and later on, these orders have been modified or vacated. Therefore, there are no interim orders now pending in WP(C) No. 20306/2018, which would in any manner stand in the consideration of this Contempt Appeal on merits. WP(C) No.20306/2018, is pending and with the consent of all parties concerned, the said WP(C) No.20306/2018 has also been posted alongwith this Contempt Appeal. Moreover, the above said COC No.956/2018, has been heard by the learned Single Judge alongwith WP(C) No.20306/2018. We are also apprised that the learned Single Judge by earlier entertaining COC No.956/2018 had passed an order on 04.09.2018 directing that Registry may secure orders of the Hon'ble Chief Justice as to posting the said contempt case along with WP(C) No.20306/2018 and it appears in the case papers that approval has been given thereto. Hence the above said COC No.956/2018 has been heard by the learned Single Judge alongwith WP(C) No.20306/2018 and since the present Contempt Appeal is the continuation of the above said Contempt Case, the Contempt Appeal has also been posted alongwith WP(C) No.20306/2018. 10. Now the learned Single Judge has found as per the impugned judgment rendered on 03.03.2021 in COC No.956/2018 that the **CON.APP(C) NO. 1 OF 2021 & WP(C) NO. 20306 OF 2018** **10** contempt proceedings need not be continued and may be closed with liberty to the petitioner to raise all contentions available to him in law on the pending WP(C) No.20306/2018 etc. The main issue before us is as to whether there is any deliberate or contumacious disobedience of the directions issued by the learned Single Judge as per the judgment dated 29.01.2018 in WP(C) No.36675/2017. As indicated herein above, the learned Sr. Government Pleader, on the basis of instructions of the respondent Officials has submitted that the complaint of the petitioner is that a unauthorized concrete slab has been placed by the above said 3[rd] party Sri.Sam John (petitioner in WP(C) No. 20306/2018) over and above the existing foot Bridge across the irrigation canal. Further the specific complaint raised by the present petitioner as noted in the above said Ext.P13 letter dated 25.10.2017 and that the specific complaint raised by the petitioner herein as noted by the respondent Chief Engineer in the above said Ext.P13 letter dated 25.10.2017 is that the said Sri.Sam, has constructed the above said concrete slab in such a manner that his right of use can be availed only by person like him and not for a person like the petitioner who needs such access for getting into his property and that the properties of both the petitioner herein and the said Sam John are adjoining neighboring properties. Further that though the said Sam John had sought for permission of the Department for constructing the above said concrete slab, he has unilaterally taken steps **CON.APP(C) NO. 1 OF 2021 & WP(C) NO. 20306 OF 2018** **11** to construct the same unauthorizedly without permission and that the same should be demolished etc. Hence it can be seen that the main complaint raised by the petitioner herein is that he apprehends that if permission is granted by the Department to Sri.Sam John to construct the above said concrete slab over and above the existing foot path of smaller width, then he is taking steps to do it in such a manner that the same can be availed only by persons like him and not by persons like the petitioner. Hence it can be seen that the main complaint of the petitioner herein as noted in the above said Ext.P13 by the respondent Chief Engineer is that if Sri.Sam John is given permission by the Department to construct the above said concrete slab for the irrigation canal, then he will do it in such a manner that it will block the right of pathway of the petitioner herein. We are making this observation only on the basis of the factual allegations recited in the abovesaid Ext.P13. At the outset, since the above contempt appeal has been heard alongwith WP(C) No.2036/2018 filed by the abovesaid Sri.Sam John, we pertinently queried to Sri.V.Philip Mathews, learned Counsel appearing for the petitioner in WP(C) No.20306/2018 as to whether his party proposes to oppose or obstruct the right of access of pathway of the petitioner herein to use the above said concrete slab across the irrigation canal. Sri.V.Philip Mathews, learned counsel appearing for the petitioner in WP(C) No.20306/2018 would fairly submit and that too on the basis of **CON.APP(C) NO. 1 OF 2021 & WP(C) NO. 20306 OF 2018** **12** instructions of his party that his party will not cause any obstruction to any party including the present petitioner to use the above said concrete slab as a pathway across the irrigation canal provided it is being used only for access to their respective private properties and not for trespassing into the private property of his client. We need not get into any other aspects of the matter except to record the above said submission made by the counsel for the petitioner in WP(C) No.20306 of 2018. We are mainly concerned as to whether there is any deliberate and contumacious disobedience on the part of the respondent Officers so as to entertain the Contempt Appeal. Sri.Saigi Jacob Paletty, learned Sr.Government Pleader appearing for the respondent Chief Engineer would submit on the basis of instructions that earlier, the respondent Engineers had considered the option of demolishing the above said concrete slab inasmuch as the same has been constructed by the above said Sri.Sam John, without getting permission of the Department and even when his application for permission was pending. While examining that application it was found that the demolition of the said concrete slab cannot be done by a JCB and it requires very hard and arduous efforts and even the same can be done only by a JCB with a breaker which will be very expensive. Further the Engineers were convinced that if the existing concrete slab is demolished with a JCB with a breaker etc, then it will damage the existing foot bridge which is underneath the concrete slab **CON.APP(C) NO. 1 OF 2021 & WP(C) NO. 20306 OF 2018** **13** and moreover it is also likely to detrimentally affect the existing walls of the irrigation canal which are quite aged. It is on this account that the respondent Engineers were not in a position to demolish the existing concrete slab. So the issue is as to whether the said action on the part of the respondent Engineers in not demolishing the existing concrete slab would amount to a deliberate and contumacious disobedience of the directions issued by the learned Single Judge in WP(C) No.36675/2017. By no strength of imagination are we in a position to hold that in view of the above said submission, the respondent Engineers have deliberately or contumaciously disobeyed the directions of the learned Single Judge in the judgment in WP(C) No. 36675/2017. That apart, there is a very important perspective in this matter, that is this Court has never directed the respondent Chief Engineer to necessarily implement the proposal in the abovesaid Ext.P13 letter dated 25.10.2017 at any cost. All what has been directed by the learned Single Judge in the above WP(C) is that after having noted the contents of the above Ext.P13 letter, the learned Single Judge has observed that respondents 2 & 3 therein (Chief Engineer and the respondent Executive Engineer) will take a decision in the subject matter relating to the abovesaid Ext.P13 dated 25.10.2017 and attain finality thereto within two months. Therefore full liberty and discretion has been governed to the respondent Chief Engineer and the **CON.APP(C) NO. 1 OF 2021 & WP(C) NO. 20306 OF 2018** **14** respondent Executive Engineer to consider the said proposal at Ext.P13 and then take an ultimate decision as to the modality for taking finality to the proposal at Ext.P13. In otherwords, the respondent Chief Engineer and the respondent Executive Engineer, after applying their mind to the abovesaid proposal at Ext.P13, if they are convinced that the said proposal be finalized, then they should go ahead, including the option of demolition of the concrete slab or they have full liberty to withdraw from the said proposal, either partially or fully after modifying the same. 11. We are told by the learned Sr.Government Pleader that the instructions of the Executive Engineer and the other Engineers in the Department has revealed that the abovesaid concrete slab has been placed only above an existing footbridge over the irrigation canal and the said existing footbridge was already installed by the Irrigation Department and that the abovesaid footbridge which is now covered by a concrete slab is being used as a pathway, not only by the petitioner herein to have access to his property, but also by the above said petitioner in WP(C) NO.20306/2018 and a few other private individuals who need the said pathway for access to their respective private properties. Further that in view of the serious problems confronted by the Department, if the concrete slab is demolished, they **CON.APP(C) NO. 1 OF 2021 & WP(C) NO. 20306 OF 2018** **15** are of the firm opinion that other options should be examined, especially taking into account the abovesaid factors as well as taking note of the access being used by a lot of private individuals including the present petitioner and the petitioner in WP(C) NO.20306/2018 and other individuals. In the light of these aspects, we are of the firm view that the continuance of the contempt proceedings, will not be proper and right and the learned Single Judge cannot be found fault with in having concluded in the impugned judgment rendered on 03.03.2021, to close the contempt proceedings etc. We are arriving at the same conclusion of the learned Single Judge, but though, on entirely different grounds as stated above. However, the issue regarding the formal compliance of the directions issued by the learned Single Judge as per the judgment dated 29.01.2018 in WP(C) NO.36675/2017 remains. In other words, the respondent Chief Engineer and the respondent Executive Engineer will have to take things to a logical conclusion as to consider the proposal at Ext.P13 and then decide on the other options available to them in accordance with law, after hearing the parties concerned. We are also apprised that the local Grama Panchayat has also passed a resolution at Ext.P13 in WP(C) NO.20306/2018 that the existing concrete slab may not be demolished by the Irrigation Department. **CON.APP(C) NO. 1 OF 2021 & WP(C) NO. 20306 OF 2018** **16** We record the stand of the respondent Chief Engineer and the respondent Executive Engineer that according to their considered and professional assessment and decision, they are not in a position to take recourse to the first option of demolition of the concrete slab. However we note the apprehension raised by Sri.V.B.Narayanan, learned Counsel appearing for the present appellant that the concrete slab if retained, should be put in such a manner, so that the right of access of pathway of the appellant is not in any manner hampered or restricted and that the respondent Engineers are bound to take steps in accordance with the sketch said to have been prepared by the Executive Engineer. We need not get into the feasibility of those matters and that those are matters within the domain and province of the competent and professional Engineers of the Irrigation Department. To ensure the compliance of the directions in the judgment dated 29.01.2018 rendered by the learned Single Judge in WP(C) NO.36675/2017, it is ordered that the respondent Chief Engineer will immediately get a report of the matter from the respondent Executive Engineer or any other competent Engineer of the Irrigation Department. If site inspection has already been done by the competent Engineer of the Irrigation Department, then the report may be furnished by the competent Engineer on the basis of the site inspection already conducted by him/her. If an effective site inspection **CON.APP(C) NO. 1 OF 2021 & WP(C) NO. 20306 OF 2018** **17** has not so far been done, then such a site inspection may also be done so that the report should contain up to date details. The report as above should be furnished either by the Executive Engineer or any other competent Engineer of the Irrigation Department to the respondent Chief Engineer within three weeks from the date notified for receiving the certified copy of this judgment. Copy of the said report should be given by the respondents to both the appellant herein as well as the petitioner in WP(C) NO.20306/2018, as well as the other neighboring property owners who are said to have right of access of the concrete slab as well as to the local gramapanchayat. Thereafter the respondent Chief Engineer will give reasonable opportunity of being heard to all the above said parties concerned and after due assessment may take an appropriate decision in the matter as to what are the other options available to him. In that process, it may be ensured that the right of access of all the private individuals who genuinely require the right of access of the concrete slab to go to their respective private properties should be duly taken into account and if any specific grievances are pointed out by the appellant herein, then those aspects may also be considered and if any steps can be taken by the Department, without involving huge expenditure of money, the same may also be considered. Learned Sr. Government Pleader submits on the basis of instructions from the respondent Chief Engineer and the **CON.APP(C) NO. 1 OF 2021 & WP(C) NO. 20306 OF 2018** **18** respondent Executive Engineer that a protective wall can be constructed adjacent to the Irrigation canal so as to ensure the smooth ingress and egress through the concrete slab to the property of the appellant. Sri.V.B.Narayanan. The learned Counsel appearing for the appellant submits that this Court may direct the respondents to ensure that such measure as suggested by them is done without any further delay. After hearing all the parties, the 1[st] respondent Chief Engineer may take appropriate decision on the construction of protective wall and pass proceedings in that regard without much delay, preferably within a period of two months from the date of receipt of a certified copy of this judgment. Decision in the above regard If that be so, we make it clear that the respondents will be at liberty to carryout any such step so as to ensure that not only the appellant but also all others who genuinely need so are duly protected. Hence we find to ground to interfere with the conclusions of the learned Single Judge in closing the contempt case. With these observations and directions the above contempt Appeal will stand dismissed. ## WP(C) NO.20306/2018 Sri.V.Philip Mathews, learned Counsel appearing for the petitioner **CON.APP(C) NO. 1 OF 2021 & WP(C) NO. 20306 OF 2018** **19** in WP(C) NO.20306/20benevated18 would submit on the basis of instructions from his party that in view of the directions and orders passed by this Court in the above Contempt Appeal, this Petition may be closed without prejudice to any of the contentions of the petitioner herein and also with liberty to him to initiate appropriate remedies in the manner known to law. Recording the abovesaid submissions of the petitioner and without prejudice to his contentions and with liberty to him to initiate appropriate remedies in the manner known to law, the above WP(C) will stand dismissed as not pressed. Sd/- ## **ALEXANDER THOMAS** **JUDGE** **Sd/-** **VIJU ABRAHAM JUDGE** Nsd **CON.APP(C) NO. 1 OF 2021 & WP(C) NO. 20306 OF 2018** **20** ## **APPENDIX OF CON.APP(C) 1/2021** PETITIONER ANNEXURES Annexure A TRUE COPY OF THE INTERIM STAY ORDER DTD.20-72018 Annexure B TRUE COPY OF THE ORDER DATED 31.7.2018 IN I.A.NO.13057/2018 IN W.P(C)NO.20306/2018(K). **CON.APP(C) NO. 1 OF 2021 & WP(C) NO. 20306 OF 2018** **21** ## **APPENDIX OF WP(C) 20306/2018** PETITIONER EXHIBITS EXHIBIT P1 COPY OF SETTLEMENT DEED NO.536/16 DATED 06-042016. EXHIBIT P2 COPY OF LAND TAX RECEIPT DATED 01-01-2018. EXHIBIT P3 PHOTOGRAPH SHOWING THE CONCRETE SLAB CONSTRUCTED BY THE PETITIONER OVER THE EXISTING CONCRETE SLAB. EXHIBIT P4 COPY OF REPRESENTATION DATED 21-06-2017 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT. EXHIBIT P5 COPY OF NOTICE DATED 11-09-2017 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P6 COPY OF PLAINT IN O.S NO.308/2015. EXHIBIT P7 COPY OF PLAINT IN O.S NO.187/2017. EXHIBIT P8 COPY OF REPRESENTATION DATED 16-05-2018 SUBMITTED BY THE PETITIONER BEFORE THE SECOND RESPONDENT. EXHIBIT P9 COPY OF RECEIPT DATED 16-05-2018 ISSUED FROM THE OFFICE OF THE SECOND RESPONDENT. EXHIBIT P10 COPY OF NOTICE DATED 21-05-2018 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER. EXHIBIT P11 COPY OF JUDGMENT DATED 29-01-2018 PASSED BY THIS HON'BLE COURT IN WP(C) NO. 36675/2017. EXHIBIT P12 COPY OF ROUGH SKETCH PREPARED BY THE PETITIONER SHOWING THE CONCRETE SLAB CONSTRUCTED BY THE PETITIONER. EXHIBIT P13 COPY OF DECISION NO.30 DATED 11-05-2018 TAKEN BY THE COMMITTEE OF THE THAZHAKKARA GRAMA PANCHAYAT ALONG WITH COVERING LETTER DATED 18-05-2018. EXHIBIT P14. COPY OF THE POSTAL RECEIPT DATED 12/6/2018 EVIDENCING SENDING OF EXHT.R4(B).