NICHOLAS P. DIAS Vs. M. K. ABOOBACKER

JUDGEMENT

(1.) The contempt case has been filed alleging violation of the interim order dtd. 13/5/2022, passed in WP(C) No.15611/2022 by the 5th respondent in the writ petition. The writ petition was filed by the 1st respondent seeking directions to the respondents 2 to 4 in the writ petition to provide necessary and meaningful protection to the writ petitioner and his workers, proposed to be engaged to pave the interlocking tiles in the pathway over which the 5th respondent had been given a right of user. On 13/5/2022, this Court permitted the petitioner to fill up the potholes in the road, which was being objected to by the 5 th respondent on the reason that their properties are likely to be flooded. This Court recorded the submission that the level of the road is not being increased and permitted filling up of the potholes with a further direction to the 4th respondent in the writ petition to oversee and ensure that nothing is done in a way that can cause flooding of the properties of the respondents. The allegation in the contempt case is that the 2nd respondent in the contempt case did not oversee and ensure that the work is done as directed by this Court and that the 1st respondent who is the writ petitioner had laid the road and under the said pretext also filled up a drainage canal which was in existence all along the eastern side of the road and thereby obstructed the drainage system. The specific allegation in the contempt case is that a drainage canal existed along the east side of the road connecting the PWD drainage canal situated on the side of the Edappally - Pukkattupady road. Pending the contempt case, the writ petition has been disposed of by judgment dtd. 16/8/2022 [Annexure R1(w)], leaving open the contention of the petitioner herein that the paving of the road is not done as provided in Ext.P28 produced in the said writ petition.

(2.) A counter affidavit has been filed by the 1 st respondent alleging that the averments in the contempt case are false. The counter affidavit details several litigations that have taken place between the parties after the purchase of the property by the petitioner herein from the mother of the 1 st respondent in 1991, including details of the pending litigation. After the filing of the counter affidavit, this Court by Annexure R1(x) judgment dtd. 19/6/2023 disposed of writ petition Nos.35181/2015, 17964/2016, 701/2017, 19920/2019, 12888/2020, 12446/2022 and 3448/2023 with a direction to the Secretary of the Municipality to consider the request concerning commercial occupancy of the construction effected by the petitioners therein as per law, without objecting about the structural plan and the road widening of Edappally - Pukkattupady road proposed in the same. The 1 st respondent has produced photographs of the present state of the road in question, which has been completed with tiles. Regarding the falsity of the claim that there was a drain existing, the 1 st respondent has produced as Annexure R1(f), a copy of the plaint in O.S.No.142/2021 filed by the petitioner herein. The prayer in the suit was for an injunction restraining the defendants from obstructing the use of the road by the plaintiffs therein, from parking vehicles on the road, and from raising the level of the road by laying paver tiles without providing drainage. The averments in the suit would show that even according to the petitioner herein the road was a mud road lying at the same level as plaint A schedule property and that the rainwater from the plaint A schedule property was being drained through the road to the public drain situated on the side of Edappally - Muvattupuzha road. It is specifically averred that the plaintiffs came to know that the defendants intended to lay paver tiles without providing drainage. The averment would show that there was no existing drain in the road, and the water was being drained through the road to the public drain on the side of Edappally - Muvattupuzha road. Since the prayer itself was to provide drainage, the contention in the counter affidavit that the petitioner has not approached this Court with clean hands and has mentioned wrong facts cannot be brushed aside. In the additional affidavit filed by the petitioner, it was sought to be put forward that in Annexure R1(w) judgment, the Court had stated that paving of tiles had not been done as per Ext.P28 report. The counsel for the 1 st respondent pointed out that the said averment was also not true, since this Court had never entered into any finding regarding the correctness or otherwise of the paving of the tiles. In the said circumstances, the petitioner has filed I.A.No.3/2023 praying for permission to correct the averment in the additional affidavit.

(3.) In this contempt case, the Court is only concerned with whether there is any willful disobedience of the directions of this Court in the interim order. This Court had only permitted the 1 st respondent to complete the paving of tiles under the supervision of the 2 respondent. Going through the pleadings in the case, I do not find any case of willful disobedience. The 1 st respondent has only completed the work undertaken. The writ petition itself has also been disposed of. The counsel for the 1 st respondent submits that the contempt case itself is another harassment added to the harassment by filing several writ petitions earlier, and that, since the petitioner has approached this Court by stating falsities, necessary action should be taken. Even though I find that the documents do not support the averments in the contempt case, regarding the existence of the drainage, and that the said averment is against the pleadings made by the petitioner in other civil proceedings, I do not propose taking the matter further and initiating action. I would rather treat it as an overstatement of the case.