Disposed

Saji Thomas v. V.V. Vimal

Kerala HC30 Oct 2023Con.Case(C)/1707/2023

Case brief

AI extract

What is this about?

The court disposed of a contempt petition for non-compliance of a direction to restore goods to a site and a review petition. It found the goods had been sold and melted, making compliance impossible. It directed the contempt respondent to furnish security in the pending suit and ordered departmental action against the Assistant Commissioner of Police.

What did the court decide?

Liberty to seek amendment and claim damages in the pending suit; direction to respondent No.3 to furnish security in the pending suit; direction to District Police Chief to take departmental action ag

Saji Thomas Vs V.V. Vimal — Contempt of Court | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE AMIT RAWAL &

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THE HONOURABLE MRS. JUSTICE C.S. SUDHA

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MONDAY, THE 30^TH DAY OF OCTOBER 2023 / 8TH KARTHIKA, 1945 CON.CASE(C) NO. 1707 OF 2023

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AGAINST THE JUDGMENT DATED 10.04.2023 IN WA 744/2023 OF HIGH COURT OF KERALA

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PETITIONER/APPELLANT/1ST RESPONDENT:

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SAJI THOMAS S/O. THOMAS, AGED ABOUT 52 YEARS, KANDATHIL HOUSE, KUTHIRAN, VANIYAMPARA, PATTIKKAD TALUK, THRISSUR DISTRICT-680 652

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BY ADVS. P.R.VENKATESH LAKSHMI MEENAKSHI P.R.

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RESPONDENTS/RESPONDENTS 3, 4 & PETITIONER:

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1 V.V. VIMAL

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DATE OF BIRTH AND FATHER'S NAME NOT KNOWN, SUB INSPECTOR OF POLICE (SHO), PEECHI POLICE STATION, THRISSUR DISTRICT, PIN – 680652.

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2 P.C. SURESH DATE OF BIRTH AND FATHER'S NAME NOT KNOWN, DEPUTY SUPERINTENDENT OF POLICE, (ASST COMMISSIONER OF POLICE) OLLUR, THRISSUR DISTRICT., PIN – 680006. 3 RAMACHANDRAN TR S/O. RAMAKRISHNAN NAIR, AGED 35 YEARS, THACHOLI HOUSE, KARIMBA P.O., PALAKKAYAM VILLAGE, MANNARKKAD TALUK, PALAKKAD DISTRICT, PIN – 678597.

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*ADDL R4 MR.RATHEESH FORMER SHO, PEECHI POLICE STATION, THRISSUR DISTRICT - 680 652.

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*ADDL R5 MR.BIBIN B.NAIR FORMER SHO, PEECHI POLICE STATION, THRISSUR DISTRICT - 680 652. ***** ADDL.R4 & R5 ARE SUO MOTU IMPLEADED AS PER ORDER DATED 14/09/2023 IN COC 1707/23.

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C.O.C.No.1707 of 2023 & R.P.No.919 of 2023

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SR. GP SRI JUSTIN JACOB

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THIS REVIEW PETITION HAVING COME UP FOR FINAL HEARING ON 30.10.2023, ALONG WITH RP.919/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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C.O.C.No.1707 of 2023 & R.P.No.919 of 2023

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE AMIT RAWAL

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THE HONOURABLE MRS. JUSTICE C.S. SUDHA

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MONDAY, THE 30^TH DAY OF OCTOBER 2023 / 8TH KARTHIKA, 1945

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RP NO. 919 OF 2023

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AGAINST THE JUDGMENT DATED 10.04.2023 IN WA 744/2023 OF

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HIGH COURT OF KERALA

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REVIEW PETITIONERS/RESPONDENTS 3 & 4 IN W.A.:

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1 THE SUB INSPECTOR OF POLICE, PEECHI POLICE STATION, THRISSUR DISTRICT, PIN – 680652.

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2 THE DEPUTY SUPERINTENDENT OF POLICE, OLLUR, THRISSUR DISTRICT, PIN – 680006.

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BY ADV GOVERNMENT PLEADER

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RESPONDENTS/APPELLANT & RESPONDENTS 1,2 & 5 IN W.A.:

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1 SAJI THOMAS S/O.THOMAS, KANDATHIL HOUSE, KUTHIRAN, VANIYAMPARA, PATTIKKAD TALUK, PALAKKAD DISTRICT, PIN – 680652.

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2 RAMACHANDRAN.T.R AGED 35 YEARS S/O.RAMAKRISHNAN NAIR, THACHOLI HOUSE, KARIMBA P.O., PALAKKAYAM VILLAGE, MANNARKKAD TALUK, PALAKKAD DISTRICT, PIN – 678597.

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3 SIVANANDHAN AGED 47 YEARS

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S/O.VELAYUDHAN, ERAVAKKAD HOUSE, CHITHALI P.O., KUZHALMANNAM-1 VILLAGE, ALATHUR TALUK, PALAKKAD DISTRICT, PIN – 678702.

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4 PRAGATI ENGINEERING & RAIL PROJECTS PVT.LTD REGISTERED OFFICE NO.31, PLOT NO.09, SECTOR 19, NEAR IDBI BANLG, MATHERAN ROAD, NEW PANVEL, NAVI

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C.O.C.No.1707 of 2023 & R.P.No.919 of 2023

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MUMBAI-410206 AND HAVING REGIONAL OFFICE AT DOOR NO.10-1-91 AAKRUTI APARTMENTS, WAITAIR UPLANDS, VISAKHAOATTABAN-530030, REPRESENTED BY PUBLIC RELATION OFFICER (PRO), SIVANANDAN.V, S/O.VELAYUDAN RESIDING AT ERAVAKKAD HOUSE, CHAITAHALI P.O., KUZHALMANNAM-1, VILLAGE, PALAKKAD,, PIN - 678702

¶44

THIS REVIEW PETITION HAVING COME UP FOR FINAL HEARING ON 30.10.2023, ALONG WITH Con.Case(C).1707/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶45

C.O.C.No.1707 of 2023

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& R.P.No.919 of 2023

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J U D G M E N T

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Dated this the 30^th day of October, 2023

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Amit Rawal, J.

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This order shall dispose of contempt petition and review petition seeking review of the order dated 10.04.2023 rendered in W.A.No.744 of 2023 preferred against the order of the Single Bench dated 31.03.2023 in W.P.(C)No.5034 of 2023 wherein Shri.Ramachandran T.R., 1 st respondent in the writ appeal, had sought police protection for removal of his articles. Vide judgment dated 10.04.2023, on consideration of the matter and hearing the parties, we set aside the order of the Single Bench and had issued certain directions. Non-compliance of the aforementioned directions resulted into institution of the contempt petition by Shri.Saji Thomas, appellant in the writ appeal. Noticing the contentions, this Court on 05/09/2023, 14/09/2023 and 15/09/2023 passed detailed orders. Order dated 15.09.2023 includes the earlier orders also, which reads as under:

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Order dated 15.09.2023

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One Ramachandran, S/o. Mr.Ramakrishnan Nair, Thacholi House, Karimba Post Office, Palakkayam Village, Palakkad District filed writ petition bearing No.5034 of 2023 before this Court on 13.02.2023 and sought the assistance of Police for removing his articles mentioned in Ext.P1 therein i.e., a letter of Pragati Engineering & Rail Projects Pvt.Ltd giving the details of certain

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C.O.C.No.1707 of 2023 & R.P.No.919 of 2023

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material including machinery and vehicles which were stated to be in his ownership. After the aforementioned writ petition, one Mr.Saji Thomas filed a Civil Suit dated 14.03.2023 against Pragati Engineering & Rail Projects Pvt.Ltd. In fact both Ramachandran and Saji Thomas had claims against the Pragati Engineering & Rail Projects Pvt.Ltd as they were assigned different contracts for executing construction.

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The apprehension expressed by Mr.Ramachandran was that Mr.Saji Thomas who was arrayed as respondent No.5 in the writ petition, was creating obstruction in moving the material referred to in Ext.P1.

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Learned Single Bench of this Court vide judgment dated 31.03.2023 allowed the writ petition and directed the third respondent i.e., Sub Inspector of Police, Peechi Police Station to provide Police protection to Mr.Ramachandran for removal of the machinery as indicated in Ext.P1 of the writ petition without prejudice to the right of Mr.Saji Thomas to prosecute the Civil Suit filed by him in accordance with law. The order of the Single Bench was uploaded on 04.04.2023.

¶59

Mr.Saji Thomas filed a writ appeal in this Court on 04.04.2023 against filing number WA 631 of 2023 and the advance copy of the writ appeal was handed over to State counsel and the counsel representing Mr.Ramachandran on 5th April, 2023. 6th April onwards there were holidays for Easter in this Court and the next working day was 10.04.2023.

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On 10.04.2023 the Writ Appeal came up for hearing before the

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C.O.C.No.1707 of 2023

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R.P.No.919 of 2023

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Division Bench of this Court and after noticing the fact this Court set aside the judgment of Single Bench, passed the following order with direction to writ petitioner and Police to put the article removed by him back to the stage where they were picked up from and the Sub Inspector of Police and Deputy Superintendent of Police were also ordered to make an inventory or as per the Commissioner’s report in the pending suit.

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“Present writ appeal is directed against the order of the learned Single Judge whereby the writ petition filed by the respondent No.1 herein Sri.Ramachandran TR for issuance of writ in the nature of mandamus directing 3rd and 4th respondents to afford a proper and adequate police protection to the property and life of the petitioner, his employees, vehicles, machinery and equipments has been allowed with a direction to the police to provide assistance to the respondent No.1/petitioner in the writ petition, for removing of the machinery on the basis of alleged ownership by virtue of an undated agreement Ext.P1.

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2. First respondent, Sri.Ramachandran TR allegedly filed a writ petition on 13.2.2023 on the premise that he is a contractor by profession and the additional 5th respondent, M/s Pragati Engineering and Rail Projects Private Limited had availed the services of the petitioner and the 1st respondent ie., Saji Thomas/appellant in connection with the twin tunnel work at Kuthiran, Thrissur District. In this view of the matter, an agreement Ext.P1 was entered into whereby full liberty was granted to use, sell or dispose of the machine. It was alleged that the said machinery

¶68

C.O.C.No.1707 of 2023

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& R.P.No.919 of 2023

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was kept at the work site of the M/s Pragati Engineering and Rail Projects Private Limited and though writ petitioner wanted to lift the machinery and equipment but was prevented by respondent No.1 and the additional 5th respondent.

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3. Respondent, Saji Thomas/appellant contested the aforementioned claim by filing a counter and denied the agreement to be undated and also alleged that certain amount was due from the writ petitioner and the remedy for the petitioner lied elsewhere instead of writ petition. In other words, the maintainability of the writ petition was questioned.

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4. The counter is dated 6.3.2023 whereas the civil suit instituted by the appellant/respondent No.1 in the writ petition was on 14.3.2023 and pending adjudication.

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5. Learned counsel appearing on behalf of the appellant/ respondent No.1, in the writ petition submitted that the order of the learned Single Judge granting protection to the respondent No.1/petitioner in the writ petition for removal of the articles referred to in the agreement tantamounts to overreaching the process of law for the reason that remedy, if any, for execution of the terms and conditions of the agreement would be at civil court or other forum. The issue with regard to title and the ownership much less the claim would be rendered otiose. The learned Single Judge did not entertain the relief viz-a-viz providing of protection to the life and liberty of the respondent No.1/petitioner or his employees. Writ petition, was, thus liable to be dismissed. It was further contended that the order of this Court was executed within a span of

¶75

C.O.C.No.1707 of 2023 & R.P.No.919 of 2023

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only thirty (30) minutes and goods worth lakhs of rupees have already been removed/taken away.

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6. On the other hand, learned counsel appearing on behalf of the respondent No.1/petitioner in the writ petition contended that the terms and conditions of the agreement are sacrosanct. The relief sought in the writ petition was not only for the purpose of removing the articles but also for providing protection to the life and liberty it has not been entertained but this Court can always examine and grant relief as there is a perceptible threat to the life and property of the petitioner.

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7. We have heard the learned counsel for the parties and appraised the paperbook. The operative part of the order reads as under:

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“1. I have heard the learned counsel for the petitioner, the learned counsel for the 1st respondent and the learned counsel for the 2nd respondent. I have also heard the learned Government Pleader representing respondents 3 and 4.

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2. From the pleadings, it is evident that the additional 5th respondent owes money to the petitioner as well as to the 1st respondent. Both the petitioner as well as the 1st respondent are claiming their rights over the machinery owned by the 5th respondent lying at the work site.

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3. The additional 5th respondent has entered into an agreement with the petitioner, permitting the petitioner to remove the machinery of the 5th respondent made mention in Ext.P1. The said agreement is admitted by the petitioner as well as the 2nd respondent.

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4. As far as the 1st respondent is concerned, though the 1st respondent has approached the Civil Court for realisation of money from the additional 5th respondent and sought for attachment, the Court has not granted any attachment so far.

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5. In such circumstances, I am of the view that the 1st respondent cannot cause any obstruction to the removal of

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C.O.C.No.1707 of 2023 & R.P.No.919 of 2023

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machinery made mention in Ext.P1 by the petitioner. The writ petition is therefore disposed of directing the 3rd respondent to give adequate protection to the petitioner to remove the machinery as indicated in Ext.P1. This will be without prejudice to the right of the 1st respondent to prosecute the C.S filed by him in accordance with law. ”

¶88

8. It is settled law that if at all there is any breach of the terms and conditions of the agreement, the remedy would lie under the provisions of the Specific Relief Act and not in the manner and mode. On perusal of the extracted portion of the order, it is evident that the prayer of the respondent No.1/writ petitioner with regard to protection of life and liberty has not been pondered or considered much less decided. The direction with regard to the liberty to the appellant/respondent No.1 in the writ petition to prosecute the civil suit cannot be construed that the protection as sought for, for removal of the machinery, the assistance of the police could be entertained, thus we are of the view that writ at the instance of the respondent No.1, writ petitioner under Article 226/227 of the Constitution of India for execution of terms and conditions of undated agreement, Ext.P1 was not maintainable. For the reason aforementioned, the order of the learned Single Bench is set aside. Accordingly, writ appeal stands allowed. The copy of the order is directed to be communicated to the learned Government Pleader for implementation. We direct the respondents 3 and 4 ie., Sub Inspector of Police and Deputy Superintendent of Police in the writ petition to ensure that the goods removed by the respondent No.1/petitioner in the writ petition to be placed at the site forthwith, after making the inventory or as per the Commissioner's report already prepared.”

¶89

C.O.C.No.1707 of 2023 & R.P.No.919 of 2023

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Contempt Case (C)No.1707 of 2023 has been filed alleging the non compliance of the above order. On 05.09.2023 and 14.09.2023 following orders have been passed in the contempt petition:

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05.09.2023

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“1. The present contempt petition has been filed alleging noncompliance of the judgment of this Court in W.A.No.744/2023 dated 10.4.2023, wherein direction was issued to respondent Nos.1 and 2 herein/respondent Nos.3 and 4 in the writ appeal, to ensure that goods removed by the third respondent herein/first respondent in the writ appeal/petitioner in the writ petition, to be placed in the site forthwith.

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2. While setting aside the judgment of the learned Single Judge, this Court had noticed that goods allegedly belonged to the petitioner kept at the construction site were removed in obedience of the judgment of the learned Single Judge. Noticing all these facts, direction was issued to respondent Nos.1 and 2 herein to ensure that goods removed by third respondent herein/first respondent in the writ appeal/petitioner in the writ petition, to be placed in the site forthwith. Nearly four months have been elapsed since the judgment, but, direction therein has not been complied with.

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3. Counter affidavit filed on behalf of the respondents also do not justify the cause in not complying with the direction of this Court. Hence, we are of the view that it is a fit case for initiating contempt proceedings.

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C.O.C.No.1707 of 2023 & R.P.No.919 of 2023

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4. Issue notice before admission to the respondents. Learned Government Pleader takes notice for respondent Nos.1 and 2. Adv.P.M.Ziraj takes notice for the third respondent. 5. Respondents are directed to be present in Court at 10.15 a.m. on 14.9.2023 for show cause on quantum of punishment.”

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14.09.2023

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“This Court on 10.04.2023 in W.A.No.744 of 2023 passed a detailed order. Mr.V.V.Vimal, Sub Inspector of Police (SHO), Peechi Police Station, Thrissur and Mr.P.C.Suresh, Deputy Superintendent of Police,(Asst Commissioner of Police), Ollur, Thrissur are present.

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2. It has been informed that the order of this Court was received by the office of the SHO, Peechi Police Station on 18.04.2023. Mr.Ratheesh, the then SHO was transferred on 15.06.2023 and Mr.Vimal has assumed the office of the SHO on 29.07.2023. Mr.Bibin B.Nair, SHO assumed the charge from 15.06.2023 to 09.07.2023. But the order of this Court still not been complied with. Mr.P.C.Suresh, Deputy Superintendent of Police, (Asst Commissioner of Police) is also present here and has not given any explanation for not complying with the order.

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3. We are of the view that if this is the situation in the society, the faith of the society in the judiciary will be eradicated. The police does not even attempt to comply with the order of this Court particularly from the date when they were summoned for appearance. We release Mr.V.V.Vimal from the notice of this Court and instead, Mr.Ratheesh and Mr.Bibin B.Nair of Thrissur district instead are arrayed. They are directed to be present in Court tomorrow(15.09.2023). We will consider giving a show

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C.O.C.No.1707 of 2023 & R.P.No.919 of 2023

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¶105

cause regarding the quantum after hearing them well and as well as Mr.P.C. Suresh.

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4. The writ petitioner who is the respondent in the Writ Appeal is also present here. The order was also in his knowledge. Even if the police had not taken steps, it was his duty to comply and respect the order of this Court.

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5. To a query raised by this court, it was answered that in pursuance to the order of Single Bench of this Court dated 31.03.2023, goods were removed on 07.04.2023 and melted. This fact has not been informed to this Court even at the time when the Writ Appeal was disposed of or by filling any application for modification. Learned counsel for the appellant is directed to give the value of the goods which is purported to have been melted to this Court by tomorrow so that an appropriate directions can be issued to both police officials as well as respondent-writ petitioner for compliance of the order”

¶108

Mr.Ratheesh, then SHO and Mr.Bipin B.Nair are Present in Court.

¶109

We asked the then SHO who was posted in the said Police Station as to what steps were taken in compliance of the directions of the Single Bench as well as the Division Bench of this Court. He was totally nonplussed and did not give any answer. Called upon the Government Pleader to provide us the General Diary entry and as per contents of the entry in the General diary, it is evident that at 8.53 am on 06.04.2023 Mr.Ratheesh, then S.H.O. warned Mr.Ramachandran, the writ petitioner before the Single Bench to abide by the order of the High Court as there was an attempt, under the garb of the order of the Single Bench, to remove material belonging to Mr.Saji Thomas.

¶110

C.O.C.No.1707 of 2023 &

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R.P.No.919 of 2023

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Mr.Ramachandran is also present in Court represented by Adv.Ziraj. On instructions learned counsel appearing on behalf of Mr.Ramachandran informs that he had lifted the goods on 08.04.2023 and sold it to a scrap dealer – Ibrahim of Palakkad having mobile No.9037440362.

¶114

Police is not stated to have, after receipt of the contempt petition, taken any steps to inquire for compliance of the order from the scrap dealer or by recording the statement of writ petitioner before the Single Bench regarding lifting and selling of the scrap material which are alleged to have been melted.

¶115

Prima facie we are of the view that the Police colluded with the Mr.Ramachandran and helped him lifting material, purported to be in compliance of the order of Single Bench and having the notice that the writ appeal was pending in this Court. The entire things have been done in a slip shod manner much less in undue haste to overcome any adverse order by the Division Bench. While lifting the material, no inventory has been prepared by the Police or by the writ petitioner leaving all the parties in dark.

¶116

After notice has been issued, as an afterthought, state filed R.P.No.919 of 2023 for recalling of the order dated 10.04.2023. At this stage, counsel representing the writ petitioner also informed that review petition has been filed but it is under objection. The Senior Officer of the Police has also not monitored the role of the local Police particularly when there has to be compliance and adherence to the order of this Court. The recent law with regard to the willful

¶117

C.O.C.No.1707 of 2023 & R.P.No.919 of 2023

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breach of assurance or undertaking or non-compliance of the order has been pondered by Supreme Court in Balwantbhai Somabhai Bhandari v. Hiralal Somabhai Contractor (Deceased) Rep.by Lrs. (2023 KHC online 6825) wherein, noticing the fact that it may not affect the service career of a Government employee has come down heavy that the order has to be respected and regarded.

¶120

Prima facie this is a classic case of willful disobedience. Before we hold an enquiry and fix the responsibility, we call upon Mr.Ratheesh, then SHO, Mr.Bipin B.Nair who had remained SHO from 15.06.2023 to 09.07.2023 and Mr.P.S.Suresh, Assistant Commissioner of Police to file their affidavits along with the documents in support of their purported defence. Similar directions are also issued to the writ petitioner Mr.Ramachandran also.

¶121

In the meantime the present Superintendent of Police, Thrissur will hold a summary enquiry with regard to the version and cross version of the parties noticed by us in the order aforementioned and submit his report in a sealed cover. Let this exercise be undertaken within a period of three weeks.

¶122

Post this matter on 09.10.2023. Mr.Ratheesh, then SHO and Mr.Bipin B.Nair along with the writ petitioner Mr.Ramachandran are directed to be present in Court on the next date of hearing.”

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2 . In view of the aforementioned orders, the District Police Chief,

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Thrissur City has submitted report dated 30.09.2023. It would be relevant

¶125

C.O.C.No.1707 of 2023 & R.P.No.919 of 2023

¶126

¶127

to extract paragraphs 8, 9, 10, 11, 13 & 14 of the report:

¶128

“ 8. It is submitted that, after receiving the copy of the judgement, Ratheesh. Sub Inspector of Police, Peechi Police Station, 4^th respondent herein contacted Sri. Ramachandran and informed him to replace the goods as per the direction of the Honourable High Court of Kerala on 18.04.2023. Sri.Ramachadran replied that he had sold the scrap to a person named Ibraheem Badhusha from Pattambi for an amount of Rs. 11 lakh and all the properties were already removed and melted. Hence could not be produce back.

¶129

It is submitted that Sri.Ratheeh, Sub Inspector of Police, 4^th respondent herein has not submitted any report before the Honourable Court regarding the inability to replace the removed scrap. He did not give any direction to the Sri. Ramachandran in writing to replace the goods on the spot. Besides this, he did not report the inability to replace the goods to Assistant Commissioner of Police Ollur also.

¶130

It is submitted that on 15.06.2023, Sri.Ratheesh, 4 th respondnet herein handed over the charge of the Peechi Police Station to Bibib B.Nair, Sub Inspector, 5 th respondent herein in the event of his transfer. While handing over the charge, Sri.Ratheesh did not communicate to Bibin B.Nair any details of the Writ Appeal order that is pending to be executed. He did not mentionabout it in the Handing over list alos. Hence, the newly appointed Sub Inspect, Bibin B.Nair, 5 th respondent herein was not aware of Honourable Court order and he did

¶131

C.O.C.No.1707 of 2023 & R.P.No.919 of 2023

¶132

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not do anything to execute the direction in the writ appeal.

¶134

It is submitted that, following the inaction of the police, Sri.Saji Thomas, petitioner herein filed a contempt of court case against V.V.Vimal, Inspectr of Police, Peechi Police Station, P.S.Suresh, Assistatn Commissioner of Polcie, Ollur, and Sri.Ramachandran. The court int heorder dated 14.09.2023 excluded V.V.Vimal and added Sri.Ratheesh, Sub Inpector of Police, and Sri.Bibin B.Nair, Sub Inspector of Police, as additional 4 th and 5 th respondents respectively.

¶135

13. It is submitted that even though, Bibib B.Nair, Sub Inspector of Police, 5 th respondent herein who took charge from Sri.Ratheesh, 4 th respondent herein did not do anythign for the execution of the order in the writ appeal, on enquiry it is understood that he was not aware of the pendency of the writ appeal to execute. Sub Inspector Ratheesh, while handing over the charge, did not mention it on the handing over list. Thereafter, Bibin B.Nair, 4 th respondent herein and the Assistant Commissioner of Police, Ollur, 2 nd respondent hereindid not get any communicatioan from the petitioner herein, respondent Sri.Ramachandran or the Honourable Court regarding the non-execution of the writ appeal direction till the filing of the contempt of court case. After including himself as a respondnet in the contempt of court case, he conducted a detailed enquiry and gave notices to Sri.Ramachandran, the dealers Sri.Ibraheem Badhudusha and Sri.Noushad Ali. He proceeded for the spot and recorded the statements of them. On his enquiry it is understood that the scrap was removed

¶136

C.O.C.No.1707 of 2023

¶137

¶138

R.P.No.919 of 2023

¶139

¶140

from the spot on the dates 06.04.2023 and 07.04.2023 itself. On the same day, it was sold to one Ibraheem Badhusha at Pattambi for an amount of Rs 11 lakh. Sri.Ibraheem Bahusha resold it to Noushad Ali for an amount of Rs. 11,50,000. Then Sri.Noushad Ali sold it to a company named Three Star Steels and Bottles at Pattambi. Subsequently, it was sold to another company Indigo Steel Bar Company. Indigo Steel Bar Company melted the property on 12.04.2023 at a melting company named Kuttippulan Iron & Steel Co-Operative Ltd, which was run by them on lease agreement. The melted property was converted into iron bars and sold.

¶141

Hence, the property could not be replaced. Sri.Bibin B. Nair, 5^th respondent herein had taken earnest efforts after he becoming aware of the order of the Honourable High Court of Kerala in the Writ Appeal. He did not conduct any wilful negligence to obey the order of the Honourable High Court of Kerala.

¶142

It is submitted that I have examined about the flaws on the on the part of Sri .P.S. Suresh. Assistant Commissioner of Police, Ollur, 2 respondent herein. After getting the direction of the Honourable High Court of Kerala in WA 744/2023, which was handed over to him by the petitioner herein on 18.04.2023, he forwarded it to the Sub Inspector of Police Peechi Police Station, 4^th respondent herein through email with the direction to take necessary action. He then called Sub Inspector Sri.Ratheesh. 4^th respondent over phone and informed him of the situation. Thereafter, he did not follow up

¶143

C.O.C.No.1707 of 2023

¶144

¶145

R.P.No.919 of 2023

¶146

¶147

on it until receiving the information in connection with the contempt of court case. As part of the enquiry I sought an explanation from him, and he explained that he forwarded the direction to the sub-inspector, 4 th respondent herein with the direction to take necessary action. He bonafidely thought that the sub-inspector would take necessary actions to comply the order and would submit the report to the court in time. Hence, he did not take any further follow-up action. It is understood that. Assistant Commissioner of Police, Ollur, 2 respondent did not conduct any follow up on bonafidely believed that, Sri Ratheesh, Sub Inspector of Police, the 4 th respondent herein would take appropriate action to comply the order of Honourable High Court of Kerala.”

¶148

3 . Cumulative reading of the aforementioned report reveals that

¶149

the then SHO Mr.Ratheesh and Mr.P.S.Suresh, Assistant Commissioner of Police, Ollur had not taken proper action for implementation of the order dated 10/04/2023 in W.A No.744/2023 and in the mean time, respondent No.1 alleged contemnor-writ petitioner before the Single Bench had, with the assistance of the police, on two days 06 th and 07 th April, 2023, removed the items and sold it further, which has exchanged many hands and melted down; its value is almost 11 lakhs. We have been informed that the petitioner in the contempt petition had already filed a civil suit for recovery

¶150

C.O.C.No.1707 of 2023

¶151

¶152

R.P.No.919 of 2023

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of the articles against the company. We are of the view that since the material which have been lifted has changed its colour and texture, it would not be possible for implementation of the order dated 10/04/2023 wherein following direction was issued:

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“8. It is settled law that if at all there is any breach of the terms and conditions of the agreement, the remedy would lie under the provisions of the Specific Relief Act and not in the manner and mode. On perusal of the extracted portion of the order, it is evident that the prayer of the respondent No.1/writ petitioner with regard to protection of life and liberty has not been pondered or considered much less decided. The direction with regard to the liberty to the appellant/respondent No.1 in the writ petition to prosecute the civil suit cannot be construed that the protection as sought for, for removal of the machinery, the assistance of the police could be entertained, thus we are of the view that writ at the instance of the respondent No.1, writ petitioner under Article 226/227 of the Constitution of India for execution of terms and conditions of undated agreement, Ext.P1 was not maintainable. For the reason aforementioned, the order of the learned Single Bench is set aside.Accordingly, writ appeal stands allowed. The copy of the order is directed to be communicated to the learned Government Pleader for implementation. We direct the respondents 3 and 4 ie., Sub Inspector of Police and Deputy

¶156

C.O.C.No.1707 of 2023 & R.P.No.919 of 2023

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Superintendent of Police in the writ petition to ensure that the goods removed by the respondent No.1/petitioner in the writ petition to be placed at the site forthwith, after making the inventory or as per the Commissioner's report already prepared.”

¶159

4 . We thus give liberty to the petitioner to take action in the pending suit by seeking amendment and claim the damages by impleadment of Sri.Ramachandran the alleged contemnor, r espondent No.3 in the contempt petition. Since the goods had already been replaced and claim is yet to be proved, we deem it appropriate to direct respondent No.3 to furnish a security in the pending suit after having been impleaded, in respect of the amount received by selling the articl es . Though departmental explanation had already been called from Shri.Ratheesh, we are of the view that the report does not reveal about any action taken against the Assistant Commissioner of Police.

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5. Mr.P.S.Suresh has filed an affidavit tendering apology, which is taken on record and stated that he had only 8 (eight) months service left and would be superannuated on 30.05.2024. It was an involuntary laxity occurred on his part. An apology from the sector of disciplined force cannot be accepted in a casual and cavalier manner as they are the protectors of law

¶161

C.O.C.No.1707 of 2023 & R.P.No.919 of 2023

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and order. People can only live and sleep with the hope that their life and liberty is protected at the hands of these forces. If such persons are permitted to be that cavalier, the whole law and order situation would be at peril. We are thus of the view that in the absence of any action being taken against the Assistant Commissioner of Police Shri.P.S.Suresh who was to monitor and obtain report from his officer junior since he was a party in the writ appeal, we direct the District Police Chief, Thrissur district to take appropriate departmental action against Sri.P.S.Suresh also in accordance with law.

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With the aforementioned directions the contempt petition and review petition stand disposed of.

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Sd/JUDGE

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Sd/C.S.SUDHA JUDGE

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¶168

C.O.C.No.1707 of 2023 & R.P.No.919 of 2023

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¶170

APPENDIX OF CON.CASE(C) 1707/2023

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RESPONDENTS' ANNEXURES:-

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ANNEXURE R2(a)	TRUE COPY OF THE SCREEN OF THE e-mail OF PEECHI POLICE STATION
ANNEXURE R2(b)	TRUE COPY OF THE NOTICE ISSUED TO SRI.RAMACHANDRAN BY SHO PEECHI DATED 01.08.2023 ALONG WITH ITS ENGLISH TRANSLATION
ANNEXURE R2(c)	TRUE COPY OF THE REPORT SUBMITTED AGAINST RATHEESH P.M. SI OF POLICE TO DPC, THRISSUR CITY, DATED 04.08.2023
Annexure R4(a)	TRUE COPY OF GENERAL DIARY ENTRY DATED 06.04.2023 OF PEECHI POLICE STATION ALONG WITH ENGLISH TRANSLATION
Annexure R4(b)	TRUE COPY OF THE JUDGMENT IN WA NO. 744/2023 DATED 10.04.2023
Annexure R5 (a)	TRUE COPY OF THE HANDING OVER LIST DATED 15.06.2023
Annexure R5(b)	TRUE COPY OF THE NOTICE ISSUED TO SRI.RAMACHANDRAN ON 20.09.2023 ALONG WITH ENGLISH TRANSLATION.
Annexure R5(c)	TRUE COPY OF THE STATEMENT OF SRI.RAMACHANDRAN ALONG WITH ENGLISH TRANSLATION
ANNEXURE R5 (d)	TRUE COPY OF THE STATEMENT OF SRI.IBRAHEEM BADHUSHA ALONG WITH ENGLISH TRANSLATION
ANNEXURE R5(e)	TRUE COPY OF THE NOTICE ISSUED TO IBRAHEEM BADHUSH ON 20.09.2023 ALONG WITH ENGLISH TRANSLATION.
ANNEXURE R5(f)	TRUE COPY OF THE STATEMENT OF SRI.NOUSHAD ALI ALONG WITH ENGLISH TRANSLATION
ANNEXURE R5(g)	TRUE COPY OF THE NOTICE ISSUED TO NOUSHAD ALI ON 20.09.2023 ALONG WITH ENGLISH TRANSLATION

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C.O.C.No.1707 of 2023 & R.P.No.919 of 2023

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ANNEXURE R5(h) TRUE COPY OF THE STATEMENT OF SRI.ABDUL BHASHEER ALONG WITH ENGLISH TRANSLATION ANNEXURE R5(i) TRUE COPY OF THE NOTICE ISSUED TO ABDUL BASHEER ON 20.09.2023 ALONG WITH ENGLISH TRANSLATION

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ANNEXURE R5(j) TRUE COPY OF THE STATEMENT OF SRI.NOUSHAD ALONG WITH ENGLISH TRANSLATION

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C.O.C.No.1707 of 2023 & R.P.No.919 of 2023

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APPENDIX OF RP 919/2023

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RESPONDENTS' ANNEXURES:ANNEXURE R1(a) TRUE COPY OF THE NOTICE ANNEXURE R1(b) TRANSLATION OF ANNEXURE R1(a) ANNEXURE R1(c) TRUE COPY OF THE CASE STATUS IN W.A. NO. 744/2023.

Saji Thomas v. V.V. Vimal

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Saji Thomas v. V.V. Vimal

Case brief

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