Contempt arises only from wilful defiance of court orders; provisional orders allow for further legal proceedings.

JUDGMENT

Petitioners seek to initiate contempt of court proceedings against the respondents, who are the Secretary and Assistant Executive Engineer of Thiruvalla Municipality, respectively.

2. The basis of the contempt proceeding is the judgment dated 06.11.2023 in W.P.(C) No.21312/2021. The construction of a building by the petitioners was the subject matter of dispute in the afore-noted writ petition. Initially, a direction was issued by the Secretary of the Municipality, which was produced as Ext.P12 in the writ petition and as Annexure-A1 in this contempt proceedings. Ext.P20 and Ext.P21 were subsequent notices issued by the Secretary based on Ext.P19 communication of the Secretary of the Local Self Government. In the judgment mentioned above, this Court set aside Ext.P20 and Ext.P21 notices, as well as Ext.P19 communication, and directed the Secretary of the Municipality to take Ext.P12 to a logical conclusion after considering the case of the petitioners and permitted a site inspection and hearing to be conducted during this process. Apart from the above directions, it was also observed that, if any unlawful construction, which was not mentioned in Ext.P12 is noticed, proceedings shall not be initiated without following the procedure prescribed under Section 406 of the Kerala Municipality Act, 1994 as well as Rule 18 of the Kerala Municipality Building Rules, 1999 [for brevity, of the Act and Rule 18 of the Rules].

3. According to the petitioners, contrary to the directions mentioned in the judgment, Annexure-A7 order was issued by the Municipality, directing the petitioners to demolish certain constructions, which were actually the alleged unauthorised constructions mentioned in Ext.P20 and Ext.P21 notices produced in the writ petition and quashed by this Court.

4. Though prima facie this Court found the petitioners’ contention to be meritorious, after hearing Dr.George Abraham, the learned counsel for the petitioners, as well as Sri.M.V.S.Nampoothiry, the learned counsel appearing on behalf of respondents, this Court is of the view that no case of contempt arises to proceed with this case.

5. Contempt of court will arise only when there is a willful defiance of the orders or a conduct that explicitly reveals a refusal to abide by the directions issued by a court of law.

6. In the instant case, though this Court had confined the consideration by the Secretary to Ext.P12 (Annexure-A1), a rider was incorporated in the judgment that, if in case any violation is identified, the Secretary was at liberty to proceed under Section 406 of the Act and Rule 18 of the Rules. Therefore, if at all any unauthorized constriction is identified which came within the purview of of the Act, it was open, by virtue of the judgment itself, for the Secretary, to have issued a provisional order and initiate proceedings under of the Act and Rule 18 of the Rules.

7. A reading of Annexure-A7 indicates that, instead of the nomenclature ‘provisional order’, the first respondent issued the order styling it as an “order” suggesting that it is a final order. However, towards the last part of Annexure-A7 order, it has been observed that if the unauthorized construction is not removed, proceedings under Section 406 of the Act and Rule 18 of the Rules, will be initiated indicating to a certain extent, that it was only a provisional order, though not specifically named as such.

8. When a proceeding under Section 406 of the Act is initiated, the Statute empowers the Secretary to issue a provisional order, and thereafter, if the noticee files an objection, the Secretary has to consider it and proceed in accordance with law. Hence, notwithstanding the incorrect nomenclature mentioned in Annexure-A7 it can only be treated as a provisio