Madras High Court
M.Marimuthu vs Sankaranayarayanan on 23 December, 2010
Author: R.Banumathi
Bench: R.Banumathi, R.Subbiah
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 23/12/2010 CORAM THE HONOURABLE Mrs.JUSTICE R.BANUMATHI AND THE HONOURABLE Mr.JUSTICE R.SUBBIAH Contempt Petition(MD)No.596 of 2010 Contempt Petition(MD)No.597 of 2010 Contempt Petition(MD)No.598 of 2010 Contempt Petition No.596 of 2010: M.Marimuthu ... Petitioner vs. Sankaranayarayanan Tahsildar, Rajapalayam ... Respondent Contempt Petition No.597 of 2010: M.Marimuthu ... Petitioner vs. S.Santhi Commissioner of Panchayat Union, Rajapalayam. ... Respondent Contempt Petition No.598 of 2010: M.Marimuthu ... Petitioner vs. R.Ganeshwari President of Dhalavaypuram Panchayat, Dhalavaypuram. ... Respondent Prayer These Contempt Petitions are filed under Sec.11 of the Contempt of Courts Act, 1971 for the disobedience of the direction issued in W.P.(MD) No.14222 of 2009 dated 24.02.2010. !For Petitioner ... Mr.T.Mohan for Mr.M.Ganesan in all the Petitions. ^For Respondents ... Mr.K.Balasubramanian Addl. Government Pleader for Respondent in C.P.No.596 & 597/2010 Mr.A.V.Arun for Mr.Meenakshi Rama Prabhu for Respondent in C.P.No.598/2010 :COMMON ORDER
R.BANUMATHI,J The issue in these Contempt Petitions relates to shifting of burial ground from S.F.No.4/3 to S.F.No.4/8 of Chettiarpatti Kanmai. Alleging disobedience of the order passed in W.P.(MD) No.14222 of 2009 [24.02.2010] and that the Respondents have committed contempt of court, Petitioner has filed these Contempt Petitions. Since all the Contempt Petitions are arising out of the order made in W.P.(MD)No.14222/2009, all the Contempt Petitions were taken up together and disposed of by this Common Order.
2. In W.P.(MD) No.14222 of 2009, recording the statement of the counsels on record that the burial cum cremation ground has been shifted to S.F.No.4/8, Chettiarpatti Kanmai, the said Writ Petition was disposed of with the following order:-
"3. Since we cannot go into the veracity of shifting of burial or cremation place at this stage, recording the statement made by the learned counsel appearing for the first and second respondents as well as the learned Special Government Pleader appearing for the third and fourth respondents, we close this Writ Petition. If the petitioner finds that some body is buried/cremated at another place and not at 4/8 Chettiarpatty Kanmai, it is open to thim to move this Court by filing a Miscellaneous Petition in this Writ Petition itself and the Registry shall number it, if any such petition is filed."
3. Praying to strictly implement the order of the Court in W.P.(MD) No.14222/2009, Petitioner filed M.P.(MD)No.1 of 2010. By the order dated 16.08.2010, the Bench has closed the Petition observing that "in the event of the earlier order dated 24.02.2010 is disobeyed, it is for the Petitioner to approach the Court with appropriate application alleging non-compliance of that order or violation of the same".
4. Alleging non-compliance of the order made in W.P.(MD)No.14222/2009 dated 24.02.2010, now the Petitioner has filed C.P.No.596/2010 against the Tahsildar, Rajapalayam; C.P.No.597/2010 against the Commissioner of Panchayat Union, Rajapalayam and C.P.No.598/2010 against the President of Dhalavaypuram Panchayat. Case of Petitioner is that Respondents have duty and responsibility to obey the orders of the Court as well as the direction of the superior authority. Petitioner has averred that inspite of the statement made in the Court that the burial ground has been shifted to S.F.No.4/8, acts of burying and cremating the dead bodies are allowed to continue in S.F.No.4/3. Between 1.1.2010 to 27.5.2010 about 18 persons died and all the dead bodies were buried/cremated in S.F.No.4/3 which amounts to wilful disobedience of the order of the Court and Respondents are liable to be punished for Contempt of Court for their contumacious disregard of the order of the Court.
5. Mr.T.Mohan, learned counsel for Petitioner contended that as per Sec.2(b) of Contempt of Courts Act, 1971 any wilful disobedience to any direction or order or to process of the Court would tantamount to Contempt of Court. Drawing our attention to the various orders and communications, learned counsel for Petitioner would further contend that the alleged contemners who are not only prevaricating in their stand at different stages in different proceedings but also intending to prolong the litigation one way or other. Learned counsel for Petitioner would further contend that the contemners have made a statement before the Court that the burial ground has been shifted to S.F.No.4/8 and thereby deliberately flouted the order which would certainly amount to deliberate attempt to disobey the orders of the Court.
6. Stand of Respondents is that they have taken steps to shift the burial ground from S.F.No.4/3 to S.F.No.4/8, but there is no co-operation from the villagers and villagers continue to bury the dead bodies only in S.F.No.4/3. Taking us through the various litigations including filing of the Civil Suits, learned counsel for Respondents/contemners contended that if they insist the villagers to have the burial ground at S.F.No.4/8, there would be law and order problem in the village. It was further contended that in view of the pendency of civil suit, Respondents/contemners are handicapped in taking any independent decision to comply the direction of the Court made in W.P.(MD)No.14222/2009.
7. It is well settled principle of law that purpose of contempt is not to enforce the order, but to maintain the dignity of the Institution. The alleged acts of contempt is to be examined in the light of the chequered history which the matter had. Relating to issue of burial ground, the parties are entangled in several rounds of litigation for nearly a decade.
8. Thoppiamkulam Sree Subramania Swamy Temple is situated in S.F.No.4/1. S.F.No.4/3 is said to have been used as burial ground from time immemorial. S.F.No.4/8 has been classified as Kanmai. In the year 2002, Tahsildar has issued proceedings to shift the burial ground from S.F.No.4/3, Chettiyarpatti tank which came to be challenged by the villagers in W.P.(MD) No.35694/2002. In the said Writ Petition, the villagers prayed to quash the Proceedings in Rc.No.B.5/1323/2002 dated 30.04.2002 and to forbear the Respondents 1 and 2 therein from shifting the grave yard, cremation and burial ground and crematories lying in S.F.No.4/3. The said Writ Petition was disposed of by the order dated 12.04.2005 directing the Tahsildar, Rajapalayam taluk to conduct a fresh enquiry with reference to the representation made by the Petitioners therein and also to get the statement from the persons concerned. A peace committee was held on 14.08.2006 and a decision was taken to shift the burial ground. The Tahsildar, Rajapalayam taluk communicated the same to the Commissioner of Panchayat Union, Rajapalayam on 12.09.2006. Even at that stage the local people objected to shift the burial ground to S.F.No.4/8 which is also classified as Chettiarpatty kanmai and they continue to bury the dead bodies only in S.F.No.4/3.
9. W.P.(MD)No.6064/2007 - Petitioner [Marimuthu] has filed this Writ Petition seeking for issuance of Writ of Mandamus to direct the Respondents to take expedite action to pass the order in time bound manner for shifting the burial ground and cremation shed as issued by the Tahsildar, Rajapalayam in Memo Ref.No.B5/4134/2005 dated 12.09.2006. The said Writ Petition was filed without impleading the President of the Village Panchayat. By the order dated 31.07.2007 in W.P.(MD) No.6064/2007, the Court has observed as follows:-
"3. Mr.Pala Ramasamy, learned Special Government Pleader filed a set of documents, containing a recent communication dated 11.1.2006 sent by the Tahsildar to the Commissioner, Rajapalayam Panchayat Union. In the said communication, it is stated by the first repondent that it was originally agreed to shift the burial cum cremation ground to a place in Survey No.4/8, Chettiarpattikulam Channel. But there were objections to the same and hence a new place had been identified for the shifting of the burial ground. Under such circumstances, the first respondent had requested the Panchayat Union Commissioner by the communication dated 11.11.2006 to expedite the whole process, so that the grievance of the devotees stand redressed.
4. In view of the steps taken by the 1st respondent as seen from the communication dated 11.11.2006, the grievance of the petitioner appears to have been redressed to a great extent. Hence, this writ petition is closed. However, the 2nd respondent shall ensure that the project of shifting the burial cum cremation ground is expedited at the earliest. No costs".
10. Thereafter, the Panchayat has passed a resolution stating that S.F.No.4/8 is not feasible for shifting the burial ground. Challenging the communication of the Tahsildar dated 06.09.2007 addressed to the Commissioner of Rajapalayam Panchayat Union, by giving direction to shift the burial ground to S.F.No.4/8 to comply the order dated 31.07.2007 in W.P.(MD)No.6064/2007, Dhalavaipuram Village President has filed W.P.(MD) No.10768/2007. In the said Writ Petition after referring to the contentions of the President, the learned single Judge held that there are number of disputed questions involved and directed the parties to workout the remedies before the competent civil court. The relevant portion of the order reads as under:-
"9. Admittedly, there are a lot of disputed questions of fact involved in the writ petitio. Whether the place where the cremation cum burial ground is going to be established is within the prohibited distance or not is broadly a disputed question of fact, which cannot be resolved without having evidence before this court. Further whether the proposed place would be detrimental to the interest of the public or not is also a matter to be resolved only on evidence. The said disputed questions of facts cannot be resolved by the writ court. If the parties are so advised, they can very well work out their remedies before the competent civil court by getting the above disputed questions of fact resolved. In my considered opinion, it would be very difficult to resolve the issue involved in this writ petition, without deciding the above disputed questions of fact. In view of the same, the writ petition is not maintainable and therefore the same is liable to be dismissed".
11. Pursuant to the direction, Thalavaipuram Village Panchayat President has filed the suit in O.S.No.601/2009 before the District Munsif Court, Srivilliputhur. In the said suit, Petitioner received summons on 20.12.2009. It is stated by the Respondents that after the receipt of suit summons, W.P.(MD) No.14222/2009 has been filed on 22.12.2009 without disclosing the filing of civil suit in O.S.No.601/2009. For the sake of brevity, we are not referring to the Contempt Petition in C.P.No.429/2007 filed against the order made in W.P.(MD)No.6064/2007 and also the Review Application No.61/2010 filed in W.P.(MD)No.10635/2010.
12. W.P.(MD)No.10635/2010 was filed by one Baskaran seeking for Writ of Mandamus forbearing the Respondents therein from shifting the burial cum cremation ground/grave yard lying in S.F.No.4/3 to S.F.No.4/8 which is classified as Kanmai. Referring to the earlier Writ Petition filed by the villagers [W.P.(MD)No.10768/2007], the Bench has directed the Writ Petitioner- Baskaran to workout his remedy in the civil Court by impleading himself in the pending suit filed by the President. One Arjunan has filed Civil Suit in O.S.No.323/2010 on the file of District Munsif Court, Srivilliputhur in representative capacity of Chettiyarpatti villagers. In the said suit, the officials are arrayed as Defendants 1 to 4 and Petitioner-Marimuthu was arrayed as 5th Defendant. The two suits O.S.No.601/2009 and O.S.No.323/2010 were filed for declaration that the Proceedings of the Tahsildar, Rajapalayam in Na.Ka.B5/4134/05 dated 06.09.2009 as null and void and for permanent injunction restraining the Defendants from forming cremation ground in the disputed land.
13. Now the case of Petitioner is that inspite of the statement made in the court in W.P.(MD)No.14222/2009, steps have not been taken to shift the burial ground and the bodies continued to be buried in S.F.No.4/3 which amounts to wilful disobedience of the order of the Court. As pointed out earlier, without disclosing the filing of civil suit regarding the same issue in O.S.No.601/2009 in which the Petitioner was also served with summons, Petitioner has filed W.P.(MD)No.14222/2009. Orders were passed in W.P.(MD)No.14222/2009 that burial ground has been shifted from S.F.No.4/3 to S.F.No.4/8 on the statement made by the counsels. Learned counsel for Respondents have brought to our notice regarding the display board put up in S.F.No.4/3. The xerox copy of photograph of the display board reads as under:-
mwptpg;g[ brd;id cah;ePjpkd;w kJiu fpis bg R cj;jput[[ vz;/ W.P.(MD) No:14222/2009; ehs; 24/2/2010?d;go ,we;jth;fspd; rly';fis g[ijf;fnth (my;yJ) vhpf;fnth brl;oahh;gl;o fz;kha; g[y vz;/4-8I kl;Lnk gad;gLj;jntz;Lk;/ khwhf ,e;j ,lj;jpy; g[y vz;/4-3y; g[ijf;fnth. vhpf;fnthTlhJ vd;W brd;di cah;ePjpkd;wk; kJiu fpisahy; jilbra;ag;gl;Ls;sJ/ ,e;j cj;jputpid kPWgth;fs; kPJ rl;lg;goahd eltof;if vLf;fg;gLk;/ cj;jput[g;go According to Respondents they have taken all steps to shift the burial ground from S.F.No.4/3 to S.F.No.4/8, but the village people are raising objections to have the burial ground inside the Kanmai in S.F.No.4/8 stating that the entire village people are using the burial ground in S.F.No.4/3 from time immemorial. It was further stated during rainy season the entire Kanmai in S.F.No.4/8 is inundated with water making it impossible to use the same as burial ground.
14. Placing reliance upon (2004) 7 SCC 261 [Prithawi Nath Ram v. State of Jharkhand and others], the learned counsel for Petitioner contended that the Court dealing with the application against the alleged non-compliance with its earlier order cannot examine the rightness or wrongness of that order and it was for the party alleging that it is impracticable to implement the earlier order to approach the Court that has passed the order or the Appellate Court. It was further contended that review of the decision, contempt in respect of which is in question is impermissible. Contending that Court cannot examine the correctness of the earlier decision or traverse beyond it and take a different view from what was taken therein, the learned counsel for Petitioner placed reliance upon (2006) 1 SCC 613 [Union of India and others v. Subedar Devassy PV]. Reliance was also placed in (2005) 6 SCC 98 [Director of Education, Uttaranchal and others v. Ved Prakash Jopshi and others].
15. Ofcourse, we have no quarrel over the proposition that in the contempt proceedings, Court cannot examine the correctness of the earlier decision or traverse beyond it. On the question of impossibility to carry out the direction, in T.R.Dhananjaya v. J.Vasudevan [(1995) 5 SCC 619], the Supreme Court held that "when the claim inter se had been adjudicated and had attained finality, it is not open to the respondent to go behind the orders and dilute the effect thereof".
16. Ofcourse earlier, the President has filed M.P.(MD) No.3/2010 in W.P.(MD)No.14222/2009 seeking for modification of the order passed in W.P.(MD)No.14222/2009 dated 16.08.2010 and the same came to be dismissed as withdrawn [vide order dated 01.11.2010]. Since the Civil Court has already seized up the matter, perhaps, the President might have thought fit to pursue the relief in the pending civil suit. Therefore in our considered view, Respondents cannot be faulted.
17. As pointed out earlier, in W.P.(MD) No.14222/2009, the inter se dispute between the parties had not been adjudicated. Only recording the statement of the counsels appearing for the parties, the Writ Petition was disposed off. Ofcourse in pursuance to the direction of the Court, Respondents have also displayed the board in S.F.No.4/3. Shifting of burial ground from S.F.No.4/3 to S.F.No.4/8 involves co-operation of the villagers. Death and funeral rites and place of burial involve emotions. At the time of death, grieved people cannot be compelled to burry the body in S.F.No.4/8. In the counter-affidavit filed by the officials, it is clearly stated that if the villagers are so compelled, definitely law and order problem would arise in the village. That apart death being occasional, the officials cannot be compelled to monitor the compliance of the order. Only because of the resistance by the villagers, it has become impracticable to implement the order and it cannot be said that there is wilful disobedience on the part of the Respondents.
18. Serious disputed questions of fact are involved and civil cases are also pending between the parties. The issues (i) whether S.F.No.4/3 has been used as burial ground from time immemorial; (ii) whether S.F.No.4/8 is feasible for being used as burial ground; (iii) whether S.F.No.4/8 is within the prohibited distance and other disputed questions are involved. Those issues are to be resolved only in the pending civil suits. Pendency of civil suit in O.S.No.601/2009 ought to have been brought to the notice of the Court. Petitioner who was also served with summons in the civil suit, now cannot take advantage of the order in W.P.(MD)No.14222/2009 and seek to enforce the shifting of burial ground by filing the Contempt Petitions. The issue of burial cum cremation ground being a sensitive issue, Court should be slow to haul all the officials for contempt.
19. The purpose of contempt is not to enforce the order, but to maintain the dignity of the institution. Contempt of Court is a matter between the Court and the contemner. In (2000) 4 SCC 400 [R.N.Dey and others v. Bhagyabati Pramanik and others], the Supreme Court has held as under:-
"7. We may reiterate that the weapon of contempt is not to be used in abundance or misused. Normally, it cannot be used for execution of the decree or implementation of an order for which alternative remedy in law is provided for. Discretion given to the court is to be exercised for maintenance of the court's dignity and majesty of law. Further, an aggrieved party has no right to insist that the court should exercise such jurisdiction as contempt is between a contemner and the court. It is true that in the present case, the High Court has kept the matter pending and has ordered that it should be heard along with the first appeal. But, at the same time, it is to be noticed that under the coercion of contempt proceeding, appellants cannot be directed to pay the compensation amount which they are disputing by asserting that claimants were not the owners of the property in question and that decree was obtained by suppressing the material fact and by fraud. Even presuming that the claimants are entitled to recover the amount of compensation as awarded by the trial court as no stay order is granted by the High Court, at the most they are entitled to recover the same by executing the said award wherein the State can or may contend that the award is a nullity. In such a situation, as there was no wilful or deliberate disobedience of the order, the initiation of contempt proceedings was wholly unjustified."
20. Learned counsel for Respondents submitted that Petitioner wants to take undue advantage of the order in W.P.(MD)No.14222/2009 and seeks to coerce the Respondents in shifting the burial ground which issue is otherwise seized up by the competent civil court. In our considered view since the disputed questions of facts are involved, the issue has to be resolved only in the civil court. We do not find any wilful disobedience of the order of the court in W.P.(MD)No.14222/2009 to punish the Respondents for Contempt of Court.
21. In the result, all the Contempt Petitions are dismissed. No costs.
bbr