Madras High Court
R.Ponnathal vs P.Lingiyar on 3 November, 2007
Author: P.R.Shivakumar
Bench: P.K.Misra, P.R.Shivakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 03/11/2007 CORAM: THE HONOURABLE MR.JUSTICE P.K.MISRA and THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Contempt Petition (MD) No.167 of 2007 1.R.Ponnathal 2.V.Poongodi ... Petitioners vs. 1.P.Lingiyar, S/o.K.M.Poornachari, The Tahsildar, Ottanchatram, Dindigul District. 2.Malarvizhi, The Revenue Divisional Officer, Palani, Dindigul District. 3.Vasuki, The District Collector, Dindigul District, Dindigul. 4.P.Thangaraj alias P.C.Thangam, President of Kallimandayam Panchayat, Ottanchatram Taluk, Dindigul District. (R-4 impleaded suo motu as per the order of this Court dated 21.08.2007 made in Cont.P.No.167/2007 and W.P.Nos.5361,5362/2006, and 773, 2233 to 2239 of 2003) ... Respondents Contempt Petition filed under Sections 10,11 and 12 of the Contempt of Courts Act 1971 to punish the respondents for their act of wilful disobedience and violation of the undertaking and the order passed dated 14.06.2006 in I.A.No.246 of 2006 in O.S.No.98 of 2006 by the Sub Court, Palani under the provisions of the Contempt of Courts Act. !For Petitioners ... Mr.G.Prabhu Rajadurai ^For Respondent Nos.1 to 3 ... Mr.S.Ramasamy, Additional Advocate General For Mr.R.Janakiramalu Special Government Pleader For 4th Respondent ... Mr.Veerakathiravan For Mr.K.Ashok Kumar Ram :ORDER
P.R.SHIVAKUMAR, J The petitioners have approached this Court by invoking Sections 10,11 and 12 of the Contempt of Courts Act, 1971 for punishing the respondents 1 to 3 for the alleged acts of contempt committed by them in violation of the order of injunction passed by the Subordinate Judge, Palani in I.A.No.246 of 2006 in O.S.No.98 of 2006. However, the fourth respondent herein has been impleaded suo motu by order of this Court dated 21.08.2007.
2. The facts giving rise to the initiation of the proceedings under the Contempt of Courts Act can be stated, briefly, as follows:
(i) The property measuring hectares 2.77.5 comprised in Old Survey No.391/B1 in Kallimandayam Village had originally been classified as village natham in revenue records. In the UDR Scheme, the said survey number was sub-
divided into 21 parts and New Survey Nos,1529/1 to 1529/21 were assigned. Survey No.1529/1 has been classified as Odai and the rest of the sub-divisions, namely Survey Nos.1529/2 to 1529/21 have been classified as house sites. The petitioners herein have been issued pattas in respect of Survey No.1529/9 and Survey No.1529/16 respectively.
(ii) The fourth respondent herein, the then President of Kallimandayam Panchayat, questioning the correctness of the sub-divisions and assignment of pattas, moved an application before the Revenue Divisional officer, Palani for cancellation of the pattas issued in respect of all 20 sub-divisions, namely 1529/2 to 1529/21. Accordingly, the Revenue Divisional Officer, Palani passed an order on 12.10.2000, cancelling the pattas in respect of all the above said 20 sub-divisions and more particularly the pattas issued in favour of the petitioners herein in respect of Survey Nos.1529/9 and 1529/16.
(iii) As against the said order of the Revenue Divisional Officer, Palani, the petitioners herein and others preferred a revision before the District Revenue Officer, Dindigul, who in turn by his order dated 04.01.2002 remanded the matter back to the Revenue Divisional Officer, Palani with a direction to make a spot visit and then decide after giving a reasonable opportunity to the revision petitioners therein to represent their case. The relevant portion of the order in vernacular language is extracted here under:
"epyeph;thf Mizah; fojk; g.K.vz;.Bf/58235/91, ehs;: 28.8.92y; bjhptpf;fg;gl;Ls;sthW rptpy; Bfhh;l; tHf;F epYitapy; cs;sBghJ vt;tpj cj;jut[k; gpwg;gpf;f nayhJ>. tHf;fpy; Kotpw;Bfw;g gHdp Bfhl;lhl;rpah; jw;BghJs;s epiyapid nlMa;t[ bra;J kDjhuh;fSf;F jf;ftha;g;gspj;J Kot[bra;jpl nt;tHf;F, gHdp Bfhl;lhl;rpaUf;F kPl;lif bra;ag;gLfpwJ."
(iv) Thereafter, the fourth respondent herein filed a writ petition in W.P.No.42786/2002 in the High Court of Madras for a writ of Mandamus directing the implementation of the order of the Revenue Divisional Officer, dated 12.10.2000 suppressing the fact that the said order of the Revenue Divisional officer had already been set aside by the District Revenue Officer and the matter had been remanded to the Revenue Divisional Officer for fresh disposal. Obviously the fourth respondent, did not implead either of the petitioners herein or any one of the persons in whose favour pattas had been issued in respect of the above said sub-divisions as parties to the writ petition. Under such circumstances, this Court, after hearing the counsel for the petitioner in the said writ petition (fourth respondent herein) and the learned Additional Government Pleader, passed an order on 29.11.2002 directing removal of the encroachments. Admittedly the said order was passed without any notice to either of the petitioners herein.
(v) Thereafter the petitioners 1 and 2 herein filed W.P.Nos.773 of 2003 and 2233 of 2003 respectively, to restrain the authorities from initiating any action based on the order of the Revenue Divisional Order dated 12.10.2000. They also filed miscellaneous petitions praying for interim injunction pending disposal of the writ petitions. Of course initially interim injunction had been granted in both the petitions. Subsequently, by an order dated 18.08.2003 the interim injunctions were made absolute, but with an observation that the respondents therein would be at liberty to remove the encroachments made in the channel poramboke. Both the writ petitions are still pending.
(vi) Meanwhile, in 1998 itself the first petitioner had filed a suit in O.S.No.221/1998 on the file of the Court of District Munsif, Palani for permanent injunction restraining P.Thangaraj @ P.C.Thangam, President of Kallimandayam Panchayat, the fourth respondent herein, from disturbing her peaceful possession and enjoyment in respect of the suit properties. Sub- division 1529/9 had been shown as the second item of the suit properties therein. After trial, the said suit was decreed in respect of the first item of the suit property and in other respects, the suit was dismissed. The appeal filed by the first petitioner, namely A.S.No.33 of 2005 was allowed and the suit was decreed in respect of Survey No.1529/9 also. The judgment was pronounced on 06.06.2006 by the learned Subordinate Judge, Palani.
(vii) As the respondents 1 to 3 herein were not parties to the said suit and the appeal arising there from, apprehending disturbance from them, the petitioners 1 and 2 herein filed another suit in O.S.No.98 of 2006 for declaration and injunction in respect of Survey Nos.1529/9 and presumably Survey No.1529/16 but without giving new survey number and citing the old survey number and boundaries alone. They had also claimed right of ingress and egress in respect of a portion of New Survey No.1529/1 classified as Odai. In I.A.No.246 of 2006 in O.S.No.98 of 2006 on the file of the learned Sub Court, Palani, an interim order of injunction was passed on 14.06.2006. The same was extended till 06.07.2006. Thereafter, the said injunction petition was dismissed on 21.03.2007 as not pressed based on the endorsement made by the counsel for the petitioners therein requesting for the dismissal of the same as not pressed without prejudice to their case in the suit.
(viii) Meanwhile suppressing the fact that there was a decree of permanent injunction against the fourth respondent herein passed by the learned Subordinate Judge and that an order of interim injunction passed I.A.No.246 of 2006 in O.S.No.98 of 2006 was in force, the fourth respondent herein filed a writ petition in W.P.No.5062 of 2006 for a direction to implement the order passed in W.P.No.42786 of 2002, dated 29.11.2002, here again, without impleading either of the petitioners herein as parties to the writ petition. The said writ petition was disposed of accepting the affidavit filed by the third respondent therein, who is the first respondent in this contempt petition, undertaking to take all necessary and possible steps to remove the encroachments. Meanwhile the petitioners herein filed two writ petitions in W.P.Nos.5361 and 5362 of 2006 against the officials for the issue of a writ of Mandamus forbearing them from demolishing the houses of the petitioners put up in the above said survey numbers. However, at the time of hearing of the writ petition, at the stage of admission, the respondents 1 to 3 herein filed a memo stating that the demolition of houses were completed on 05.07.2006 itself and hence, no order of injunction could be passed. The first respondent herein also filed an affidavit on 07.07.2006 that the encroachments were removed on 05.07.2006.
(ix) Under these circumstances, the present contempt petition has been filed originally against the respondents 1 to 3 herein. This Court, after initially hearing the arguments of the petitioners and the learned Additional Advocate General for the respondents 1 to 3, was of the view that the fourth respondent herein was the person instrumental for the removal of the alleged encroachments and hence this Court suo motu added the fourth respondent herein for initiating contempt proceedings against him also.
3. The point for determination in this contempt petition is:-
"whether each one of the respondents or any one of the respondents has committed wilful disobedience of the order of interim injunction by the learned Subordinate Judge in I.A.No.246 of 2006 in O.S.No.98 of 2006 and hence, liable to be punished for contempt?".
4. We have heard the submissions made on either side and perused the materials available on record.
5. It is obvious from the facts admitted and the materials on record that an order of interim injunction was passed by the Learned Subordinate Judge, Palani in I.A.No.246 of 2006 in O.S.No.98 of 2006 against the respondents 1 to 3 herein on 14.06.2006 itself which order remained in force till 06.07.2006, more particularly on 05.07.2006, the date of the alleged act of contempt was committed. As against the fourth respondent, admittedly a decree passed by the Learned Subordinate Judge in A.S.No.33 of 2005, dated 06.06.2006 for perpetual injunction was in force as on the crucial date, namely 05.07.2006. Even though there was an order of injunction against the respondents 1 to 3 herein, passed by the Learned Subordinate Judge, Palani in I.A.No.246 of 2006 in O.S.No.98 of 2006, not to interfere with the possession and enjoyment of their properties comprised in S.Nos.1529/9 and 1529/16, the first respondent herein has proceeded with the demolition of the superstructures standing thereon in the guise of removal of encroachments in Odai Poramboke on 05.07.2006. It seems that the first respondent acted on the advice and direction of the District Revenue Officer, Dindigul by his communication dated 04.07.2006, which inturn was based on the even dated legal opinion in writing given by the learned Special Government Pleader.
6. It is contended on behalf of the first appellant (Tahsildar) that though the act of removal of the alleged encroachments in S.Nos.1529/9 and 1529/16, at the outset, would seem to be an act of disobedience to the Prohibitary order of injunction passed by the learned Subordinate Judge, the same could not be construed as a wilful disobedience amounting to contempt of Court in the light of the following circumstances showing he had the choice between the devil and the deep blue sea. No doubt, the order of interim injunction passed by the Learned Subordinate Judge, Palani in I.A.No.246 of 2006 in O.S.No.98 of 2006 was in force as on the date of alleged act of contempt, namely 05.07.2006. At the same time, there was a parallel order dated 29.11.2002 passed by the High Court in W.P.No.42786 of 2002 directing implementation of the order of the Revenue Divisional Officer and removal of encroachments. of course there was a rider attached to the said order of the High Court to the effect that the encroachments should be removed, if there was no order of any competent court disabling the revenue authorities from implementing the Revenue Divisional Officer's order. In W.P.M.P.No.951 of 2003 in W.P.No.773 of 2003 and W.P.M.P.No.2821 of 2003 in W.P.No.2233 of 2003, while making the order of injunction absolute till the disposal of the writ petitions, an observation has also been made that it was open to the respondents therein to remove the encroachments made by the petitioners on the channel portion. It should also be noted that the first respondent was given legal opinion to the effect that he would be held for contempt for not implementing the order of the High Court dated 29.11.2002 made in W.P.No.42786 of 2002, when a further writ petition, namely W.P.No.5062 of 2006, was filed by the fourth respondent herein for a writ of mandamus directing implementation of the said order. Under the above said circumstances alone, the respondent No.1 seems to have been misled to think that he could proceed with the removal of encroachments despite there being an interim order of injunction passed by the Civil Court, namely Sub Court, Palani. However the order dated 29.11.2002 passed in W.P.No.42786 of 2002 was qualified by a rider that the officials could proceed with the removal of encroachment provided there was no order of any competent Court disabling the revenue authorities from implementing the order of the Revenue Divisional Officer. In fact the order of the District Revenue Officer dated 04.01.2002 itself was no longer in existence in view of the order of the District Revenue Officer remanding the matter back for a fresh consideration to the Revenue Divisional Officer. In such view of the matter, we are not in a position to accept the contention raised on behalf of respondent No.1 that there was no violation of the order of the learned Subordinate Judge, Palani. On the other hand, taking into consideration the facts and circumstances under which the first respondent was made to believe that he would have held for contempt of the order of the High Court if the encroachments were not removed, we do accept that there was no wilful disobedience or violation of the order of the Subordinate Judge by the first respondent herein. Even assuming that the act of the first respondent in proceeding with the removal of alleged encroachments without seeking clarification in the light of the order of interim injunction passed by the learned Subordinate Judge, Palani may amount to contempt, we are of the considered view that the unconditional apology tendered by the first respondent has got to be accepted and hence, we do not propose to convict the first respondent herein.
7. So far as the respondents 2 and 3 are concerned, sufficient allegations have not been made to show that they were directly involved in the demolition of the houses of the petitioners in the guise of removal of alleged encroachments. Admittedly the removal of encroachments were made at the direction and in the presence of the first respondent herein. The affidavit filed in support of the Contempt Petition merely contains a recital that the first respondent was personally present at the time of demolition. No similar averment regarding respondents 2 and 3 has been incorporated in the affidavit. The petitioners have not stated anywhere in the affidavit that either the second respondent or the third respondent was present at the time of demolition of the houses. The petitioners have also failed to prove that either the second respondent or the third respondent issued any direction or order, either oral or written to the first respondent to remove the encroachments. In addition, the reasons assigned in the foregoing paragraphs to come to the conclusion that the act of the first respondent, despite being in violation of the order of the Learned Subordinate Judge, Palani, could not be termed wilful disobedience of the said order will apply mutatis mutandis to the respondents 2 and 3 also. Therefore, we do not think that the allegations in the petition would be sufficient to warrant a finding that the respondents 2 and 3 have also committed the act of contempt as alleged in the petition. Hence, we come to the conclusion that the petition as against the respondents 2 and 3 is bound to fail.
8. So far as the fourth respondent is concerned, it is quite obvious that not only he had filed W.P.No.42786 of 2002 in suppression of the fact that the order of the Revenue Divisional Officer dated 12.10.2000 cancelling the sub- division and issuance of patta had been set aside by the order of the District Revenue Officer dated 04.01.2002, but also it is quite clear that again he filed Writ Petition No.5062 of 2006 for a mandamus directing the implementation of the order of the High Court dated 29.11.2002 made in W.P.No.42786 of 2002 and for the removal of the alleged encroachments. In both the writ petitions, he had not made the petitioners herein as parties and failed to disclose the fact that there was an order of interim injunction passed by the Subordinate Judge, Palani in I.A.No.246 of 2006 in O.S.No.98 of 2006 against the respondents 1 to 3 herein and a decree of perpetual injunction had been passed in A.S.No.33 of 2005 on the file of the Sub Court, Palani against the fourth respondent herein. Therefore, without any hesitation, whatsoever, we come to the conclusion that by moving such repeated writ petitions suppressing the order of the civil Court and thereby causing the removal of the alleged encroachments in violation of the order of injunction, the fourth respondent has committed wilful disobedience of the said order, which, no doubt, amounts to contempt of the Subordinate Court punishable under Section 10 of the Contempt of Courts Act, 1971. However taking into account the unconditional apology tendered by the fourth respondent before us, who is personally present, we propose to show some kind of leniency in the matter of punishment.
9. For all the reasons stated above, while recording a finding that the fourth respondent has committed a contempt of the Court subordinate to the High Court punishable under Section 10 of the Contempt of Courts Act, 1971, we do accept and record the unconditional apology tendered by him, refrain from imposing any sentence of imprisonment and propose to impose fine alone with a direction to collect the fine amount from the fourth respondent and pay the same to the petitioners as compensation. The loss sustained by the petitioners may be more. However, maximum fine that can be imposed under Section 12 of the Contempt of Courts Act, 1971 is only Rs.2,000/-. Hence we propose to impose a fine of Rs.2,000/- which amount shall be collected and paid to the petitioners as compensation.
10. Before parting with the case, we want to express our displeasure with the attitude of the officials in passing orders based on the directions of the Court without considering such orders in their entirety and especially the qualifying observations made in such orders. We have come across several instances in which a direction issued by the High Court for the removal of encroachments "by following due process of law" were responded by the officials by simply issuing an order or show cause notice, merely referring to the order of the Court and stating that the Court has directed removal of encroachment, without even referring to a particular provision of law. Such an approach is highly reprehensible.
11. In the result, this Contempt Petition is disposed of acquitting the respondents 1 to 3 and convicting the fourth respondent and imposing a fine of Rs.2,000/- to be collected from him and paid as compensation to the petitioners. The fine amount shall be paid within 30 days and in default, the fourth respondent shall undergo simple imprisonment for 5 days (five days).
SML To:
1.P.Lingiyar, S/o.K.M.Poornachari, The Tahsildar, Ottanchatram, Dindigul District.
2.Malarvizhi, The Revenue Divisional Officer, Palani, Dindigul District.
3.Vasuki, The District Collector, Dindigul District, Dindigul.
4.P.Thangaraj @ P.C.Thangam, President of Kallimandayam Panchayat, Ottanchatram Taluk, Dindigul District.