Madras High Court
S.Tamilarasi vs S.Baskaran on 5 August, 2022
Bench: Munishwar Nath Bhandari, D.Bharatha Chakravarthy
Cont P.No.436 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.08.2022
CORAM :
THE HON'BLE MR.MUNISHWAR NATH BHANDARI, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Cont P.No.436 of 2022
S.Tamilarasi ... Petitioner
Vs
1.S.Baskaran,
Zonal Officer, Zone - XIV
Chennai City Municipal Corporation
Puzhuthivakkam Main Road
Puzhuthivakkam
Chennai - 600 091.
2.M.Pugazhendhi
Executive Engineer Zone - XIV
Chennai City Municipal Corporation
Puzhuthivakkam Main Road
Chennai - 600 091.
3.Mohanavadivel
Assistant Executive Engineer
Division 188, Zone – XIV
Chennai City Municipal Corporation
Puzhuthivakkam Main Road
Chennai - 600 091.
4.Balaji
Assistant Engineer,
Division 188 Zone – XIV
Page 1 of 7
https://www.mhc.tn.gov.in/judis
Cont P.No.436 of 2022
Chennai City Municipal Coporation
Dr.Ambedkar Road
Chennai - 600 091. ... Respondents
Prayer: Petition filed under Section 11 of the Contempt of Courts Act to
punish the respondent for disobeying the order of the court in WP
No.2330 of 2020 dated 15.9.2020.
For the Petitioner : Mr.S.N.Ravichandran
For the Respondents : Mr.K.Raja Srinivas
ORDER
(Order of the Court was made by the Hon'ble Chief Justice) This contempt petition has been filed alleging non-compliance of the order dated 15.09.2020 in W.P.No.2330 of 2020. The operative portion of the order in paragraph 4 is quoted hereunder:
“4. Considering the said submissions made by the petitioner, we direct the respondent Nos.2 to 5 in WP No.2330 of 2020 to take appropriate action by taking into consideration of the relevant materials including the communication sent by the concerned Tahsildar, the approved plan issued by the Chennai Metropolitan Development Authority on the representation of the petitioner Page 2 of 7 https://www.mhc.tn.gov.in/judis Cont P.No.436 of 2022 and to take appropriate action over the alleged encroachment, if any, by restoring the public road. Appropriate action will be taken within a period of 12 weeks from the date of receipt of copy of this order duly following the procedure of law.”
2. For compliance of the above order, Chennai Metropolitan Development Authority sought a report from the Tahsildar, Sholinganallur Taluk, who had informed that there is no encroachment in the roads/streets in S.Nos.99, 100, 111 and 112 of Madipakkam Village. A serious dispute on the aforesaid is raised by learned counsel for the petitioner, who submits that encroachment exists and the road was blocked by encroaching the land and therefore, it would not lie in the mouth of the respondents now to submit that there is no encroachment.
3. We have considered the submissions made by the parties and while considering the contempt petition, we cannot open the matter to decide the writ petition on merits. Learned Division Bench did not record a categorical finding about the encroachment, rather, Page 3 of 7 https://www.mhc.tn.gov.in/judis Cont P.No.436 of 2022 appropriate direction was given to the authorities that if any encroachment is found, to take action. In compliance of the order, action taken may be right or wrong, but cannot be subject-matter of comtempt. It may be subject-matter of a fresh litigation, in view of the judgment of the Apex Court in the case of J.S. Parihar v. Ganpat Duggar, (1996) 6 SCC 291. The relevant paragraph of the said judgment is quoted hereunder:
"6. The question then is whether the Division Bench was right in setting aside the direction issued by the learned Single Judge to redraw the seniority list. It is contended by Mr S.K. Jain, the learned counsel appearing for the appellant, that unless the learned Judge goes into the correctness of the decision taken by the Government in preparation of the seniority list in the light of the law laid down by three Benches, the learned Judge cannot come to a conclusion whether or not the respondent had wilfully or deliberately disobeyed the orders of the Court as defined under Section 2(b) of the Act. Therefore, the learned Single Judge of the High Court necessarily has to go into the merits of that question. We do not find that the contention is well founded. It is seen that, admittedly, the respondents had prepared the seniority list on 2-7- Page 4 of 7 https://www.mhc.tn.gov.in/judis Cont P.No.436 of 2022 1991. Subsequently promotions came to be made. The question is whether seniority list is open to review in the contempt proceedings to find out whether it is in conformity with the directions issued by the earlier Benches. It is seen that once there is an order passed by the Government on the basis of the directions issued by the court, there arises a fresh cause of action to seek redressal in an appropriate forum. The preparation of the seniority list may be wrong or may be right or may or may not be in conformity with the directions. But that would be a fresh cause of action for the aggrieved party to avail of the opportunity of judicial review. But that cannot be considered to be the wilful violation of the order. After re-exercising the judicial review in contempt proceedings, a fresh direction by the learned Single Judge cannot be given to redraw the seniority list. In other words, the learned Judge was exercising the jurisdiction to consider the matter on merits in the contempt proceedings. It would not be permissible under Section 12 of the Act. Therefore, the Division Bench has exercised the power under Section 18 of the Rajasthan High Court Ordinance being a judgment or order of the Single Judge; the Division Page 5 of 7 https://www.mhc.tn.gov.in/judis Cont P.No.436 of 2022 Bench corrected the mistake committed by the learned Single Judge. Therefore, it may not be necessary for the State to file an appeal in this Court against the judgment of the learned Single Judge when the matter was already seized of the Division Bench."
[emphasis supplied]
4. In view of the above, we do not find any ground to proceed with the contempt petition. However, keeping the issue open, we close the contempt petition, giving liberty to the petitioner that if he is so aggrieved by the action or decision taken by the respondents, he may launch a fresh litigation. The contempt petition is closed. The notice of contempt is discharged.
(M.N.B., CJ.) (D.B.C., J.) 05.08.2022 Index : Yes/No tar Page 6 of 7 https://www.mhc.tn.gov.in/judis Cont P.No.436 of 2022 M.N.Bhandari, CJ.
and D.Bharatha Chakravarthy, J.
(tar) Cont P.No.436 of 2022 05.08.2022 Page 7 of 7 https://www.mhc.tn.gov.in/judis