Madras High Court
Vikram Kapoor vs K.Nachiappan on 8 June, 2022
Author: P.N.Prakash
Bench: P.N.Prakash, A.A.Nakkiran
Contempt Appeal No.1 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 21.04.2022
PRONOUNCED ON : 08.06.2022
CORAM
THE HONOURABLE Mr.JUSTICE P.N.PRAKASH
AND
THE HONOURABLE Mr.JUSTICE A.A.NAKKIRAN
Contempt Appeal No.1 of 2020
AND
C.M.P.No.2239 of 2020
1.Vikram Kapoor, I.A.S.
Chairman
Tamil Nadu Electricity Board
800, Anna Salai, Chennai-2
2.Krishnamoorthy
Chief Engineer (Personnel)
Tamil Nadu Electricity Board
800, Anna Salai, Chennai-2
3.R.Gopal
Superintending Engineer
Mettur Thermal Power Station
Mettur, Metturdam 636 406 .. Appellants
Vs.
1.K.Nachiappan
2.N.Selvaraj
3.R.Gandhi
4.N.Rajesh Kumar
5.Amirtham
6.T.Muniappan
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7.V.Kandappan
8.Pappathi
9.Manickam
10.P.Annamalai
11.Chinnathangam
12.Kozhanthaisamy @ Kolanthai Gounder
13.Selvakumari
14.Vellaiyan
15.K.Govindaraju
16.Chennakesavan
17.T.Govindaraju
18.C.Mohanraj
19.Palaniyappan
20.K.Dhanraj
21.R.Jayapal
22.Chinnapillai
23.Pachaiyammal
24.V.Selvam
25.G.Senthil Kumar
26.Pavayee
27.Nagammal
28.Govindammal
29.Sivagami
30.Iyyandurai
31.Eswari
32.Chinnammal
33.Chinnaponnu
34.Lakshmi
35.The Tahsildar
Mettur
36.The Chief Educational Officer
Salem .. Respondents
Contempt Appeal preferred under Section 19(1) of the Contempt of
Courts Act, 1971 to set aside the order dated 18.11.2019 passed in Contempt
Petition No.488 of 2015 in W.P.No.25985 of 2013.
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For Appellants : Mr.Anand Gopalan
Standing Counsel
For RR4,7,8,13,15, : Mr.N.L.Rajah
16,18,19,20,22,24 Senior Counsel
to 27,29,30 & 32 for Mr.M.R.Jothimanian
For RR 35 & 36 : Mr.S.Rajesh
Government Advocate
RR 23,28,31,33 : Died
RR 6 & 34 : Unclaimed
JUDGMENT
P.N.PRAKASH, J.
This contempt appeal is preferred against the order dated 18.11.2019 passed in Contempt Petition No.488 of 2015 in W.P.No.25985 of 2013.
2. The undisputed facts that are required for deciding this contempt appeal are as under :
2.1. In the year 2004, the Tamil Nadu Electricity Board (TNEB) commenced the establishment of Mettur Thermal Power Station (MTPS) in Salem District for generation of power. For this project, the TNEB acquired 358 house sites from private persons, by paying compensation as well by providing alternative house sites to them in S.Pudureddiyur and Chinnakavur Villages in Mettur Taluk. The project was titled “Upper Ash Dyke”.3/22
https://www.mhc.tn.gov.in/judis Contempt Appeal No.1 of 2020 2.2. Not satisfied with the compensation and allotment of alternative house sites, the displaced families lobbied with their M.L.A. to persuade the TNEB to give employment to one person in a family in TNEB. Pursuant to that, a meeting was held by the Chairman, TNEB on 24.08.2002 with the M.L.A. of Mettur Constituency and the representatives of S.Pudureddiyur and Chinnakavur Villages. The outcome of the discussions which is relevant to the dispute at hand finds place at paragraph 4 of the minutes dated 24.08.2002 and the same is extracted below:
”4. Regarding the employment opportunity, though it is not provided in Government Order except other than agricultural land owners, as a special case, subject to approval by the Board it will be recommended to Govt. for giving employment to those who have passed VIII Std. and completed 18 years of age. The employment will be considered for the Legal heir of the affected family, provided there is no other member employed in that family. This will be restricted to one person per family in addition to provision of alternative site and eligible compensation for the lands to be acquired. This recommendation will be sent to Govt. provided all the 358 families agree to this proposal in writing.” 2.3. A reading of the above shows that the TNEB had not unequivocally agreed to give employment, but, had only agreed to submit a recommendation to the Government in this regard, as it is the Government which has the final say in such matters.4/22
https://www.mhc.tn.gov.in/judis Contempt Appeal No.1 of 2020 2.4. Pursuant to the aforesaid minutes, the MTPS issued a proceedings dated 02.06.2003 stating that employment to 358 displaced families would be considered, after getting joint undertaking affidavits from the villagers of S.Pudureddiyur and Chinnakavur.
2.5. While so, one Ramalingam and others filed a writ petition in W.P.No.21237 of 2004, challenging the acquisition of land for providing alternative house sites to the displaced families, in which, this Court, by order dated 23.07.2004, granted stay. Ultimately, on 20.04.2010, W.P.No.21237 of 2004 was dismissed.
2.6. Therefore, again, the issue of providing employment surfaced and the MTPS sent a communication dated 24.04.2012 stating that the request for employment would be considered, after getting joint undertaking affidavits from the villagers of S.Pudureddiyur and Chinnakavur.
2.7. When things stood thus, in the year 2012, one Perumal and others filed a batch of writ petitions in W.P.No.9010 of 2012, etc. batch (46 WPs.), 5/22 https://www.mhc.tn.gov.in/judis Contempt Appeal No.1 of 2020 in which, a learned single Judge of this Court, by order dated 13.06.2012, directed the petitioners therein to get land loser certificate from the Revenue Divisional Officer, Mettur, instead of joint affidavits from the villagers of S.Pudureddiyur and Chinnakavur and that, on submission of such a certificate from the Revenue Divisional Officer, employment could be provided by the MTPS. Similar orders were passed in W.P.No.18806 of 2012, etc., batch (10 WPs.) and W.P.No.25985 of 2013.
2.8. Following so, one K.Nachiappan filed a writ petition in W.P.No.25985 of 2013 for a direction to the TNEB, to give employment to his son Shankar, in terms of the minutes of the Chairman dated 24.08.2002. It may be pertinent to extract the prayer in W.P.25985 of 2013 :
“This writ petition is filed under Article 226 of the Constitution of India for issuance of writ of mandamus, to direct the respondents to provide employment to the petitioner's son, viz., N.Shankar, as per the rehabilitation scheme formulated by the respondents dated 24.08.2002 without insisting the undertaking affidavit from all 358 displaced families.” 2.9. A reading of the above prayer shows that Nachiyappan wanted the TNEB not to insist upon undertaking affidavits from the 358 displaced families, for the purpose of giving employment to his son Shankar. In this writ 6/22 https://www.mhc.tn.gov.in/judis Contempt Appeal No.1 of 2020 petition, a learned single Judge of this Court passed the following order on 10.09.2013 :
“Considering the earlier orders passed by this Court in W.P.Nos.9010 to 9015 of 2012 batch and also considering the facts and circumstances of the case, this Court directs the petitioner to submit application before the Revenue Divisional Officer, Mettur for getting certificate certifying that his family is affected by the land acquisition proceedings and on production of such certificate to be issued by the Revenue Divisional Officer, Mettur, the respondents are directed to consider the claim of the petitioner under the Rehabilitation Scheme and pass orders on merits within ten weeks from the date of receipt of a copy of this order. It is made clear that if any such certificate is produced by the petitioner from the Revenue Divisional Officer, Mettur, the respondents are not expected to insist for filing of undertaking affidavit from 59 displaced families.” 2.10. Similarly, two persons, viz., Saraswathi and Muthusamy also filed writ petitions in W.P.Nos.21568 of 2013 and 21567 of 2013, respectively and obtained similar reliefs.
2.11. While the TNEB was dragging its feet in providing employment for the legal heirs of Nachiappan, Saraswathi and Muthusamy, they filed three separate contempt petitions viz., Cont.P.No.488 of 2015 (Nachiappan), Cont.P.1149 of 2015 (Saraswathi) and Cont.P.No.1151 of 2015 (Muthusamy), which came up before a learned single Judge on various dates.7/22
https://www.mhc.tn.gov.in/judis Contempt Appeal No.1 of 2020 2.12. When Cont.P.No.488 of 2015 (Nachiappan) came up before the learned single Judge on 26.03.2015, the following order was passed :
“3. The petitioner is directed to produce the educational qualification certificates to the Electricity Board within one week. Thereafter, the Electricity Board is directed to verify the same and other incidental proceedings to decide about the employment of the petitioner. It goes without saying that similarly placed persons like the petitioner should be given the same opportunity and decision should be taken with regard to those persons also."
[emphasis supplied] 2.13. Taking a cue from the aforesaid observation, 33 persons claiming themselves to be displaced persons filed a sub application in Sub Apln.
No.311 of 2015 and the learned single Judge suo motu impleaded them as petitioners 2 to 34 in Cont.P.No.488 of 2015, by order dated 30.09.2015. Thereafter, the learned single Judge issued several directions on various dates in the contempt proceedings and ultimately passed the following order on 18.11.2019, wherein, the following directions were issued :
“2. As far as the applications which have been rejected quoting reason no.(viii) are concerned, namely, nomination is not within the definition of 'family', the same have to be reconsidered in view of the decision taken by the Chairman as communicated through letter dated 16.12.2017 by the Chief Engineer (Personnel). The decision of the Chairman is to give employment to the grandchildren of the landlosers. It is also pointed out that one 8/22 https://www.mhc.tn.gov.in/judis Contempt Appeal No.1 of 2020 R.Ranjith Kumar, grandson of one of the landlosers had been given employment. Therefore, the rejection of the applications of 46 persons stating that the nominations made by them do not come within the definition of 'family' and they are only grandchildren is not acceptable. Their applications have to be reconsidered in view of the decision of the Chairman of the respondent Corporation as spelt out in the letter dated 16.12.2017.
3. As far as five applications which have been rejected based on reason (xi), i.e., being overaged as on 15.05.2017 is concerned, the said applications also require to be reconsidered. Since the lands were taken by virtue of land acquisition proceedings, as early as in 2002, the delay has debarred many persons on the ground of overage from getting employment. It is the fault of the respondent Corporation and therefore, either age relaxation should be given or some other nominees should be given.
4. A decision has to be taken in this regard and an affidavit has to be filed by the Chief Engineer (Personnel) within two weeks.
5. Post on 02.12.2019.
6. It is made clear that the case of 91 persons who are not before this Court would not form part of this order. However, if any of the aforesaid 91 persons, who are not before this Court, withdraws the proceedings initiated by them, the same can be considered by the respondent Corporation.” 2.14. Aggrieved by the aforesaid directions issued by the learned single Judge, the Chairman, Tamil Nadu Generation and Distribution and Corporation (TANGEDCO - the present avatar of TNEB) and two others have filed the present contempt appeal.9/22
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3. Heard Mr.Anand Gopalan, learned counsel appearing for the appellants/alleged contemnors and Mr.N.L.Rajah, learned Senior Counsel representing Mr.M.R.Jothimanian, learned counsel on record for the respondents (who were shown as petitioners in Cont.P.No.488 of 2015).
4. At the outset, Mr.N.L.Rajah submitted that this contempt appeal is not maintainable, as the contempt petition is still pending before the learned single Judge and that, the appellants can ventilate their grievances before him. In support of this submission, he placed reliance on the judgment dated 30.07.2021 passed in Contempt Appeal Nos.11 to 79 of 2020 (69 appeals), wherein, a Division Bench of this Court, in which, one of us (PNPJ) was a member, had passed an order dated 30.07.2021, holding that an appeal under Section 19 of the Contempt of Courts Act, 1971, would lie only against an order or decision to punish for contempt. He further submitted that aggrieved by the order dated 30.07.2021, the matter was taken on appeal to the Supreme Court which was dismissed in limine. Therefore, he submitted that this contempt appeal, against the interim directions issued by the learned single Judge, is not maintainable.
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5. The view that an appeal under Section 19 of the Contempt of Courts Act, 1971, is maintainable only when there is an order of punishment cannot hold water, in the light of the Division Bench decision to which, one of us (PNPJ) was also a member, in Shurbir Singh I.A.S., Government of Puducherry, Chief Secretariat, Puducherry v V.Gomathi [(2021) 7 MLJ 113]. The Division Bench alluded to the decision of the Supreme Court in TamilNad Mercantile Bank Shareholders Welfare Association v S.C. Sekar and Others [(2009) 2 SCC 784], wherein, at paragraph 40, it has been held as under :
“40. Although we need not go into the larger question of maintainability of the appeal in view of the fact that the matter had been referred to a three-Judge Bench in Dharam Singh v. Gulzari Lal [SLP (Civil) No. 18852 of 2005 decided on 19-9-2005], but prima facie, in view of the decision of this Court in Purshotam Dass [(1978) 2 SCC 370 : 1978 SCC (Cri) 195] there cannot be any doubt that in a situation where order has been passed adverse to the interest of the alleged contemnor an appeal would be maintainable particularly where a judgment has been passed by a court which is beyond its jurisdiction. This aspect of the matter has also been considered in R.N. Dey v. Bhagyabati Pramanik [(2000) 4 SCC 400] wherein it was opined: (SCC p. 405, para 10) “10. In our view the aforesaid contention of the learned counsel for the respondents requires to be rejected on the ground that after receipt of the notice, 11/22 https://www.mhc.tn.gov.in/judis Contempt Appeal No.1 of 2020 officers concerned tendered unconditional apology and after accepting the same, the High Court rejected the prayer for discharge of the rule issued for contempt action. When the court either suo motu or on a motion or a reference, decides to take action and initiate proceedings for contempt, it assumes jurisdiction to punish for contempt. The exercise of jurisdiction to punish for contempt commences with the initiation of a proceeding for contempt and if the order is passed not discharging the rule issued in contempt proceedings, it would be an order or decision in exercise of its jurisdiction to punish for contempt. Against such order, appeal would be maintainable.”
6. Coming to the contention of Mr.N.L.Rajah, premised on the judgment dated 30.07.2021 passed in Contempt Appeal Nos.11 to 79 of 2020, we find that the decision of the Supreme Court in TamilNad Mercantile Bank Shareholders Welfare Association (supra), was not brought to the notice of the Division Bench in that case. Furthermore, we find that the Supreme Court had, vide order dated 03.12.2021, dismissed in limine, the Special Leave to Appeal (C) Nos.14523 to 14660 of 2021 filed against the judgment dated 30.07.2021 passed in Contempt Appeal Nos.11 to 79 of 2020. As was pointed out by the Supreme Court in State of Orissa v Dhirendra Sundar Das [(2019) 6 SCC 270], an in limine dismissal does not constitute any declaration of law or binding precedent. 12/22 https://www.mhc.tn.gov.in/judis Contempt Appeal No.1 of 2020
7. Without resting on this aspect of the matter, a perusal of the impugned order would show that the learned single Judge had directed the appellants to reconsider the case of 46 persons for employment in view of their status as “grandsons of one of the land losers”. It is true that nowhere in the order dated 18.11.2019, has the learned single Judge recorded any wilful disobedience to any judgment, decree, direction, order, writ, or other process of court or a wilful breach of an undertaking given to a court which is a sine qua non in an action for civil contempt, in view of the definition contained in Section 2(b) of the Contempt of Courts Act, 1971.
8. Consequently, even if we are to hold that there is no civil contempt and that an appeal under Section 19 of the Contempt of Courts Act, 1971 was, therefore, not maintainable, it would nevertheless follow that the directions issued by the learned single Judge had substantially affected the rights of the appellants with the result that an appeal would be maintainable as the impugned order would qualify as a “judgment” within the meaning of Clause 15 of the Letters Patent, in view of the decision of the Supreme Court in TamilNad Mercantile Bank Shareholders Welfare Association (supra). 13/22 https://www.mhc.tn.gov.in/judis Contempt Appeal No.1 of 2020 The aforesaid decision was followed by another Division Bench of this Court in Vimal v M. Kannan [(2019) 2 CTC 593] holding that an order impleading third parties to a contempt petition was appealable under Clause 15 of the Letters Patent. Thus, looked at from any angle, we are unable to accede to the submissions of the learned Senior Counsel on the issue of maintainability. We, therefore, hold that this contempt appeal is maintainable.
9. The contention of Mr.Anand Gopalan, learned counsel for the appellants falls in a very narrow compass. According to him, only three persons viz., Nachiappan, Saraswathi and Muthusamy filed writ petitions and obtained certain orders. For the breach of the orders so obtained, they filed three individual contempt petitions, one of which is Cont.P.No.488 of 2015. In Cont.P.No.488 of 2015, the learned single Judge suo motu impleaded 33 persons, who had not even filed any writ petition, as petitioners, and started issuing directions to the TNEB to give relief to them also or face the music.
10. Refuting the aforesaid submission, Mr.N.L.Rajah contended that the learned single Judge was only trying to implement the order of the Chairman of the TNEB and nothing more.
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11. Mr.Anand Gopalan brought to the notice of this Court, the affidavit dated 17.07.2019 that was filed by Mr.Vikram Kapoor, I.A.S., Chairman of the TNEB in Cont.P.No.488 of 2015 before the learned single Judge, laying threadbare reasons for the inability of the TNEB to give employment to the persons who have been impleaded as petitioners. However, the learned single Judge had ignored the affidavit and proceeded to pass the order dated 18.11.2019, which is under challenge in this appeal.
12. At this juncture, it may be necessary to extract paragraph 11 from the affidavit dated 17.07.2019, sworn to by Mr.Vikram Kapoor, I.A.S., in Cont.P.No.488 of 2015:
“I state that in the year 2012, nearly 8 years after acquisition, a few persons approached this Hon’ble Court seeking employment on the ground that their housing sites were acquired for setting up the Mettur Thermal Project. I state that this Hon’ble Court merely directed the Board to consider the representation, without going into the merits of the case. I state the present contempt pertains to one such writ petition. I state that fearing contempt proceedings without going into the aspect that they were not entitled, merely to comply with the orders of this Court, employment was provided not only to the petitioner herein, but also to another 53 persons who had come to this Court. Thereafter, this Hon’ble Court directed the Board to extend the benefits to those who did not come before this Hon’ble Court also and directed the Board to entertain the applications till the cut-off date assigned by 15/22 https://www.mhc.tn.gov.in/judis Contempt Appeal No.1 of 2020 this Court. I state that out of such applications that have been received, 107 persons have been given employment. I state that the remaining 183 persons have been found ineligible and not given employment. I state that of these, 92 persons have made themselves party in this contempt by filing sub-applications and the remaining 91 persons are not before this Court in these proceedings. Some of them have filed independent writ petitions and the same are pending.”
13. This Court carefully considered the rival contentions.
14. The fact remains that 33 persons had not even filed any writ petition and only Nachiappan, Saraswathi and Muthusamy have filed three writ petitions, in which, certain orders were passed. Alleging non-compliance of the orders passed therein, they filed three contempt petitions and the TNEB granted relief to them.
15. The short question that falls for consideration of this Court is, whether the learned single Judge was legally correct in trying to give relief to 33 persons in a contempt proceedings that was initiated not at their instance, but, by one Nachiappan. Before answering this question, it will be profitable to refer to the definition of the word “civil contempt” in Section 2(b) of the Contempt of Courts Act :
“(b) “civil contempt” means wilful disobedience to any 16/22 https://www.mhc.tn.gov.in/judis Contempt Appeal No.1 of 2020 judgment, decree, discretion, order, writ or other process of a Court or wilful breach of an undertaking given to a Court.”
16. From a reading of the above, it is crystal clear that for initiating action for civil contempt, there should have been wilful disobedience of a judgment, decree, direction/order, writ or other process of a Court or a wilful breach of an undertaking given to a Court. In the absence of any of the above, there is no jurisdiction to initiate action for civil contempt under the Contempt of Courts Act.
17. In this case, admittedly, orders were passed in the writ petitions that were filed by Nachiappan, Saraswathi and Muthusamy. Axiomatically, contempt petitions would be maintained for breach of any order passed in the writ petitions filed by them. When the other 33 persons had not cared to approach the Court for any relief, the power vested on the High Court under the Contempt of Courts Act, can, by no stretch of imagination, be used to grant relief to them.
18. We are of the considered view that the learned single Judge exceeded his jurisdiction by enlarging the scope of the contempt proceedings 17/22 https://www.mhc.tn.gov.in/judis Contempt Appeal No.1 of 2020 to include persons who were not even parties to the writ petition, and by granting them relief by dispensing with the requirement of having their claims adjudicated in a properly constituted writ petition. It is elementary that when these 33 persons did not have a substantive order in the first place, it would be a contradiction in terms for them to allege the breach of a non-
existent order in their favour. We find that the approach of the learned single Judge in entertaining the claim of these 33 persons is clearly unsustainable, as it is in the teeth of the law laid down by the Supreme Court in State of J&K v. Sayeed Zaffar Mehdi [(1997) 9 SCC 640], wherein, it was observed thus:
“The scope of the original writ petition was limited and did not include matters in regard to future promotions. In the contempt application it was not open to the court to enlarge the scope of the original petition and also direct promotion. It is necessary to impress upon the High Court that contempt being a quasi-criminal matter, care should be taken to see that the scope of the original petition is not enlarged while making orders in contempt matters.” Ex consequenti, we have no hesitation in holding that the directions issued in the impugned order are vitiated in law as they are wholly without jurisdiction.
19. Mr.Vikram Kapoor, I.A.S., in paragraph 11 of his affidavit, has candidly stated that fearing contempt proceedings, the TNEB has been meekly complying with the directions issued by this Court from time to time.18/22
https://www.mhc.tn.gov.in/judis Contempt Appeal No.1 of 2020 We pause for a moment, not only to ponder over this averment, but to also introspect. The power of contempt under Article 215 of the Constitution of India and the Contempt of Courts Act is meant to subserve the administration of justice. Contempt jurisdiction cannot be used like a bull in a china shop to instill fear in the minds of litigants to secure compliance. Power to punish for contempt is given to Constitutional Courts in the fond hope that there would not be any misuse. Fearing imprisonment, if bureaucrats were to bend backward and forward before us, can we keep bulldozing them into submission? The answer to this question is an emphatic “no”. The entitlement of these 33 persons who have been impleaded as petitioners for getting employment cannot be tested in the contempt proceedings, when the Damocles' sword of imprisonment is kept hanging over the head of the appellants. The entitlements of the 33 persons seeking employment should have been first tested either in a writ petition or a suit but definitely not in a contempt petition filed by a third party.
20. In paragraphs 14 to 17 of the affidavit dated 17.07.2019 that has been filed by Mr.Vikram Kapoor, I.A.S., Chairman, TNEB, in Cont.P.No.488 of 2015, it is stated as follows :
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https://www.mhc.tn.gov.in/judis Contempt Appeal No.1 of 2020 “14. I humbly submit that the 86 persons now before this Hon’ble Court, if they are aggrieved over the rejections, ought to challenge the rejections if at all by separate litigation. They cannot use this contempt to arm twist the respondents.
15. I humbly submit that the remaining persons are ineligible for the reasons cited above. It is humbly submitted that the merits of the rejection or the reason for their ineligibility, cannot be canvassed by them in this contempt petition. If they are aggrieved they can challenge the same by way of separate proceedings and it cannot be challenge the same by way of separate proceedings and it cannot be alleged that the respondents have caused willful contempt.
16. It is only in this regard, that the Board has been constrained to file an application before this Hon’ble Court to recall its earlier orders and restrict the current contempt proceedings to only the persons who had filed the writ petitions and close the contempt petition.
17. I state that of the 60 persons who had filed writ petitions, 53 were given employment. Apart from it, in order to comply with the orders of this Hon’ble Court, 107 persons have been provided employment. I state that the respondent has granted relief beyond what has been ordered in the writ petition. It is therefore very humbly prayed that this Hon’ble Court may be pleased to close the contempt proceedings and pass appropriate orders.” Thus, factually also, the TNEB, in deference to the directions of this Court, has accommodated 107 persons by providing employment to them. Since relief has been granted to Nachiappan, the petitioner in Contempt Petition No.488 of 2015, nothing survives therein and hence, the same is liable to be 20/22 https://www.mhc.tn.gov.in/judis Contempt Appeal No.1 of 2020 closed in terms of this order.
In view of the foregoing discussion, this Contempt Appeal is allowed and the order dated 18.11.2019 passed by the learned single Judge in Contempt Petition No.488 of 2015 in W.P.No.25985 of 2013 is set aside. Connected Miscellaneous Petition is closed.
[P.N.P., J.] [A.A.N., J.]
08.06.2022
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P.N.PRAKASH, J.
AND
A.A.NAKKIRAN, J.
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