Madras High Court
J.Soundarapandiyan vs Mr.R.Syed Acudhahir on 2 November, 2022
Author: S.Vaidyanathan
Bench: S.Vaidyanathan, Senthilkumar Ramamoorthy
Cont.P.No.34 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.11.2022
CORAM
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
and
THE HONOURABLE MR. JUSTICE SENTHILKUMAR RAMAMOORTHY
Contempt Petition No.34 of 2022
J.Soundarapandiyan ..Petitioner
vs
1. Mr.R.Syed Acudhahir,
The Tahsildar,
Kurinchipadi Taluk,
Cuddalore District.
2. Mr.S.Rajasekaran
3. The Assistant Commissioner,
Hindu Religious and Charitable Endowment Board,
Cuddalore. ..Respondents
[RR2 and 3 were suo motu impleaded
as per the order of this Court dated 29.09.2022
in Cont.P.No.34 of 2022]
PRAYER : Petition filed under section 10 of the Contempt of Courts Act,
to punish the respondent for his willful disobedience of the order passed in
WP.No.6675 of 2021 dated 16.03.2021.
1 / 11
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Cont.P.No.34 of 2022
For Petitioner : Mrs.Hema Sampath, Senior Counsel
for M/s.B.Sundarapandiyan
For Respondents
for R1 : Mr.P.Kumaresan,
Additional Advocate General
Assisted by S.John J. Raja Singh,
Additional Government Pleader
for R2 : Mr.AR.L.Sundaresan, Senior Counsel
for Mr.P.Dinesh Kumar
for R3 : Mr.N.R.R.Arun Natarajan
Special Government Pleader (HR & CE)
Advocate
Commissioner : Mr.K.Madhu
-----
ORDER
This Contempt Petition is filed alleging willful disobedience of the order passed by this Court in WP.No.6675 of 2021 dated 16.03.2021.
2. This Court disposed of the said Writ Petition on 16.03.2021 on the following lines:
"It is made clear that if it is found that the lands which were gifted to the Government have been unlawfully misappropriated by private persons, appropriate action shall be taken by the official respondents in accordance with law."2 / 11
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3. Pursuant to the order of this Court, dated 16.03.2021, the Revenue Tahsildar, Kurinchipadi had conducted enquiry and passed a proceedings in Na.Ka.(Aa1)/925/2021, dated 26.07.2022 and a copy of the same is produced before this Court.
4. During the pendency of the contempt proceedings, this Court appointed Mr.K.Madhu, Advocate, as an Advocate Commissioner, and he has submitted his report on 29.08.2022, wherein it has been clearly stated that the Government lands have been encroached.
5. The learned Special Government Pleader appearing for the Assistant Commissioner, Hindu Religious and Charitable Endowment Board, Cuddalore HR & CE, appeared before this Court and submitted that they are going to take over the land in question.
6. It is seen that pursuant to the orders of this Court made in WP.No.6675 of 2021, dated 16.03.2021, the Revenue Tahsildar, after a thorough enquiry, issued the proceedings on 26.07.2022, in which, it has been stated as follows:
3 / 11
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Mizaplg;gLfpwJ/"4 / 11
https://www.mhc.tn.gov.in/judis Cont.P.No.34 of 2022
7. It is reported that steps have been taken by the Assistant Commissioner, Hindu Religious and Charitable Endowment Board, Cuddalore to take possession of the land in question. While initiation of removal of encroachment either by the Assistant Commissioner, HR & CE or any other officer, they shall consider the report of the Advocate Commissioner, dated 29.08.2022 and also look into the objections if any filed. The petitioner herein shall be made as a party to such proceedings and heard after calling him to make objections/statements/documents, if any.
8. At this juncture, Mr.G.Mohana Krishnan, learned Counsel wanted to represent on behalf of some third parties in this case. Since no third parties have been arrayed as party respondents either in the Writ Petition or in the Contempt Petition, we cannot render any findings on the submissions to be made by Mr.G.Mohana Krishnan, learned Counsel. Therefore, it is open to the third parties represented by Mr.G.Moahana Krishnan, learned counsel to work out their remedy before the appropriate Forum in the manner known to law. As Mr.G.Moahana Krishnan, learned counsel invited orders on his submission, we make it clear that if there are encroachments, 5 / 11 https://www.mhc.tn.gov.in/judis Cont.P.No.34 of 2022 the Government of HR & CE shall take immediate steps to remove encroachments as the Apex Court in number of cases have come down heavily on the Officers, who have not initiated action.
9. It is pertinent to mention here that since the contempt petition is pending, normally, the Authority concerned would be reluctant to take a decision on the application. In Priyanka Estates International Pvt. Ltd. v. State of Assam, reported in (2010) 2 SCC 27, the Supreme Court declined the appellant’s prayer for directing the respondents to regularize the illegal construction and observed as follows:
“It is a matter of common knowledge that illegal and unauthorised constructions beyond the sanctioned plans are on rise, may be due to paucity of land in big cities. Such activities are required to be dealt with by firm hands otherwise builders/colonisers would continue to build or construct beyond the sanctioned and approved plans and would still go scot-free. Ultimately, it is the flat owners who fall prey to such activities as the ultimate desire of a common man is to have a shelter of his own. Such unlawful constructions are definitely against the public interest and hazardous to the safety of occupiers and residents of multi-6 / 11
https://www.mhc.tn.gov.in/judis Cont.P.No.34 of 2022 storeyed buildings. To some extent both parties can be said to be equally responsible for this. Still the greater loss would be of those flat owners whose flats are to be demolished as compared to the builder.”
10. In yet another decision pertaining to buildings constructed in violation of rules, in the case of Shanti Sports Club v. Union of India reported in (2009) 15 SCC 705, the Supreme Court has held as under:
''This Court has, from time to time, taken cognizance of buildings constructed in violation of municipal and other laws and emphasised that no compromise should be made with the town planning scheme and no relief should be given to the violator of the town planning scheme, etc. on the ground that he has spent substantial amount on construction of the buildings, etc. Unfortunately, despite repeated judgments by this Court and the High Courts, the builders and other affluent people engaged in the construction activities, who have, over the years shown scant respect for regulatory mechanism envisaged in the municipal and other similar laws, as also the master plans, zonal development plans, sanctioned plans, etc., have received encouragement and support from the State apparatus. As and when the Courts have passed orders or the 7 / 11 https://www.mhc.tn.gov.in/judis Cont.P.No.34 of 2022 officers of local and other bodies have taken action for ensuring rigorous compliance with laws relating to planned development of the cities and urban areas and issued directions for demolition of the illegal/unauthorised constructions, those in power have come forward to protect the wrongdoers either by issuing administrative orders or enacting laws for regularisation of illegal and unauthorised constructions in the name of compassion and hardship. Such actions have done irreparable harm to the concept of planned development of the cities and urban areas. It is high time that the executive and political apparatus of the State take serious view of the menace of illegal and unauthorised constructions and stop their support to the lobbies of affluent class of builders and others, else even the rural areas of the country will soon witness similar chaotic conditions.”
11. A First Bench of this Court in Contempt Petition No.1769 of 2015 and Contempt Petition No.2166 of 2015 (Suo motu), took up a matter pertaining to demolition of the violated portions of a building and insisted that the unauthorised constructions are decimated. Relevant portion of the said order reads thus:
''4. We have also perused the report of the 8 / 11 https://www.mhc.tn.gov.in/judis Cont.P.No.34 of 2022 Commissioner, who is present in Court. We have impressed upon him the importance of ensuring that there is at least no continuing unauthorised construction by issuing stop work notices immediately when such unauthorised construction is detected rather than waiting for comparison of the plans. We have also emphasised the importance of:
(a) Checking the buildings from the basement, ground floor onwards, so that the set backs are adhered to;
(b) Ensure that the on-going construction complies with the norms;
(c) The delinquent officers are brought to book not by mere censure, stoppage of increment, but by more severe consequences like compulsory retirement and dismissal from service. We say so, as despite, mammoth amount of unauthorised construction, we are informed that not a single person has suffered the punishment of dismissal from service or even compulsory retirement atleast for the last five years.
(d) Not to let any unnecessary interference with his work by the persons, who have nothing to do with his job and that he should be able to do his task without fear or favour, for which necessary Court protection is available.'' 9 / 11 https://www.mhc.tn.gov.in/judis Cont.P.No.34 of 2022
12. On a perusal of the said proceedings, it is apparent that the order of this Court has been complied with and nothing survives for further adjudication in this Contempt Petition, as the scope of contempt is very limited, this contempt petition is closed.
13. We deeply appreciate the assistance recorded by Mr.K.Madhu, learned Advocate Commissioner in order to give quietus to this petition.
[S.V.N., J] [S.K.R., J] 02.11.2022 Speaking Order: Yes / No pvs 10 / 11 https://www.mhc.tn.gov.in/judis Cont.P.No.34 of 2022 S.VAIDYANATHAN, J.
and SENTHILKUMAR RAMAMOORTHY, J.
pvs Contempt Petition No.34 of 2022 02.11.2022 11 / 11 https://www.mhc.tn.gov.in/judis