Madras High Court
Pattali Makkal Katchi vs The Addl. Chief Secretary
Author: M.Dhandapani
Bench: M.Dhandapani
____________
W.P. No.24426/2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on Pronounced on
29.08.2022 12.09.2022
CORAM
THE HONOURABLE MR. JUSTICE M.DHANDAPANI
W.P. NO.24426 OF 2014
AND
M.P. NO.1 OF 2014
Pattali Makkal Katchi
Rep. by its President
G.K.Mani
No.63, North Muthu Naicken Street
Teynampet, Chennai 600 018. .. Petitioner
- Vs -
1. The Addl. Chief Secretary
Commissioner of Revenue Administration
Revenue Department and Mitigation Dept.
Ezhilagam, Chepauk
Chennai 600 005.
2. The Divisional Engineer
Highways, Construction &
Maintenance Division
Villupuram, Villupuram Dist. .. Respondents
1
https://www.mhc.tn.gov.in/judis
____________
W.P. No.24426/2014
Writ Petition filed under Article 226 of the Constitution of India praying
this Court to issue a writ of certiorari calling for the records relating to the
proceedings in SR. No.60/HD/VPM/2013 dated 08.07.2013 and its consequential
notice in SR No.2 to 143/HD/2013 dated 27.08.2014 of the 1st respondent herein
and quash the same.
For Petitioner : Mr. K.Balu
For Respondents : Mr. P.Kumaresan, AAG, assisted by
Mr. G.Krishnaraja, AGP
ORDER
The event conducted by the political party of the petitioner, which has resulted in quarrel and in violation of the conditions imposed by the law enforcing agency resulting in property damage has resulted in the issuance of the impugned proceedings and notice by the 1st respondent, which has resulted in the filing of the present writ petition.
2. It is the case of the petitioner that Pattali Makkal Katchi is one of the political parties in the State of Tamil Nadu, which critically analyzes the policies, acts and deeds of the Government, both State and Centre and makes unbiased 2 https://www.mhc.tn.gov.in/judis ____________ W.P. No.24426/2014 comments and is functioning in the larger interest of the public. The present petition is the off-shoot of the event which was held by the petitioner on 25.4.2013 after obtaining requisite permission from the law enforcing agency. It is the further case of the petitioner that during the said event, wordy quarrel arose, which resulted in damage to the property. The law enforcing agency arrested the party workers and party members.
3. It is the further case of the petitioner that as a consequence of the same, demonstration and agitation was contemplated on 30.4.2013 in which more than 500 members participated and also party members of Vanniar Sangam had also participated in which stones were pelted on vehicle and public property was damaged, including damage to the RCC slab culvert at Mailam-Pondy road using Gel Type Detonator. It is the further case of the petitioner that the cost of the damage was assessed at Rs.18 Lakhs and a case in crime No.110/2013 was registered on the file of the Inspector of Police, Vanur Police Station, Villupuram District u/s 427, 307 IPC r/w 4 of Explosives Act and Section 3 of PPDL Act. It is the further case of the petitioner that even according to the FIR, the accused are unknown persons and the investigation is said to be pending. It is the further 3 https://www.mhc.tn.gov.in/judis ____________ W.P. No.24426/2014 case of the petitioner that no member of the petitioner’s party was involved in the said crime and no proof thereof has been submitted.
4. Whileso, the 1st respondent, without appreciating the aforesaid facts, erroneously entertained the application of the 2nd respondent and issued summons to the petitioner herein for enquiry on 24.7.2013 to which the petitioner appeared on the said day along with its counsel and also appeared on the subsequent dates. It is the further case of the petitioner that the application filed by the 2nd respondent before the 1st respondent u/s 10 (2) is not maintainable in law and the same is a sheer abuse of process of law and the entertaining of the said application is without jurisdiction. Therefore, the present petition is filed.
5. Learned counsel appearing for the petitioner submits that the allegations leveled against the petitioner party would not attract Sections 9 and 10 of the Tamil Nadu Property (Prevention of Damage and Loss) Act, (for short ‘PPDL Act’). It is the further submission of the learned counsel that even the first information report was registered against unknown persons and there is no proof 4 https://www.mhc.tn.gov.in/judis ____________ W.P. No.24426/2014 that the members of the petitioner’s party involved themselves in the said crime. In the absence of any conviction against any person belonging to the party, fixing liability for compensation on the petitioner u/s 9 of the Act giving cause of action u/s 10 of the Act. It is the further submission of the learned counsel that when no person is found guilty and conviction awarded, the claim raised u/s 10 of the Act directing the petitioner to pay the amount is per se unsustainable and clearly reveals non application of mind on the part of the 1st respondent.
6. It is the further submission of the learned counsel that the provisions of the Act, read as a whole would clearly show that the right to claim compensation and the liability against any person or party or a group u/s 9 and 10 of the Act would arise only if an offence punishable under the Act has been committed, which would arise only if the FIR ends in conviction. Further, the said loss could be only with regard to the loss or damage to the property involved in the crime and only in relation to the value of such property and the damage caused to the property. It is the contention of the learned counsel that it only an alleged damage claimed by the 2nd respondent, which cannot be brought within the ambit of the Act and the claim of the 2nd respondent is wholly unsustainable. 5 https://www.mhc.tn.gov.in/judis ____________ W.P. No.24426/2014 Further, the loss could be recovered only from the persons responsible for it and insofar as the persons of the crime having not been identified and no conviction has been passed in the trial, directing payment of the sum, alleged to have been the value of the damage caused is wholly imaginary and cannot be sustained.
7. It is the further contention of the learned counsel that unless the persons, who committed the offences are identified and the trial against them culminates in conviction, no compensation can be claimed against the political party u/s 9 as the person who committed the offence, unless convicted, and their affiliation to the political party is established, the political party cannot be fastened with the liability to pay the compensation.
8. Per contra, learned Addl. Advocate General appearing for the respondents submitted that after affording due opportunity and after providing all the necessary materials as sought for by the petitioner, the enquiry was sought to be conducted by the 1st respondent. It is the further submission of the learned Addl. Advocate General that based on the application of the 2nd respondent, the 1st respondent, by virtue of the powers vested under the PPDL 6 https://www.mhc.tn.gov.in/judis ____________ W.P. No.24426/2014 Act, had issued the show cause notice on the petitioner and had contemplated conduct of enquiry.
9. It is the further submission of the learned Addl. Advocate General that the agitation was conducted by the petitioner party without obtaining permission from the law enforcing agency leading to the damage caused to the public property and in such a backdrop, it is well within the powers of the 1st respondent to initiate necessary action against the petitioner, who had indulged in the agitation without obtaining the requisite permission.
10. It is the further submission of the learned Addl. Advocate General that the objective of PPDL Act was to prevent wide spread damage to property and also for payment of compensation for the damage or loss caused to properties by the offenders. Awarding punishments for the criminal offence would not have any impact on the enquiry conducted by the 1 st respondent, as the said enquiry is not in any way connected with the criminal case to be adjudicated by the competent criminal court. The 1st respondent is well within its power to order 7 https://www.mhc.tn.gov.in/judis ____________ W.P. No.24426/2014 enquiry and adjudicate on the compensation to be paid and the criminal case will not have any bearing on the enquiry conducted by the 1st respondent.
11. It is the further submission of the learned Addl. Advocate General that the criminal prosecution is in no way connected with the claim for compensation against the political party and that the outcome of the trial would have no effect on the claim for compensation for the damages caused due to the agitation of the political party, which is purely civil in nature.
12. Learned Addl. Advocate General placed reliance on the decision of this Court in Pattali Makkal Katchi – Vs – Addl. Chief Secretary/Commissioner of Revenue Administration & Anr. (W.P. No.4072/2014 – Dated 23.09.2021), in which the similar acts committed for which enquiry was sought to be initiated was questioned in which learned single Judge of this Court dismissed the writ petition and allowed the enquiry to be proceeded with. However, he fairly conceded that in the writ appeal filed W.A. No.292/2022 – Dated 25.03.2022, the Division Bench of this Court had directed that the if the amount is determined by the authority towards compensation payable, the same will be subject to the 8 https://www.mhc.tn.gov.in/judis ____________ W.P. No.24426/2014 outcome of the appeals. Therefore, it is submitted that the order of the single Judge not having been disturbed in any manner, the said decision would be equally applicable to the case on hand.
13. This Court gave its anxious consideration to the submissions advanced by the learned counsel on either side and perused the materials available on record.
14. At the very outset, this Court is not inclined to accept the contention of the learned counsel for the petitioner that unless the trial culminates in a conviction, no proceedings claiming compensation can be initiated u/s 9 of the PPDL Act against the political party. An act perpetrated by an individual, who is a member of the political party in an agitation called for by the political party can be proceeded separately for penal consequences u/s 4 to 8 of the PPDL Act and it would in no way have a bearing on the claim for compensation against the political party u/s 9 of the Act, as the act of the individual is not the issue, but the act of the political party, which has resulted in the said act having been committed by the individual, as a member of the political party, is the issue, 9 https://www.mhc.tn.gov.in/judis ____________ W.P. No.24426/2014 which is to be decided u/s 9. Therefore, the establishment of affiliation of the accused to a particular political party would be suffice to proceed against the political party claiming compensation.
15. It is not in dispute that agitation and demonstrations were conducted by the petitioner party on 1.5.2013. In the said agitation, damage was caused to public property of which the culvert at Km.11/8 of Mailam-Pondy Road in Karasanur Village was damaged. In this regard, the 2nd respondent has filed an application before the 1st respondent u/3 (2) of the Tamil Nadu Property (Prevention of Damage and Loss) Rules, 1994 claiming compensation to the tune of Rs.18 Lakhs. On the said application, the 1st respondent had issued notice calling upon the petitioner for enquiry on 24.7.2013 followed up with a consequential notice for the appearance of the petitioner on 10.9.2014 failing which orders were to be passed based on the records available with the authority.
16. The whole contention of the petitioner is that the accused not having been identified by the law enforcing agency and the FIR also not speaking about 10 https://www.mhc.tn.gov.in/judis ____________ W.P. No.24426/2014 the identity of the accused, fastening the liability on two individuals, who were, in the opinion of the 2nd respondent, responsible for the damages and seeking to recover the said damages from the two individuals under the guise of enquiry u/r 8 (2) is wholly impermissible. Without the criminal case coming to an end in which the identified accused is tried and convicted, any action initiated against any person would be wholly impermissible and would not be within the provisions of the PPDL Act.
17. The enquiry has emanated on the basis of the application filed by the 2nd respondent before the 1st respondent. A careful perusal of the application filed u/r 3 (2) reveals that the Divisional Engineer, while filing the application, has stated about the details of the incident and the damage caused to the public property and the compensation that is claimed, has given his opinion that two persons named in the said application are the persons responsible for the damages caused.
18. As aforesaid, there is no dispute that the agitation called by the petitioner resulted in untoward incidents, including causing of damage to the 11 https://www.mhc.tn.gov.in/judis ____________ W.P. No.24426/2014 culvert for which compensation is claimed. It is not disputed by the respondents that against the said demonstration, which is alleged to have been conducted without obtaining permission from the appropriate authorities, FIR has been registered in Crime No.110/2013 on the file of the Inspector of Police, Vanur Police Station, Villupuram District for the offences u/s 427, 307 IPC r/w Section 4 of Explosives Act and Section 3 of PPDL Act. However, it is to be pointed out that nowhere had the respondents claimed that the accused, who had perpetrated the crime had been mentioned in the FIR. In fact, it is not even the case of the respondents that the persons, who caused the damage have been identified and included as accused in the crime. The respondents are not able to speak about the stage of the investigation, inspite of a lapse of about 9 years from the date of occurrence.
19. In the aforesaid backdrop, the application of the 2nd respondent including his opinion as to the person, who had caused the damage requires to be looked into. The whole of the application does not reveal as to the basis on which the identity of the persons, who had caused the damage, had been arrived at. May be the persons are the founders of the respective party, but that would 12 https://www.mhc.tn.gov.in/judis ____________ W.P. No.24426/2014 not necessitate inclusion of their names as the persons, who had caused the damage to the party.
20. In the aforesaid context, it becomes imperative for this Court to ascertain the manner in which the liability can be fastened for the damages caused under the PPDL Act.
21. Section 2 (3) defines “political party”, and the same is quoted hereunder :-
“2. Definition. – * * * * * * * (3) “political party” means a political party recognized by the Election Commission under the Election Symbols (Reservation and Allotment) Order, 1968.”
22. Section 2 (4) defines “property” and 3 prescribes the punishment for committing mischief in respect of property.
23. Section 4 pertains to mischief causing damage to property by fire or explosive substance and in the present case the allegation being that the culvert 13 https://www.mhc.tn.gov.in/judis ____________ W.P. No.24426/2014 had been blown by the use of the explosives, which is the issue involved in this case and the aforesaid provision is extracted hereunder for better appreciation ;:-
“4. Mischief causing damage to property by fire or explosive substance.- Whoever commits mischief by fire or any explosive substance intending to cause or knowing it to be likely that he will thereby cause damage to any property to the amount of one hundred rupees or upwards, shall be punished with imprisonment for a term which shall not be less than two years but which may extend to ten years and with fine :
Provided that the Court may for any adequate and special reason to be mentioned in the judgment, impose a sentence of imprisonment for a term of, less than two years.”
24. Section 9 of the Act pertains to liability to pay compensation in certain cases, more particularly, insofar as damage caused during procession, assembly, meeting, agitation, demonstration, etc., and the present case falling squarely within the said provision, the same is quoted hereunder :-
“9. Liability to pay compensation in certain cases.- Notwithstanding anything contained in this Act, where an offence punishable under this Act has been committed during any procession, assembly, meeting, agitation, demonstration or any other activity organised by a political party or communal, language, or ethnic group, it shall be presumed, that the offence, 14 https://www.mhc.tn.gov.in/judis ____________ W.P. No.24426/2014 has also been committed by such political party or communal, language or ethnic group and such political party or communal, language or ethnic group shall be liable to pay compensation for damage or loss caused to any property in accordance with the provisions of this Act and the rules made thereunder.”
25. A careful perusal of Section 9 reveals that where the damage has been caused during procession, assembly, meeting, agitation, demonstration or any other activity organised by a political party or communal, language, or ethnic group, the liability will be on the political party or communal, language or ethnic group to pay the compensation for the said damage.
26. In the case on hand, as aforesaid, the damage is alleged to have been caused during the agitation held by the partymen belonging to the petitioner party. In fact, not only the notice, which clearly states that compensation has been claimed for causing damage to one culvert of the Highways Department during the agitation held by the partymen of the petitioner party by blasting gel type detonator, but even the application of the 2nd respondent is clear that the 15 https://www.mhc.tn.gov.in/judis ____________ W.P. No.24426/2014 cadre of the petitioner political party has caused the damage to the culvert. Therefore, Section 9 of the PPDL Act would squarely stand attracted.
27. As aforesaid, Section 9 imposes liability only on the political party in respect of damage, which has been caused during agitation, demonstration held by the partymen and compensation can be claimed by an applicant for the damages caused only from the political party and claim against the individuals cannot be maintained. Therefore, for the mischief caused u/s 4 of the PPDL Act in respect of an act u/s 9 of PPDL Act, damages should be claimed only from the political party and individual cannot be fastened with any liability.
28. However, in the case on hand, a perusal of the application of the 2 nd respondent before the 1st respondent claiming compensation reveals that compensation has been sought for from two individuals, who are said to be the leaders of the respective political party. When the act has been perpetrated by the cadres of a political party, only the political party will be liable and the leaders of the political party cannot be fastened with any liability. Such is not the intent of Section 9 of the PPDL Act. Individual, even be it the leader of the political 16 https://www.mhc.tn.gov.in/judis ____________ W.P. No.24426/2014 party, cannot be fastened with any liability to pay the compensation for the damages, even if the said leader had partaken in the agitation conducted on behalf of the political party. The leader, in his individual capacity cannot be made liable for payment of compensation for any damage caused during the agitation conducted by the political party and compensation can be claimed only from the political party. Any other construction given to the aforesaid provision would defeat the very purpose of the said Section, more so, when Section 2 (3) defines “political party”, as otherwise, there is no necessity for the said definition to have been incorporated in the PPDL Act.
29. The Legislature, in its wisdom, had thought it fit to define political party u/s 2 (3) and equally fasten the political party with the liability for payment of compensation for any act of the political party as a consequence of agitation, assembly, demonstration, etc., u/s 9 of the PPDL Act. Any mischief caused on behalf of the political party by any cadre of the political party with respect to any act coming within the ambit of Section 4 would be referable to Section 9 and the political party can be proceeded against by the appropriate authority claiming compensation for the damages caused. Such being the case, fastening liability on 17 https://www.mhc.tn.gov.in/judis ____________ W.P. No.24426/2014 any other person other than the political party in respect of an act u/s 9 would be wholly against the spirit of Section 9 of the PPDL Act.
30. The reliance placed by the learned Addl. Advocate General on the decision in W.P. No.4072/2014, in the considered opinion of this Court, is wholly unacceptable and misconceived, as Section 9 has not been taken into consideration in the said decision, even though Section 9 stands squarely attracted in the said case as well. In fact, the circumstances and the agitation in the present case is similar to the case in W.P. No.4702/14 and that being the case, necessarily Section 9 of the PPDL Act would stand squarely attracted. However, without discussing Section 9, a finding has been rendered in the said decision, which cannot be taken as a precedent to decide the present case. Further, the Division Bench, in the appeal filed against the said decision, has granted conditional order not to pass any orders in the enquiry. Therefore, the said decision would not in any way help the respondents.
31. Further, it is borne out by record and not disputed by the petitioner that FIR has been registered in respect of the incident in which the damage is 18 https://www.mhc.tn.gov.in/judis ____________ W.P. No.24426/2014 alleged to have caused and that investigation has also been taken up by the jurisdictional police authorities. However, the outcome of the investigation has not been spelt out either by the petitioner or by the respondent. Therefore, this Court has to only infer that investigation is still not completed. However, it is to be pointed out that a crime has been registered against unknown persons and investigation is underway. Therefore, the only issue that requires determination is that the individual/(s), who detonated the explosive have to be identified and their affiliation to the political party has to be established. Without identification of the individual/(s) and establishing their affiliation, the notice issued to the founder of the political party/ies with regard to payment of compensation for the damage caused cannot be sustained. However, merely because the accused have not been identified would not outrightly absolve the political party/ies, as it is the political party, which had called for the agitation/demonstration in which the damage has been caused. That being the case, on the identification of the accused and establishing their affiliation to the political party/ies, the respondents would be well within their power to issue notice on the said political party/ies as also its office bearers claiming compensation. 19 https://www.mhc.tn.gov.in/judis ____________ W.P. No.24426/2014
32. Further, tt is to be pointed out that criminal prosecution is in no way connected with the claim for compensation against a political party u/s 9. While the criminal prosecution would be against the individual/(s), who committed the offence, attracting penal consequences, the claim for compensation is a purely civil consequence against the political party/ies, which had induced the accused to commit the offence for which they cannot be allowed to walk away freely. Therefore, irrespective of the outcome of the criminal prosecution, mere identification of the accused and their affiliation to the political party/ies would be suffice to initiate proceedings for claiming compensation u/s 9 of the PPDL Act.
33. In the present case, enquiry has been initiated by the 1st respondent on the complaint of the 2nd respondent with regard to the damages caused in the agitation/demonstration held by the petitioner’s political party. As aforesaid, the notice as also the application for compensation clearly show that the act has been done by the cadres of the political party, but the accused are yet to be identified and their affiliation to the aforesaid political party is yet to be established and such being the case, the fastening of liability on the individuals, 20 https://www.mhc.tn.gov.in/judis ____________ W.P. No.24426/2014 being the founder of the political party/ies, by the 2nd respondent, that too without any material, and the issuance of notice on the said application to the individuals, as founder of the political party, is grossly illegal and unsustainable and exhibits clear non-application of mind on the part of the 1st respondent. Therefore, this Court has no hesitation to hold that the impugned notice of enquiry dated 8.7.2013 and the subsequent proceedings dated 27.8.2014 are arbitrary, irrational, impermissible and vitiated and, therefore, the same deserve to be set aside.
34. Accordingly, this writ petition is allowed and the impugned proceedings in SR. No.60/HD/VPM/2013 dated 08.07.2013 and the consequential notice in SR No.2 to 143/HD/2013 dated 27.08.2014 of the 1st respondent herein are quashed. However, the setting aside of the impugned notices would not be a bar for the respondents to initiate appropriate proceedings for claiming compensation against the particular political party/ies/office bearers of the political party/ies as and when investigation is concluded and the accused as also their affiliation to the particular political party/ies are established. 21 https://www.mhc.tn.gov.in/judis ____________ W.P. No.24426/2014
35. In the result, the writ petition is allowed with the aforesaid observations and directions. Consequently, connected miscellaneous petition is closed. There shall be no order as to costs.
12.09.2022
Index : Yes / No
Internet : Yes / No
GLN
To
1. The Addl. Chief Secretary
Commissioner of Revenue Administration
Revenue Department and Mitigation Dept.
Ezhilagam, Chepauk
Chennai 600 005.
2. The Divisional Engineer
Highways, Construction &
Maintenance Division
Villupuram, Villupuram Dist.
22
https://www.mhc.tn.gov.in/judis
____________
W.P. No.24426/2014
M.DHANDAPANI, J.
GLN
PRE-DELIVERY ORDER IN
W.P. NO.24426 OF 2014
Pronounced on
12.09.2022
23
https://www.mhc.tn.gov.in/judis