Madras High Court
Sivakumar Spinning Mills Private Ltd vs R.K.Kulshrestha on 21 October, 2021
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Cont.P.No.146 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.10.2021
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
Cont.P.No.146 of 2019 and
Sub Appln.No.46 of 2019 and
WMP.No.17959 of 2021
Sivakumar Spinning Mills Private Ltd.,
Rep. by its Managing Director,
Mr.K.V.R.Kousigan,
Madurai Road, Sankar Nagar,
Tirunelveli 627 357 ..Petitioner
Vs.
1.R.K.Kulshrestha,
The General Manager / The Chief Planning and
Designing Engineer,
Administrative Office,
Southern Railways,
Chennai
2.Neenuittyerah,
The Divisional Railway Manager/Works,
Divisional Office,
Works Branch, Madurai
3.Arul Raj,
The Section Engineer / P.Way,
Tirunelveli Railway Station,
Tirunelveli ..Respondents
PRAYER:
Contempt Petition filed under Section 11 of the Contempt of
Courts Act, 1971 to punish the respondents for having committed
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Cont.P.No.146 of 2019
wilful disobedience of the order of this Court made in WP.No.9348 of
2001 dated 06.01.2010.
For Petitioner : Mr.S.Silambanan,
Senior Counsel
for M/s.Kaavya Silambanan
For Respondents : Mr.V.Radhakrishnan,
Senior Counsel
for Mr.P.T.Ramkumar
ORDER
This contempt petition has been filed for having committed wilful disobedience of the order passed by this Court in WP.No.9348 of 2001 dated 06.01.2010, thereby while allowing the writ petition observed that as Railways have got a public duty to man all the level crossings, necessary steps may be taken to provide gates and gatekeeper at the level crossing No.15, as per the decision of the Hon'ble Supreme Court, as expeditiously as possible.
2. Mr.S.Silambanan, Senior Counsel appearing for the petitioner submitted that the petitioner mill has been running since the year 1953. The Southern Railway had on request from the erstwhile mill owner provided unmanned level crossing in LC.No.135 (KM 24/700-800) in that portion of the land which was gifted to Southern Railways by the predecessors of the 2/16 https://www.mhc.tn.gov.in/judis Cont.P.No.146 of 2019 petitioner. The only access to the petitioner mill is from the National Highway. The railway track runs through the lands of the petitioner parallel to the National Highway. The lands on both sides of the track belong to the petitioner. An agreement was entered into between Southern Railways and erstwhile owner of the petitioner mill to allow free access to vehicular traffic, public and other connected works. The unmanned level crossing in front of the mill is in existence for more than fifty years. Therefore, there is no other access to the petitioner mill except to cross over the railway lines. In order to ensure safety of the workmen and vehicles which cross the railway line at frequent intervals, the Southern Railway permitted the erstwhile mill owner to put up gates far beyond the railway line at the entrance of the level crossing in survey No.558B which belong to the petitioner mill to operate the gates by their staff. While being so, in the year 2000, the second respondent issued notice stating that the gates provided on both sides to the unmanned level crossing in Tirunelveli-Thalaiyuthu Section was irregular and also informed that if manning is required, a fresh agreement has to be executed and the petitioner was directed to remove the gates and withdraw the manning by the petitioner staff, failing which the level crossing will be closed without intimation.
3/16 https://www.mhc.tn.gov.in/judis Cont.P.No.146 of 2019 2.1 He further submitted that the approximate capital cost required for manning the unmanned level crossing would be at Rs.8.5 lakhs and in addition to that, annual recurring maintenance charges would be Rs.3.5 lakhs per annum or lump sum payment of Rs.45 lakhs. Since the said direction was not complied with and as such the third respondent threatened the petitioner that the level crossing would be converted into pedestrian crossing if the petitioner does not agree for manning the level crossing as informed earlier. Therefore, the petitioner approached this Court by way of writ petition in WP.No.9348 of 2001 and this Court allowed the writ petition by order dated 06.01.2010 and observed as stated supra. As directed by this Court, the respondents failed to provide gates and gate keeper at the level crossing No.15 as per the decision of the Hon'ble Supreme Court of India. He further submitted that because of non providing of gates and gatekeeper, the petitioner mill could not function profitably. It drastically affected the petitioner's business. Because of this, the entire assets including land, factory, buildings, etc valued more than Rs.15 crores have become redundant and the petitioner's bankers, financial institutions and other statutory bodies including Electricity Board are also pressurising the 4/16 https://www.mhc.tn.gov.in/judis Cont.P.No.146 of 2019 petitioner to take necessary steps to remove the gates for their free access to the factory. Though the petitioner issued so many representations to the respondents to remove the gates closing the unmanned level crossing No.15 in front of the petitioner's mill, they did not take any steps to comply with the order passed by this Court. Therefore, they committed contempt of Court and prayed to punish the respondents in accordance with law.
3. The second respondent filed status report and Mr.V.Radhakrishnan, Senior Counsel appearing for the respondents submitted that the physical features of the location was examined to comply with the order passed by this Court to assess the visibility of train for the road users from both sides of the tracks, to survey traffic density and regular plying of vehicles through the level crossing and conduct a census regarding Train Vehicle Unit and revised criteria framed by the Railway Board for manning of unmanned level crossing. On careful examination of the location by the field officers, revealed that the visibility of trains for road users was found to be 350 meters which is considered as critical and inadequate visibility for road users at level crossing. As per the instructions issued by the Railway Board visibility distance has been restricted to 600 5/16 https://www.mhc.tn.gov.in/judis Cont.P.No.146 of 2019 mtrs for road users. There is also a curve in this location which affects required visibility for the road users in the event of providing manned gate. Traffic Vehicle Unit has to be above 3000 under category I and above 2500 under category II. In the census taken by the field officers in the year 2012 at LC-15 location, the Traffic Vehicle Unit was only 238 which far below than the guidelines issued by the Railway Board for conversion of unmanned into manned level crossing. While LC-15 remained as unmanned level crossing earlier, it was utilised only by the petitioner and not by the public. There is a manned level crossing at LC-16 which is only 600 meters away from the LC-15 location. While LC-15 was proposed for closure, it was ascertained by the field officials that no buses were plying though LC- 15 and people from nearby villages. They are using LC-15 to reach their respective villages. Unmanned LC-15 was connecting only NH7 road to the petitioner mill. The passage through LC-15 was temporary closed to avoid accident and loss of human lives while crossing the track till implementation of direction issued by this Court. After the order passed by this Court on 06.01.2020, considering the safety of public and to prevent accidents, writ petition was filed before the Hon'ble Supreme Court of India in Writ(Civil)No761 of 2014 seeking to take steps to completely eliminate 6/16 https://www.mhc.tn.gov.in/judis Cont.P.No.146 of 2019 all unmanned level crossings to ensure proper safety of commuters who cross those level crossings. Thereafter, Ministry of Railways issued various proceedings for elimination of level crossings. The comprehensive policy decision was taken by the Railway Board to eliminate all unmanned level crossing and conversion into manned level crossing depending upon the Traffic Vehicle Unit or construction of bridge / subway depending upon the site location. As far as the present location at LC-51, it does not fulfil the requirement of Traffic Vehicle Unit and site is not feasible for construction of subway due to non availability of the road length on both sides.
3.1 The learned Senior Counsel appearing for the respondents also produced photographs to show that there is no adjacent place available for construction of subway or level crossing. The Railway Board took a policy decision for outright closure of all unmanned level crossings across the country having Traffic Vehicle Unit less than 500. By proceedings dated 18.05.2018 and 22.11.2015, it was also decided that no new manned level crossing shall be permitted in new line and gauge conversion projects. Formation of second line between Vanchi Maniyachi to Nagercoil via Tirunelveli was sanctioned. LC-15 is located in this route and pursuant to 7/16 https://www.mhc.tn.gov.in/judis Cont.P.No.146 of 2019 the Railway Board guidelines, no new manned level crossing is permitted in new line project. The second railway line laying work was commenced in the month of August 2017 and completed in the month of February 2021. The operation of the trains services have already commenced in the second line. Due to laying of second line in the space which was available at LC-15 in front of the petitioner mill has reduced considerably and at present there is no feasibility of providing manned level crossing and for construction of subway. The vacant space now available from the end of track and upto the railway boundary is 4.57 mtrs. Similarly, on the other side, vacant space available from the end of the track and upto the railway bounday is 1.18 mtrs. Therefore, it is technically not feasible to provide a manned level crossing at LC-15 in front of the petitioner mill. Therefore, the respondents filed petition for modification in WMP.No.17959 of 2021 on the ground that it is not feasible to provide manned level crossing at LC-15 i.e. in front of the petitioner mill. This Court passed order on 06.01.2010 whereas the contempt petition has been filed only on 10.09.2018. Therefore, the present contempt petition has been filed after period of eight years from the date of order passed by this Court. In this regard, the learned Senior Counsel appearing for the respondents relied upon the judgment of this Court in the 8/16 https://www.mhc.tn.gov.in/judis Cont.P.No.146 of 2019 case of A.Pushpa Vs. Karunakaran, District Elementary Educational Officer, Thiruvannamalai in Cont.P.No.2551 of 2018 dated 07.02.2019.
4. Heard, Mr.S.Silambanan, Senior Counsel appearing for the petitioner and Mr.V.Radhakrishnan, Senior Counsel appearing for the respondents.
5. The point for consideration is that whether the contempt petition can be entertained in view of the limitation prescribed under the provisions of the Contempt of Courts Act, 1971 under Section 20. Section 20 of the Contempt of Courts Act, 1971 reads as follows:
20.Limitation for actions for contempt—No court shall initiate any proceedings of contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed.
Therefore, no court shall initiate any proceedings of contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed. In this regard, the learned Senior Counsel appearing for the respondents relied 9/16 https://www.mhc.tn.gov.in/judis Cont.P.No.146 of 2019 upon the judgment of this Court in Cont.P.No.2539 of 2014 dated 05.12.2017 wherein it is held as follows:
6. Thus, it is clear that a limitation is prescribed for filing a contempt application against an order passed by the Court and one year period is prescribed from the date of cause of action arose. In the case on hand, the cause of action arose in August 2009 and the contempt application was filed on 15.07.2014. Thus, there is a delay of about 5 years even in filing the present contempt application.
7. Next question to be considered in this regard is that, whether this Court can invoke Article 215 of Constitution of India for entertaining the contempt application beyond the period of one year.
8. Article 215 of the Constitution of India provides that High Courts to be Courts of record "Every High Court shall be a Court of record and shall have all the powers of such a Court including the power to punish for contempt of itself.?
9. Thus, the Constitution provides powers to the High Court to punish for contempt itself. No doubt, such 10/16 https://www.mhc.tn.gov.in/judis Cont.P.No.146 of 2019 a power is granted for the effective implementations of the orders of the Hon'ble High Court. However, this Court has to consider, whether such a power can be exercised beyond the period of limitation prescribed under Section 20 of the Contempt of Courts Act 1971, and under what circumstances.
10. The general principle of law in this regard is that whenever there is a Special Act enacted in respect of limitation, the powers conferred under the Constitution as well as the Special Act to be read cogently and harmoniously. Harmonious reading of these provisions, no doubt, the High Courts are empowered to exercise the power of contempt as the High Court is the Court of record. However, such power can be exercised only with reference to Section 20 of the Contempt of Courts Act. This will not mean that, the High Courts cannot exercise the powers of contempt beyond the limitation period of one year. The powers of contempt beyond the limitation period can be exercised only on exceptional circumstances, and sparingly. The powers conferred under the Constitution in normal circumstances are to be exercised only with reference to the Special Act viz., the Contempt of Courts Act. Only in extraordinary circumstances; the High Courts can go beyond the period 11/16 https://www.mhc.tn.gov.in/judis Cont.P.No.146 of 2019 of one year and exercise the powers of Contempt under Article 215 of the Constitution of India. The practice prevailing now is that, irrespective of the period limitation prescribed under Section 20 of the Contempt of Courts Act, the contempt applications are filed in a routine manner by stating that no limitation is applicable in respect of the contempt applications filed before the High Courts. Such a concept is not in accordance with the legal principles settled in this regard.
This Court after relying upon catena of judgments of the Hon'ble Supreme Court of India held that Article 215 of the Constitution of India empowers every High Court to punish contempt of Court subordinate to it, but Contempt of Courts Act lays down how that power is to be exercised. Article 215 and provisions of the Contempt of Courts Act have to be read together. The Hon'ble Apex Court has emphasized that Section 20 applies to civil and criminal contempts and would also apply to the contempt committed on the face of High Court or the Supreme Court or even Subordinate Courts. Where there is a limitation for initiation of proceedings of contempt under Section 20 of the Act, the Rules of Code provide that no notice shall be issued if more than one year has lapsed from the alleged act 12/16 https://www.mhc.tn.gov.in/judis Cont.P.No.146 of 2019 of contempt. The proper construction to be placed on Section 20 must be that the action initiated either by filing of an application or by the Court issuing notice suo moto, within a period of one year from the date on which the contempt is alleged to have been committed. No doubt, the High Court is not powerless even when the period of one year is expired from the date of alleged violation of Court's order, the Courts can exercise its inherent power under Article 215 of the Constitution of India. However, such powers ought to be exercised only on exceptional circumstances, more so to mitigate the gross in justice if any occurred and the inherent powers ought to be exercised sparingly and not in a routine manner. The High Courts cannot make the limitation period prescribed under Section 20 of the Contempt Courts Act illusory. The limitation prescribed under Section 20 is to be scrupulously followed in all cases and the provisions as to be read harmoniously along with Article 215 of the Constitution of India. One step further this Court has to emphasize that the Contempt of Courts Act is a Special Act and the same will prevail in respect of filing of the contempt application under the very same Act. The general powers conferred under the Constitution has to be read along with the provisions of the contempt of Courts Act. The Act is to be construed as the procedure for initiating 13/16 https://www.mhc.tn.gov.in/judis Cont.P.No.146 of 2019 contempt contemplated, by virtue of the powers conferred under the constitution.
This Court further held that action for contempt is divisible into two categories, namely, that initiated suo motu by the Court and that instituted otherwise than on the Court's own motion. The mode of initiation in each case would necessarily be different. While in the case of suo motu proceedings, it is the court itself which must initiate by issuing a notice, in the other cases initiation can only be by a partly filing an application. Therefore, the proper construction to be placed on Section 20 must be that action must be initiated, either by filing of an application or by the court issuing notice suo motu, within a period of one year form the date on which the contempt is alleged to have been committed.
6. Thus, High Courts cannot invoke the powers under Article 215 of the Constitution of India, in all the cases by entertaining the contempt application beyond the period of one year, so as to dilute or eradicate the law prescribed under Section 20 of the Contempt of Courts Act, 1971. All contempt applications ought to be filed within the period of limitation prescribed under Section 20 of the Contempt of Courts Act, 1971. 14/16 https://www.mhc.tn.gov.in/judis Cont.P.No.146 of 2019
7. Admittedly, in the case on hand, this contempt petition is filed after a lapse of more than eight years and as such it is barred by limitation and it cannot be entertained under the provisions of the Contempt of Courts Act, 1971. Accordingly, this contempt petition is devoid of merits and the same is dismissed.
8. In view of the dismissal of the above contempt petition, the miscellaneous petition in WMP.No.17959 of 2021 in WP.No.9348 of 2001 has become infructuous and the same is closed. The connected sub application is also closed.
21.10.2021
Speaking/Non-speaking order
Index : Yes/No
Internet : Yes/No
lok
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Cont.P.No.146 of 2019
G.K.ILANTHIRAIYAN,J.
lok
To
1.R.K.Kulshrestha,
The General Manager / The Chief Planning and
Designing Engineer,
Administrative Office,
Southern Railways,
Chennai
2.Neenuittyerah,
The Divisional Railway Manager/Works,
Divisional Office,
Works Branch, Madurai
3.Arul Raj,
The Section Engineer / P.Way,
Tirunelveli Railway Station,
Tirunelveli
Cont.P.No.146 of 2019 and
Sub Appln.No.46 of 2019 and
WMP.No.17959 of 2021
21.10.2021
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