Madras High Court
C.Manjula vs Mr.Anandkumar on 12 April, 2006
Author: C.Nagappan
Bench: C.Nagappan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12/04/2006
CORAM
THE HON'BLE MR.JUSTICE C.NAGAPPAN
Contempt Petition No.1170 of 2005
and
Sub-Application No.454 of 2005
C.Manjula
No.17A, Kamaraj Colony
II Cross,
Hosur Town and Taluk,
Krishnagiri District. .. Petitioner
-Vs-
1.Mr.Anandkumar
Sub Collector,
Hosur Taluk,
Krishnagiri.
2.Mr.Ponnuswami,
Tahsildar,
Hosur Taluk,
Krishnagiri. .. Respondents
Petition filed under Sections 10 and 12 of the Contempt of Courts Act
praying to issue notice of contempt and punish the respondents herein for
wilful disobedience of the order dated 16.12.2005 in WPMP.No.4 3094 of 2005 in
W.P.No.40183 of 2005.
!For petitioner : Mr.AR.L.Sundaresan
Senior Counsel
for Ms.A.L.Ganthimathi.
^For respondents : Mr.A.L.Somayaji
Addl. Advocate General
assisted by
Mr.R.Vijayakumar,
Govt. Advocate.
:ORDER
The petitioner prays for punishing the respondents for wilful disobedience of the order of interim injunction, dated 16.12.2005, granted in WPMP.No.43094 of 2005 in W.P.No.40183 of 2005.
2. The case of the petitioner is that she is the absolute owner of the property bearing Door No.37/17-A, Plot No.91, T.S.No.11/2A2, Kamaraj Colony, Second Street, Hosur, Krishnagiri and she derives title to the same through registered sale deed, dated 3.11.2003, by which she purchased the property from her vendor, who had purchased the same from Hosur Co-operative House Building Society Limited under duly registered sale deeds dated 12.6.1973 and 24.9.1979 and she had put up construction in the property, after demolishing the building which stood thereon, as per the duly approved Plan of the Hosur Urban Development Authority and the Commissioner, Hosur Municipality and the property was also assessed to property tax by the Hosur Municipality and there was no encroachment whatsoever made either by the petitioner or her vendors.
3. According to the petitioner, there was a threat of demolition even without any notice and without any cause and hence she filed W.P. No.40183 of 2005 praying for a writ of mandamus to forbear the District Collector, Krishnagiri and the respondents herein from in any manner interfering with her possession and enjoyment or demolishing the construction in Door No.37/17A, Plot No.91, T.S.No.11/2A2, Kamaraj Colony 2nd Cross, Hosur Taluk, Krishnagiri and also prayed for an interim injunction to restrain the respondents herein and the District Collector from in any manner interfering with her possession and enjoyment or demolishing the construction in her property referred to above and this Court admitted the writ petition and granted interim injunction in WPMP.No.43094 of 2005 on 16.12.2005 in the forenoon and the said order was passed after hearing the learned counsel for the petitioner and the learned Government Advocate and the application for certified copy of the order was filed on the same day, but the copy was not made ready and the counsel for the petitioner communicated the substance of the interim order to the respondents as well as the District Collector, Krishnagiri by telegram on 16.12.2005 at 19.14 hours from the Telegraph Office, Adyar and it was duly served in the office of the respondents on 17.12.2005 itself.
4. The petitioner has further stated that she also got a letter No.677/05 dated 17.12.2005 from her counsel, addressed to the respondents herein and the District Collector, Krishnagiri with regard to the factum of filing of the writ petition, injunction petition and the order dated 16.12.2005 passed therein, the telegraphic communication already sent and also informing that the order copy was not yet ready and the same would be communicated as soon as it was made ready. According to the petitioner, the respondents herein descended on her property on 19.12.2005 at about 9 am with a posse of about 40 policemen, JCB and about 20 workmen and she went to the first respondent and informed that she had already filed a writ petition and interim injunction was granted by this Court on 16.12.2005 and the text of the order was also communicated to the respondents by telegram by her advocate on 16.12.2005 and she also gave the original letter dated 17.12.2005, written by her advocate addressed to t he respondents herein and pleaded the respondents not to demolish the building.
5. It is further stated by the petitioner that the first respondent read the letter dated 17.12.2005 and retained it with him and left the place stating that he has not been communicated with the order and he could not act upon the communication from the advocate and the second respondent herein was with the first respondent all throughout and was aware of the entire discussion between the petitioner and the first respondent and the first respondent left after instructing the second respondent to go ahead with the demolition.
6. The petitioner has further stated that both the respondents came back at 2 pm on the same day and by the time at 1.45 pm, the petitioner received the copy of the order, dated 16.12.2005 in her injunction petition by fax from her advocate at Chennai and she showed the same to the respondents 1 and 2 at 2 pm and the first respondent with utmost disrespect and disregard, tore the copy of the order, which was given by the petitioner and directed the second respondent to commence demolition and go ahead with it without any interruption. According to the petitioner, at 3 pm, the men of the respondents, with JCB which was brought by them, demolished about an extent of 18 ft. width of the building and not stopping with that, the next day on 20.12.20 05, a further extent of about 5 ft. was also demolished and no notice was given under any Act, Rule or Regulation for demolition and no opportunity was given to the petitioner.
7. It is further averred that the respondents are fully aware of the injunction granted by this Court and in spite of full knowledge about the order, the respondents have demolished the building of the petitioner as stated above on 19.12.2005 and 20.12.2005 and have shown scant respect to the order of this Court and the order has been violated with impunity by the respondents. According to the petitioner, the extent of damage caused to her by demolishing the building would be not less than Rs.30 lakhs, whereas the petitioner had put up the construction at a total cost of Rs.60 lakhs by availing loan to the tune of Rs.20 lakhs and the remaining building as of now cannot be put to any utility as it stands now and requires substantial repair and expenditure to make it habitable and the respondents have acted in the most inhuman and ruthless manner without any concern for the order of this Court and hence they have to be punished for their grave, wilful disobedience and contempt of the order of interim injunction.
8. The respondents 1 and 2 have filed independent counter affidavits, but the averments found therein are similar and they are as follows. The respondents have got highest regard and respect to the order passed by this Court and at no point of time, they have intended to violate the order and if the Court comes to the conclusion that any of the act committed by them is construed as contempt of court, they hereby tender their apology and pray for purging them from the contempt proceedings.
9. The respondents have stated that it is true that the petitioner has purchased the property in S.No.11/2A2 from the vendor, who had purchased the same from Hosur Co-operative House Building Society under a registered sale deed and has constructed the building in S.No.11/2A2 by obtaining the plan approval from the Hosur New Town Development Authority. According to the respondents, the petitioner, while constructing the building situated in S.N.11/2A2, has surpassed the limits of S.No.11/2A2 and encroached the Government land in S.No.11/2A1 according to her convenience and the said encroachment in S.No.11/2A1 is liable to be evicted. It is further stated by the respondents that it is their duty to follow the rules framed by the Government from time to time in respect of encroachments to be evicted which are made in the public land and the encroachments cannot be allowed to continue and hence necessary actions are being taken by the respondents in the interest of general public and that cannot be questioned by the petitioner. According to the respondents, the present writ petition has been filed against the action taken by the respondents relating to the encroachment made by the petitioner stated above and she had obtained an interim injunction on 17.12.2005 and that order is in respect of S.No.11/2A2 and not in respect of S.No.11/2A1.
10. The first respondent in his counter affidavit has stated that he has no knowledge about the interim order passed by this Court on 17 .12.2005 and he came to know about the order only on 19.12.2005 and there is no intimation from the office of the Government Pleader regarding the order of interim injunction and hence well before receiving the communication in respect of the interim order, he has acted in accordance with law to evict the encroachment.
11. The second respondent in his counter has stated that he received the telegram from the petitioner on 17.12.2005 stating that she had obtained interim injunction in S.No.11/2A2 and there is no intimation from the office of the Government Pleader regarding the order of interim injunction and the second respondent has acted in accordance with law to evict the petitioner only from S.No.11/2A1 and the removal of encroachment was made only in the larger interest of the public.
12. Mr.AR.L.Sundaresan, the learned Senior Counsel for the petitioner submitted that the respondents are fully aware of the order of injunction, as communicated to them by telegram as well as letter and in fact, the second respondent has admitted in his counter that he received the telegram on 17.12.2005 itself and the property is described in the writ petition by stating its Door number, Plot number and Town Survey number and even assuming that additional construction was put up in some other survey number, the respondents cannot give restricted meaning to the order themselves and go ahead with demolition of the building by using JCB and the respondents, in their counters, have not denied the specific averments made by the petitioner in her affidavit and they have also not denied the meeting of the petitioner with them and her pleading not to demolish the construction by pointing out the order of injunction granted by this Court and on the other hand, the first respondent with utmost disrespect and disregard, tore the copy of the order which was given to him and directed the second respondent to commence demolition and the same was carried out by the second respondent and no notice under any Act, Rule or Regulation for demolition was given to the petitioner and the building has been demolished in utter violation of the injunction order and the respondents have shown scant respect to the order of the Court and they are liable to be punished for their wilful disobedience of the order and he relied on the following decisions:
1)MULKH RAJ v. THE STATE OF PUNJAB (AIR 1972 SUPREME COURT 1 197),
2)ASHARAM M.JAIN v. A.T.GUPTA AND OTHERS ((1983) 4 SUPREME COURT CASES 125),
3)J.VASUDEVAN v. T.R.DHANANJAYA (AIR 1996 SUPREME COURT 137),
4)ARTS AND COMMERCE COLLEGE, PEN. DISTRICT RAIGAD v. STATE OF MAHARASHTRA AND OTHERS (1994 CRI.L.J.172),
5)HARI SHANKER BHANDARI v. SECRETARY, PUBLIC HEALTH AND FAMILY WELFARE DEPT.
AND OTHERS (1994 CRI.L.J. 3518),
6)GOPAL LAL v. O.P.MEENA AND ANOTHER (1995 CRI.L.J.766) and
7)RAMDEO ORAON v. RUPLAL MANJHI AND ANOTHER (2003 CRI.L.J.2771).
13. Mr.A.L.Somayaji, the learned Additional Advocate General appearing for both the respondents contended that the specific case of the petitioner in the writ petition is that she purchased the property situated in S.No.11/2A2 and has constructed a building in it as per the approved plan and the respondents have to be restrained from in any manner demolishing the construction made in that survey number only and the respondents have admitted the title of the petitioner to the property comprised in S.No.11/2A2 and whereas, while putting up the construction, the petitioner has surpassed the limits of S.No.11/2A2 and encroached the adjoining land in S.No.11/2A1 belonging to the Government and the encroachment cannot be allowed to continue and the interim injunction order pertains only to the property comprised in S.No.1 1/2A2 and hence action was taken by the respondents to remove the illegal encroachment in S.No.11/2A1 and there is no deliberate act of violating the order.
14. In reply, the learned Senior Counsel for the petitioner contended that in the guise of removing the encroachment, the lawful construction put up by the petitioner has been demolished and the petitioner is not a land grabber and there is no unlawful encroachment and even assuming so, notice under Section 7 of the Land Encroachment Act has to be given to the petitioner and order under Section 6 of the Act has to be passed and right of appeal is provided to the petitioner and the petitioner has given full description of her property by mentioning the Door number, Plot number and Survey number and the interim order mentions that property and what is demolished is the construction made in S.No.11/2A2 only and the petitioner has specifically averred that the respondents had knowledge about the interim order of injunction and in the absence of specific denial in the counter affidavits, it must be deemed to have been admitted and the plea of apology is not made from the bottom of the heart and does not deserve to be accepted.
15. The point for determination in this contempt petition is as to whether the respondents have wilfully disobeyed the order of interim injunction of this Court.
16. At the outset, it can be pointed out that the second respondent in his counter affidavit has admitted that he received the telegram from the petitioner on 17.12.2005 stating that she had obtained interim injunction in Survey No.11/2A2. The first respondent in his counter affidavit has stated that he had no knowledge about the interim order on 17.12.2005 and he came to know about the same only on 19.12.20 05 and there is no information from the office of the Government Pleader regarding the interim order. This statement of the first respondent does not appear to be correct. The counsel for the petitioner has communicated the substance of the order of injunction to both the respondents as well as the District Collector by telegram on 16.12.200 5 at 19.14 hours from the Telegraph Office, Adyar. The xerox copy of the telegram and the telegraph receipts are found in page No.51 of the typed set filed by the petitioner. Further, the counsel for the petitioner has sent a letter dated 17.12.2005 addressed to both the respondents as well as the District Collector about the filing of the writ petition, the order of injunction dated 16.12.2005 and the telegraphic communication already sent and a copy of the letter is found in page No.63 of the typed set. The first respondent ought to have received the communication as admitted by the second respondent. Moreover, the second respondent, as a subordinate of the first respondent, must have brought it to the notice of the first respondent on that date itself.
17. The petitioner in her affidavit has specifically averred the events which took place on the date of demolition viz., 19.12.2005 and those specific averments are as follows:
" a) The respondents came to her property on 19.12.2005 at about 9 am with posse of about 40 policemen, JCB and about 20 workmen and she went to the first respondent and informed that she had already filed writ petition and interim injunction was granted on 16.12.2005 restraining the respondents from demolishing her construction and the text of the order was also communicated by telegram by her advocate on 1 6.12.2005 and she also gave to the first respondent the original letter dated 17.12.2005 written by her advocate addressed to the respondents and the District Collector and the first respondent read the letter and retained it with him, but left the place saying that he has not been communicated with the order of the High Court and he would not act upon any communication by the advocate.
b) Both the respondents came back at 2 pm on 19.12.2005 to the property of the petitioner and by that time, the petitioner had received the copy of the interim injunction order by fax from her advocate at Chennai and she took xerox copy of the said fax and showed the order to respondents 1 and 2 at 2 pm and the first respondent, with utmost disrespect and disregard, tore the copy of the order which was given by the petitioner and directed the second respondent to commence demolition and go ahead with it.
c) Thereafter, at 3 pm, the men of the respondents with JCB, which was brought by them, demolished an extent of about 18 ft. width of the building of the petitioner. The next day, on 20.12.2005, a further extent of about 5 ft. of the building was also demolished."
18. The respondents, in their counter affidavits, have only made a general denial of the allegations contained in the contempt petition. When the petitioner has made specific factual allegations about the events and if the respondents want to controvert the same, they have to make a specific denial in the counter affidavits. If not, it must be deemed to have been admitted and that is the case here.
19. The only contention of the respondents is that the petitioner while constructing the building situated in S.No.11/2A2, has surpassed the limits of S.No.11/2A2 and encroached the adjoining Government land in S.No.11/2A1 and the respondents have acted in accordance with law to evict that encroachment.
20. The petitioner has described her property in the writ petition not only giving the Survey Number, but also by describing it as the construction bearing Door No.37/17-A in Plot No.91 and the order of interim injunction pertains to that property. It is admitted by the respondents that the property has been assessed to property tax by the Hosur Municipality and the petitioner is in possession and enjoyment of the same. It is not the case of the respondents that they have issued any notice under Section 7 of the Land Encroachment Act to the petitioner with regard to the alleged encroachment. Nothing prevented the respondents from taking steps for vacating the interim order by placing the relevant materials before the Court and that has not been done.
21. Both the respondents have admitted in their counters that they knew about the interim order of injunction on 19.12.2005, but, still they have demolished the building of the petitioner with JCB, as seen in the photographs produced by the petitioner. There is no doubt that the respondents have wilfully disobeyed the order of interim injunction and committed civil contempt rendering themselves liable to be punished under Section 12 of the Contempt of Courts Act, 1971.
22. The learned Additional Advocate General, while concluding his arguments, alternatively submitted that it was never the intention of the respondents to disobey the order of this Court and both of them have tendered unconditional apology in the opening paragraph of their counter and the first respondent-Sub Collector is 30 years old young man and if the Court is to punish him for contempt, his future will be seriously affected. Per contra, the learned Senior Counsel for the petitioner vehemently contended that the respondents, who are public officers, have shown scant respect to the order of the Court and have willfully disobeyed it by demolishing the construction causing damage of several lakhs of rupees and they have justified their action in the counter affidavits and an attempt was made, in the course of the hearing, to maintain that there was no lapse on their part and even the apology is half-hearted and the Court is bound to award proper punishment to the respondents.
23. The series of events happened on the day of demolition would disclose the deliberate attitude of indifference and come-what-mayattitude of the respondents to the proceedings before the Court. There was a determined and deliberate action by the respondents to frustrate the interim order of this Court. The apology does not impress as an act of penitence or good grace but appears to have been tendered as a tactful move when in tight corner, to ward off the Court and the acceptance of such apology in this case would amount to allow the offenders to go away with impunity after having committed gross contempt. If orders of injunction are disobeyed, the effect would be that people would lose faith in the system of administration of justice and an impression will be created in their mind that the process of this Court has lost its competency and it is unable to help the litigants. That would be a death knell to the rule of law and this Court cannot be a party to it and it is duty bound to uphold the majesty of law.
24. In this context, the following pronouncements of the Supreme Court are to be borne in mind. In TAPAN KUMAR MUKHERJEE v. SRI HEROMONI MONDAL AND ANOTHER (AIR 1991 SC 281), Their Lordships of the Apex Court have laid down as follows:
we should like to put out a warning that where a case of wilful disobedience is made out, the Courts will not hesitate and will convict the delinquent officer and that no lenience in the Courts attitude should be expected from the Court as a matter of course merely on the ground that an order of conviction would damage the service career of the concerned officer.
25. In J.VASUDEVAN v. T.R.DHANANJAYA (AIR 1996 SUPREME COURT 137), Their Lordships of the Supreme Court have expressed as under:
.... It may be stated, though it is trite, that nobody is above the law. The fact that the petitioner is an I.A.S.Officer is of no consequence, so far as the sentence is concerned. We would indeed think that if a high officer indulges in an act of contempt, he deserves to be punished more rigorously, so that nobody would take to his head to violate Courts order. May we also say that a public officer, being a part of Government, owes higher obligation than an ordinary citizen to advance the cause of public interest, which requires maintenance of rule of law, to protect which contemnors are punished.
26. In the result, both the respondents/contemnors are found guilty of civil contempt and they are sentenced to undergo simple imprisonment for a period of one month each and to pay a fine of Rs.1,000/- each, in default of payment, to undergo simple imprisonment for a further period of two weeks each. This punishment shall, however, be kept suspended for a period of fifteen days from today. The Contempt Petition is ordered accordingly. Connected Sub-Application No.454 of 2005 is closed.
Vks To
1.Mr.Anandkumar Sub Collector, Hosur Taluk, Krishnagiri.
2.Mr.Ponnuswami, Tahsildar, Hosur Taluk, Krishnagiri.