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2000 DIGILAW 814 (MAD)

Padmini Sivasubramanian v. Pankaj Kumar Bansal

2000-08-14

P.SHANMUGAM

body2000
Judgment : 1. This is an application to punish respondent 1 to 3 for disobeying the order dated 27.4.2000 passed in W.P. No. 7646 of 2000. 2. Petitioner had filed W.P. No. 7646 of 2000 praying for the issue of a writ of mandamus forbearing respondents 1 and 2 herein or his men or any person claiming under his authority from dispossessing the petitioner from the petition properties and from demolishing the properties situated at Palladam Road, Tiruppur. The writ petition was dismissed at the admission stage holding that there is no cause of action to seek the relief sought for. However, in para 3 of the order, I have observed as follows: The temple, as owners, are entitled to seek removal of encroachers, if any. However, they will have to follow the due process of law before eviction. The notice issued by the Sub-Collector obviously appears to be for cancellation of pattas given to the encroachers ‘ and for further action. The Sub-Collector will pass appropriate orders before ordering removal on merits and in accordance with law. There is no cause of action at present to seek the relief sought for. Hence, the writ petition is dismissed. No costs.” 3. According to the petitioner, the contents of the above order were brought to the knowledge of respondents 1 and 2 by a letter dated 28.4.2000 addressed by the applicant counsel and he personally met the first respondent on 2.5.2000 and served the letter dated 28.4.2000 and clearly explained the scope of the order of this court and further requested 30 days’ time to produce further document since the applicant has to trace the title more than 100 years old. While so, the first respondent passed an order dated 2.5.2000 received by the petitioner on 5.5.2000 cancelling the patta. Applicant was informed that the superstructure on the petitioner land was going to be demolished and 100 shops including five shops belonging to the petitioner were demolished by the respondents. According to the applicant the above act of demolition was carried out by the first and second respondents inspite of fully knowing and contents and the consequences of the violation of the order of the High Court and hence the above application. 4. The first respondent Mr. Pankaj Kumar Bansal I.A.S., Sub-Collector, Tiruppur. Coimbatore has filed a counter affidavit. According to him, the Executive Officer, Arulmighu Viswesvarasamy and Veeraraghava Perumal Temple. 4. The first respondent Mr. Pankaj Kumar Bansal I.A.S., Sub-Collector, Tiruppur. Coimbatore has filed a counter affidavit. According to him, the Executive Officer, Arulmighu Viswesvarasamy and Veeraraghava Perumal Temple. Tiruppur, in his letter dated 3.9.99 that an extent of 1.62 acres of land in S.F. No. 85 of 1981 in Tiruppur Town Village. He has stated that the temple is situated in an extent of 1.62 acres. The built-up area of the building is an extent of 0.62 acres and the remaining one acre of land around the temple compound has been, in due course, assigned to private persons without the knowledge of the temple authorities and requested that the pattas granted to private persons may be ordered to be cancelled. The Collector has also requested to take necessary action and dispose of the matter. Notices were issued for enquiry and the enquiry was conducted on several dates, namely on 31.3.2000. 14.4.2000. 18.4.2000 and 2.5.2000. The petitioner participated in these enquiries and had been requesting time to file counter with the documents. Ultimately, on the last hearing on 2.5.2000, she was absent, but she had already given a petition dated 24.4.2000, the copy of the partition deed. The enquiry of the case was, therefore, completed on 2.5.2000. He has also stated that originally, the land was registered as Koil promboke in the revenue records and subsequently, some of the area has been classified as natham and it has to be construed that the names of the persons found in the ‘Remark’ column are only encroachers. The permanent house site pattas were granted by the Special Tahsildar. Town Survey, Tiruppur to persons noted for business places in the year 1999 without any powers to issue pattas within Municipal limits and for commercial places. These pattas have been granted on free of land value without getting orders from the Government and hence, finding that these orders were wrong, final orders were passed cancelling the above pattas from private persons dated 2.5.2000 and they were ordered to be reclassified. Petitioner filed W.P. No. 7646 of 2000 for bearing the Sub-Collector from dispossessing the petitioner. The said writ petition was dismissed on 27.4.2000 and the judgment of the above writ petition was received by the office on 9.5.2000. The Sub-Collector came to know of the existence of the writ petition only on 2.5.2000 after the office hours. Petitioner filed W.P. No. 7646 of 2000 for bearing the Sub-Collector from dispossessing the petitioner. The said writ petition was dismissed on 27.4.2000 and the judgment of the above writ petition was received by the office on 9.5.2000. The Sub-Collector came to know of the existence of the writ petition only on 2.5.2000 after the office hours. By then, the proceedings of the Sub-Collector had been passed. He further states that after the enquiry was over on 2.5.2000 and a decision was arrived at and orders to that effect were passed by the first respondent, the counsel of the applicant at about 6.30 pm appeared before him and presented a petition. The counsel did not produce either the original or a certified copy or xerox copy of the order of the High Court. The office took up the cancellation of pattas granted in contravention of the rules in respect of temple lands only. Eviction of encroachment of temple land was not dealt with by his office and of course, his office is not entrusted of eviction of encroachments for the lands vested with the temple. Enquiry in the matter was conducted on 31.3.2000 14.4.2000, 18.4.2000 and 2.5.2000. Each time, notices were served on the petitioner about the enquiry. She attended the enquiry on 31.3.2000 and 18.4.2000. She did not attend the enquiry on 14.4.2000. On 2.5.2000, she did not attend the enquiry in time. She was absent when she was called upon. Other parties who turned up for enquiry were enquired. Since he had every reason to believe that she was adopting dilatory tactics, he concluded the enquiry and passed final orders on 2.5.2000. When everything was over, the counsel for the applicant at about 6.30 pm. appeared before him and presented a petition. He has stated that he has great respect and regard to the High Court and that he never disobeyed the orders of this Court. 5. An additional affidavit and a supporting affidavit by the counsel for the petitioner have been filed. wherein he has stated that he personally met the Sub-Collector around 11 am on 2.5.2000, attended the enquiry and personally handed over the letter dated 28.4.2000 to the Sub-Collector and explained the scope of the High Court order and requested time to produce further document to prove the petitioner’s title of the land in dispute and he appeared before him only during office hours. He further states that he personally visited the temple office and handed over a letter to the Executive Officer personally. The Executive Officer read the contents of the letter dated 28.4.2000 and at that time, at about 12 noon. one of the trustees of the temple Mrs. Vasundhara Devi was also present. In the supporting affidavit, he has stated that he handed over the letter dated 28.4.2000 incorporating the gist of the order that the superstructure cannot be demolished without due course of law. The first respondent stated that he cannot act upon the counsel letter in the absence of an order copy. Due to the summer vacation the copy of the order could not be obtained on 2.5.2000 and therefore, he informed him that the copy of the order will be sent as soon as it is ready. An additional counter affidavit has been filed by the Sub-Collector, wherein he has denied the appearance of the counsel for the petitioner at 11 am on 2.5.2000 as alleged. He reiterated his original stand that he attended the office by 6.30 pm and gave a letter dated 28.4.2000 purported to be written by S. Silambanan, Advocate. He also states that when the counsel requested for an acknowledgement, as it was out of office hours, he had instructed the Tapal Assistant to give acknowledgement of the letter from the counsel. 6. The second respondent has filed a counter and an additional counter with a supporting affidavit of Smt. Vasundhara Devi. He has stated that he had not received the letter dated 28.4.2000 addressed by the applicant counsel. He takes objection for including him in his personal name and states that neither in his personal capacity nor as Executive Officer, he was responsible for any demolition. In the additional affidavit, in reference to the counsel’s affidavit, he has stated that the advocate met him on 2.5.2000, but he did not hand over any letter to him. If he had received any such letter, he would have acknowledged the same. Smt Vasundhara Devi, one of the trustees of the temple, who was said to be present during the meeting has filed an affidavit stating that it was true that she was present at that time, but it is incorrect to allege that he personally handed over the letter” to him and that the Executive Officer read the contents of the letter. Reply affidavits have been filed stating that her counsel Mr. H. Mohd. Rafi was requested to attend the enquiry on 2.5.2000 and also bring the order of the High Court to the notice of the first respondent and she denies that the counsel met the first respondent after office hours. The demolition of the building was carried out in violation of the court’s order under the direct supervision of the first respondent and he has committed a contempt. 7. The learned Government Pleader produced the original file of the first respondent relating to the enquiry. In the copy of the notice dated 28.4.2000, it has been noted that the letter was given to him after office hours. In the copy of the letter produced by the learned senior counsel said to have been acknowledged by the second respondent, it is seen that one night watchman has acknowledged the letter. 8. With the above pleadings, I have heard the senior counsel for the petitioner in detail and Mr. Patti Jegannathan, Special Government Pleader on behalf of the first respondent and Mr. S.V. Jayaraman on behalf of the second respondent. 9. After detailed hearing, it is seen that W.P. No. 7646 of 2000 was dismissed on 27.4.2000 holding that there is no cause of action at present to seek the relief sought for. In the course of the order, I have observed that the authorities will have to follow the due process of law before eviction and the notice issued by the Sub-Collector obviously appears to be for cancellation of patta given to encroachers and for further action. Assuming for the sake of argument that there was a direction to the first and second respondent restraining them from passing an order of eviction, the said order was admittedly ‘not communicated. On 27.4.2000, the learned senior counsel who appeared on behalf of the petitioner sought the copy of the order on the same day and I have directed the office to furnish the copy of it the next day 28.4.2000, being the last working day before vacation. In the original order, it is stated as follows: “Note to Office:-Issue a copy of this order tomorrow (28.4.2000)”. In the original order, it is stated as follows: “Note to Office:-Issue a copy of this order tomorrow (28.4.2000)”. From the original seal of the Office of the High Court affixed in the original steno copy of the order served to the petitioner, it is clear that the copy was made ready on 28.4.2000 as per the order of the court. Therefore, the case of the petitioner in his letter dated 28.4.2000 addressed to the respondents that the order of the learned Judge would be available only on 3.5.2000 in view of the vacation declared by the High Court is not a correct statement of fact. The learned counsel having requested f or a copy of the order and the copy of the order having been made ready on 28.4.2000, he ought to have obtained the copy of the order on 28.4.2000 before proceeding to Tiruppur. It is further stated in the notice that the writ petition was “disposed of” with a direction to the Sub-Collector and to the Executive Officer that without affording reasonable opportunities and following the procedure established by law they cannot seek to evict and dispossess the petitioner and other tenants from the said properties and attempt to demolish the properties. This statement in the letter also does not correctly reflect the gist of the order passed by me in the writ petition. Therefore, in my view, the petitioner has not come out with the true facts before the authorities on 28.4.2000. Even though on the alleged date of the production of the copy of the order the actual copy of the High Court order was made ready and was available, in my considered view, the petitioner, for reasons best known to her, did not wan t to obtain it and produce it before the authorities, but was satisfied in communicating the “gist” of the order with her own interpretation of it. 10. The Sub-Collector has passed an order on 2.5.2000 cancelling the pattas and there is no order in reference to the removal of the encroachers. Therefore, the direction that the Sub-Collector will pass appropriate orders ordering removal on merits and in accordance with law will not apply to the order dated 2.5.2000. The observation that they will have to follow due process of law before eviction is a general direction without any cause of action or specific direction. Therefore, the direction that the Sub-Collector will pass appropriate orders ordering removal on merits and in accordance with law will not apply to the order dated 2.5.2000. The observation that they will have to follow due process of law before eviction is a general direction without any cause of action or specific direction. As rightly contended on behalf of the respondents, firstly they were not furnished with a copy of the High Court for holding that they have disobeyed the order of the High Court and secondly, they have not taken action as alleged for eviction before following due process of law. According to the Special Government Pleader, all the occupants and tenants were informed through public notice that eviction will be carried out and thereafter, the encroachers were evicted. 11. It is further seen that this order was passed exparte without issuing notice or the respondent counsel taking notice. Therefore, there is no scope for the respondents being informed of the order in the writ petition. Hence, they are right in contending that they are not aware of the filing of such a writ petition and the particulars and details of the averments or the names of the petitioners who had filed the writ petition. Hence, it cannot be treated that they were aware and had knowledge of the order of this Court. 12. In the above circumstances, no grounds are made out for a case of contempt. There is no specific direction to the respondents and that no direction was issued to the respondents and copies were not served on the respondents before holding them for disobedience of the order. 13. I have found that the petitioner has not obtained any acknowledgement for having served the copy of the letter on 2.5.2000 during office hours. Insofar as the second respondent is concerned, he was not admittedly served the copy in the office of the second respondent. The petitioner, in his letter, has not correctly stated the gist of the order. While the writ petition was dismissed holding that there is no cause of action, he has stated that the writ petition was disposed of with a direction. He has included expressions which are not found in the order. The petitioner, in his letter, has not correctly stated the gist of the order. While the writ petition was dismissed holding that there is no cause of action, he has stated that the writ petition was disposed of with a direction. He has included expressions which are not found in the order. The petitioner having asked for a copy of the order to be made ready on 27.4.2000 and obtained order that it will be ready on 28.4.2000 and actually the order having been made ready on 28.4.2000, had not taken care to obtain copy and furnish the same to the respondents. 14. The third respondent, who is the Commissioner of Tiruppur Municipality, was not a party in the writ petition. He was not communicated of the copy of the order. In the application, it is stated that he had acted on the dictates of the other respondents and ordered his staff to demolish the superstructure, even though he was informed about the court order. But, it is not stated as to when the third respondent was informed of the court order. Even the advocate’s letter dated 28.4.2000 was not addressed to the third respondent. In the above circumstances, it cannot be stated that the third respondent has disobeyed the order of the High Court. 15. It is further submitted, but not denied, that the petitioner had subsequently filed two writ petitions W.P. No. 8526 of 2000 against the order of the Sub Collector dated 2.5.2000 and W.P. No. 8527 of 2000 for compensation in connection with this property and that they are pending. The Government has also constituted a judicial enquiry commission to enquire into the reasons for the demolition. 16. The Supreme Court, in Kapildeo Prasad Sah v. State of Bihar , 1999 (III) C.T.C. 189, has held that for holding the respondents to have committed contempt, civil contempt at that, it has to be shown that there has been wilful disobedience of the judgment or order of the court. The power to punish for contempt is to be resorted to when there is clear violation of the court’s order. Since notice of contempt and punishment for contempt is of far reaching consequence, these powers should be invoked only when a clear case of wilful disobedience of the court’s order ha s been made out. 17. The power to punish for contempt is to be resorted to when there is clear violation of the court’s order. Since notice of contempt and punishment for contempt is of far reaching consequence, these powers should be invoked only when a clear case of wilful disobedience of the court’s order ha s been made out. 17. In this case, the writ petition has been dismissed without notice and hearing them in the writ petition. The observation made to the effect that they have to follow due process of law before-eviction is the statement of legal position and cannot be construed as a direction given to the respondents so as to haul them up for contempt. The petitioner has not obtained and communicated the copy of the order and the gist of the order said to have been communicated does not set out the facts correctly. Hence, there is no case for contempt. 18. There is no prescribed procedure for conduct of the contempt proceedings. Rule 6 of the Contempt of Courts (Madras High Court) Rules, 1971 states that every application for contempt of court shall be accompanied by two additional sets of all papers and the required number of copies for service. Every such application shall be posted before the Judge in respect of whose judgment contempt is alleged. Section 17 of the Contempt of Courts Act provides for the procedure of proceedings taken under Section 15 of the Act which refers to criminal contempt. 19. In Sukhdev Singh Sodhi v. The Chief Justice and Judges of The Pepsu High Court, A.I.R. 1954 S.C. 186, it was held that the High Court can deal with contempt matters summarily and adopt its own procedure. All that is necessary is to .see that the procedure is fair and that the contemnor is given fair and reasonable opportunity to defend himself. In Pritam Pal v. High Court of Madhya Pradesh , A.I.R. 1992 S.C. 904, it was held by the Supreme Court that the power conferred upon the High Court under Article 215 of the Constitution is an inherent power and the jurisdiction vested is a special one. They are not controlled by or limited by any statute or by any provision of the Code of Criminal Procedure or any other rule. They are not controlled by or limited by any statute or by any provision of the Code of Criminal Procedure or any other rule. The caution that has to be observed in exercising this inherent power by summary procedure is that the power should be used sparingly. Their Lordships observed as follows; “The procedure to be followed should be fair and the contemnor should be made aware of the charge against him and given a reasonable opportunity to defend himself.” In the light of these principles laid down, the contention of the petitioner that there must be an oral enquiry and that the contemnor should be examined cannot be accepted. Further, in the facts and circumstances of this case, there is absolutely no ground or reason for such a request for an enquiry. 20. For the above reasons, the contempt application is dismissed. No costs. Consequently, Sub Application Nos.174 and 175 of 2000 are also dismissed.