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2016 DIGILAW 755 (MAD)

Pandian v. S. Varadharajan

2016-02-25

P.N.PRAKASH

body2016
JUDGMENT : 1. This Criminal Miscellaneous petition coming on for hearing on this day upon perusing the petition and the affidavit filed in support thereof on the file of the High Court and upon hearing the arguments of M/S.R.MAHESWARAN, Advocate for the petitioner and of M/s. RAJARAJAN Government Advocate for the respondents 2 to 4, and of Mr. G.R.Swaminathan for S.Devasena, Advocate for the 1st Respondent this court made the following order:- On 18.02.2016, this Court has passed the following order in Crl.O.P.(MD) No.2984 of 2016: “3. It is seen that the petitioner is a hereditary Executive Trustee of Sri Arulmigu Sanjeevi Rayar Koil, Pidampatti. Earlier in W.A.Nos.1531 and 1532 of 2014, the Division Bench of this Court had passed orders on 29.01.2016 granting an order of interim injunction restraining the Revenue Authorities and police from interfering with the auctioning of fruit bearing and non-fruit bearing trees and cutting of trees in patta land and 8 tanks of Sri Arulmigu Sanjeevi Rayar Koil, Pidampatti. When the auction has been conducted and when the successful bidder was removing the trees, it is alleged that he has been prevented by some vested interest. In this connection, the petitioner has given a complaint based on which petition enquiry in C.S.R.No.10 of 2016 is being conducted. 4. Under such circumstances, this Court directs the respondent police to conduct enquiry in the case in C.S.R.No.10 of 2016 expeditiously and provide sufficient police protection in terms of the order passed by the Division Bench in W.A.Nos.1531 and 1532 of 2014, dated 29.01.2016. 5. With the above directions, this Criminal Original Petition is disposed of. 2. Today, Mr.M.Rajarajan, learned Government Advocate and Mr.R.Maheswaran, learned counsel appearing for private parties represented that by virtue of the order passed by this Court, the petitioner has obtained police protection for felling and removing the trees in the revenue lands, on account of which, a serious law and order problem has arisen in the village and therefore, pressed for recalling the order. 3. Pandian / petitioner herein / 4th respondent in Crl.O.P.(MD) No.2984 of 2016 has filed this present petition for recalling the order, on the ground that S.Varadharajan / petitioner in Crl.O.P.(MD) No.2984 of 2016 has suppressed several facts before this Court and has obtained the order of police protection. 3. Pandian / petitioner herein / 4th respondent in Crl.O.P.(MD) No.2984 of 2016 has filed this present petition for recalling the order, on the ground that S.Varadharajan / petitioner in Crl.O.P.(MD) No.2984 of 2016 has suppressed several facts before this Court and has obtained the order of police protection. Hence, this Court issued notice to Mr.G.R.Swaminathan, counsel on record in Crl.O.P.(MD) No.2984 of 2016 and posted the matter at 02:15 for hearing today. 4. Heard Mr.G.R.Swaminathan, learned counsel for S.Varadharajan / petitioner in Crl.O.P.(MD) No.2984 of 2016, Mr.R.Maheswaran, learned counsel for Pandian/R4 in Crl.O.P.(MD) No.2984 of 2016 and the petitioner in Crl.M.P.(MD) No.1817 of 2016, for recalling the order and Mr.M.Rajarajan, learned Government Advocate. 5. Mr.Maheswaran, learned counsel for the petitioner submitted that the order obtained fraudulently from this Court has to be recalled, which was refuted by Mr.G.R.Swaminathan, learned counsel for the petitioner in Crl.O.P.(MD) No.2984 of 2016. 6. Normally, this Court has no power to recall an order in view of the bar under Section 362 Cr.P.C., but in extra ordinary cases, where a serious mistake has crept in, it cannot be stated that this Court is helpless. [See Deepa Gourang Murdeshwar Katre vs. Principal V.A.V.College of Arts and Others, (2007 AIR SCW 1901) and A.V.Papayya Sastry and Others vs. Government of A.P. and Others, (2007 AIR SCW 2212)]. 7. It is the case of Varadharajan that he is the hereditary trustee of Sri Sanjeevirayar Kovil and it is his assertion that the Temple owns eight water tanks since the time of Rule of Raja Thondaman. In this regard, Varadharajan filed W.P.(MD) Nos.12242 of 2014 & 1603 of 2010 in which final orders were passed on 24.09.2014 by a learned Single Judge of this Court, the operative portion of which, reads as follows: “11. In the light of the above, this Court is of the view that the following directions would meet the ends of justice: i. The Tahsildar, Kulathur Taluk, shall consider the petitioner's application, dated 21.12.2009, for grant of Patta in respect of eight tanks (referred supra), which according to the petitioner are Patta lands of the Temple and erroneously deleted from the Patta when computerisation was effected. The said application shall be considered by conducting an enquiry, after issuing notice to the petitioners as well as the Joint Commissioner, H.R. & C.E., Department, Trichirappalli and Assistant Commissioner, H.R. & C.E., Department, Pudukottai. The said application shall be considered by conducting an enquiry, after issuing notice to the petitioners as well as the Joint Commissioner, H.R. & C.E., Department, Trichirappalli and Assistant Commissioner, H.R. & C.E., Department, Pudukottai. The petitioners shall produce all documents in respect of their claim and after conducting enquiry, the Tahsildar, Kulathur Taluk, shall pass orders on merits and in accordance with law, within a period of four weeks, from the date on which the personal hearing is concluded. ii. The Joint Commissioner, H.R. & C.E., Trichirappalli / Assistant Commissioner, H.R. & C.E., Pudukkottai, shall place their written statements with regard to the claim made by the temple for grant of Patta clearly disclosing their stand in the matter with regard to the claim made and as regards the 'Pattayam' the proceedings of the H.R. & C.E., Department, dated 30.09.1992, and all records, which are in their possession. These records should be considered by the Tahsildar, Kulathoor Taluk, at the time when enquiry is being conducted. iii. Till the proceedings before the Tahsildar, Kulathoor Taluk is concluded in terms of the above directions, the decision taken to conduct auction the karuvela trees standing in the tanks or granting permission to cut and remove the trees shall be kept in abeyance as agreed to be kept in abeyance, by proceedings vide Na.Ka.5719 of 2013/A5, dated 19.08.2013.” 8. Varadharajan was not happy with the said order and therefore, he filed W.A.(MD) Nos.1531 and 1532 of 2014 before this Court and a Division Bench of this Court granted the following interim injunction on 29.01.2016: “Heard Mr.G.R.Swaminathan, learned counsel representing the counsel for the petitioner, Mr.M.Alagadevan, learned Special Government Pleader appearing for the respondents 1 to 3 and Mr.M.Rajarajan, learned Government Advocate appearing for the fourth respondent. Post after 4 weeks. There will be an interim injunction until further orders” On the strength of this interim injunction, Varadharajan approached this Court in Crl.O.P.(MD) No.2984 of 2016 for police protection, which was granted as aforesaid. Now, it is pointed out to this Court that the land belongs to the Revenue Department and not to H.R.&C.E. Department and that the Revenue Department was not made as a party in W.P.(MD) Nos.12242 of 2014 & 1603 of 2010 by Varadharajan and therefore, the Revenue Department was not able to inform the true position to the Court. 9. Now, it is pointed out to this Court that the land belongs to the Revenue Department and not to H.R.&C.E. Department and that the Revenue Department was not made as a party in W.P.(MD) Nos.12242 of 2014 & 1603 of 2010 by Varadharajan and therefore, the Revenue Department was not able to inform the true position to the Court. 9. Mr.M.Rajarajan, learned Government Advocate has submitted that now the Revenue Department has filed an application to implead themselves as party respondent to W.A.(MD) Nos.1531 and 1532 of 2014 and also to vacate the interim order. 10. Mr.Maheswaran, learned counsel appearing for Pandian has contended that the eight water tanks actually belong to Pidampatti Village Panchayat and not to the Temple. He has further contended that Pidampatti Village Panchayat was not included as respondent in W.P.(MD) Nos.12242 of 2014 & 1603 of 2010 and W.A.(MD) Nos.1531 and 1532 of 2014 and the said Panchayat has taken steps to implead themselves as respondent in W.A.(MD) Nos.1531 and 1532 of 2014. 11. Mr.G.R.Swaminathan, learned counsel for the petitioner in Crl.O.P.(MD) No.2984 of 2016 strongly contended that the petitioner has not played any suppression and that he himself filed an application for impleading Pidampatti Panchayat Village in W.A.(MD) Nos.1531 and 1532 of 2014, which is pending. 12. In the considered opinion of this Court, had these intricate facts been brought to the notice of this Court, this Court would not have usurped the powers of the Division Bench where W.A.(MD) Nos.1531 and 1532 of 2014 are pending. The remedy available to Varadharajan is only to approach the Division Bench for seeking Police protection in order to implement the injunction order granted to him. Therefore, this Court is of the view that this is an extraordinary case where this Court has unwittingly strayed into the jurisdiction of the Division Bench, which requires to be remedied. Mr.G.R.Swaminathan contended that the Tahsildar has passed an order threatening Varadharajan that he will file a case of theft against him, if the trees are felled and this clearly amounts to contempt of the Division Bench Order. It is open to Varadharajan to approach the Division Bench with an application for contempt, if so advised. Mr.G.R.Swaminathan contended that the Tahsildar has passed an order threatening Varadharajan that he will file a case of theft against him, if the trees are felled and this clearly amounts to contempt of the Division Bench Order. It is open to Varadharajan to approach the Division Bench with an application for contempt, if so advised. Hence, the order dated 18.02.2016 passed in Crl.O.P.(MD) No.2984 of 2016 is hereby recalled and liberty is given to all the parties to adjudicate their rights before the Division Bench in the manner known to law.