Dismissed

R.Santhamani v. the State of Tamilnadu

Madras HC19 Sept 2013WP/25977/2013

Case brief

AI extract

What is this about?

The Court dismissed a contempt petition filed against revenue authorities for delaying eviction from a water body, holding that procedural steps like inquiry and notice were followed. It also rejected a petition to recall an order and directed the Principal Secretary to hear the underlying Revision Petition immediately.

What did the court decide?

Contempt petition and miscellaneous petition to recall order dismissed; Principal Secretary directed to hear Revision Petition within two weeks.

R.Santhamani Vs the State of Tamilnadu — Contempt of Court | Madras HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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Dated : 19.09.2013

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Coram

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The Honourable Mrs.Justice CHITRA VENKATARAMAN

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and

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The Honourable Mr.Justice T.S.SIVAGNANAM

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Writ Petition No.25977 of 2013
and M.P.No.1/2013
and Cont.P.No.336 of 2013
and M.P.No.1 of 2013 in W.P.8367 of 2011
---
W.P.No.25977 of 2013:-
1.R.Santhamani
2.M.Devi
3.G.Balakrishnan
4.A.Sekar
5.M.Paul Thangam
6.D.Rukmani
7.V.Usha
8.V.Lakshmi
9.J.Pachaiammal
10.S.Vasantha
11.N.Ponnurangam
12.E.Annapoorani
13.B.Inbavalli
14.M.Narayanan
15.R.Murugammal
16.M.Ramasamy
17.N.Vijayakumar
18.M.Rathinapandian ... Petitioners
-vs-
1.The State of Tamil Nadu
Rep. By its Secretary to Government
Revenue Department
Fort St.George
Chennai-600 009.

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2.The Principal Secretary / Commissioner of Land Administration Chepauk Chennai-600 005

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https://hcservices.ecourts.gov.in/hcservices/

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3.The District Collector Kancheepuram District Kancheepuram

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4.The Thasildhar Tambaram Taluk Tambaram

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Chennai

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5.The Commissioner Tambaram Municipality Tambaram, Chennai ... Respondents

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Writ Petition filed under Article 226 of the Constitution of India, praying to issue a writ of Mandamus, forbearing the 2^nd respondent from proceeding further in the Revision Petition filed by the petitioners herein dated 09.07.2013 on the file of the 2^nd respondent till the disposal of M.P.No.1 of 2013 in W.P.No.8367 of 2011 on the file of this Court.

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WP.8367 of 2011:

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Writ Petition filed under Article 226 of the Constitution of India, praying to issue a writ of Mandamus, directing the respondents to maintain and keep the Survey Numbers 145, 146/7 and 164 as a Pond (Water reservoir) situated at Selaiyur Village Tambaram Taluk Kanchipuram District as before and consequentially prevent the encroacher from encroaching upon a pond by removing the encroachment as per the order No. Na.Ka.8546/2009/A5 on 30.09.2009 communicated by the Tahsildar, 3rd respondent to the Commissioner Tambaram Municipality 4th respondent herein.

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Contempt Petition No.336 of 2013:-

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M/s.Water Resources and Environmental Protection Welfare Society Selaiyur Rep. By its Secretary Th.E.Balaji

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No.189/6, Koram Street Extension Selaiyur

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Chennai-600 073 ..Petitioner .Vs.

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1.S.Sivashanmuga Raja The District Collector Kancheepuram District Kancheepuram

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https://hcservices.ecourts.gov.in/hcservices/

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2.S.Sivasubramaniam The Commissioner Tambaram Municipality Tambaram ..Respondents

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Contempt Petition filed to punish the respondents herein for committing contempt of the order dated 01.08.2011 passed by this Court in W.P.No.8367 of 2011.

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MP.No.1/2013: Petition filed under Article 226 of the Constitution of India, to Grant Leave to the Petitioners to file Recall the order dated 1.8.2011 and made in WP.No.8367 of 2011.

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For petitioner : Mr.V.T.Gopalan, Senior Counsel in W.P.25977/2013 for M/s.Sree Sun Associates For petitioner in Cont.P.No.336/2013 : Mr.M.N.S.Mohammed Habeeb Raja For respondents : Mr.R.Ravichandran, Addl Govt.Pleader in W.P.25977/2013 for R1 to R4. In Cont.P.336/2013 Mr.P.Srinivas for R2. COMMON ORDER (The Order of the Court was made by CHITRA VENKATARAMAN, J.)

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The present Contempt petition is filed by the writ petitioners in W.P.No.8367/2011, which was filed as a Public Interest Litigation for issue of writ of Mandamus to direct the respondents viz., Government of Tamil Nadu, District Collector, Kancheepuram, Tahsildar, Tambaram, Commissioner of Tambaram Municipality, District Revenue Divisional Officer, Kancheepuram to maintain and keep Survey Nos.145, 146/7 and 164 as a Pond (Water Reservoir) situated in Selaiyur Village, Tambaram Taluk, Kanchipuram District as before and consequently, prevent the encroachers from encroaching upon a pond and to remove the encroachments as per order No.Na.Ka.8546 of 2009/A5 dated 30.09.2009, communicated by the Tahsildar to the Commissioner, Tambaram Municipality.

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When the writ petition was taken up for hearing, admittedly, there was no appearance on the side of the petitioner. However, on going through the counter affidavit filed, this Court gave a direction to respondents 2 to 4 to jointly take all the steps and assist the concerned respondents to remove encroachments from the water body, after giving due notice to the encroachers. The said

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https://hcservices.ecourts.gov.in/hcservices/

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order was passed on 01.08.2011.

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Evidently, as seen from the documents enclosed in the Contempt Petition, some action was taken thereafter for removal of the encroachments. On the ground that the respondents had not removed the encroachments and there is an attempt to reclassify the pond as a vacant site, the present contempt petition has been filed.

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The allegation in the contempt petition is that the respondents have not taken any credible steps whatsoever, to enforce and comply with the order of this Court and thus, the respondents have disobeyed the order passed by this Court. This has given rise to the Writ Petitioner filing this petition under Contempt of Courts Act.

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Pending the above Contempt Petition, some of the alleged encroachers, to whom notices were issued as per the order of this Court filed a Miscellaneous Petition (M.P.No.1/2013 in W.P.8367/2011) before this Court. When the third respondent/Tahsildar,Kancheepuram issued notices, this M.P., is filed on the ground that the order passed by this Court on 01.08.2011 was without any notice to these occupants, who were not impleaded at all in Writ Petition No.8367 of 2011. Alleging that the writ petitioner (M/s.Water Resources and Environmental Protection Welfare Society, Selaiyur) had obtained the order behind their back, these occupants/petitioners in the M.P., seek recalling of the order passed by this Court on 01.08.2011.

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The petitioners in M.P.No.1 of 2013 in W.P.No.8367 of 2011 have alleged that the Statutory Authorities have taken action for evicting them ignoring the necessary material facts and supporting documents filed to show that they are not encroachers and that there are various Government Orders issued by the authorities, which go in favour of the petitioners to regularise their stay therein. In the circumstances, the alleged encroachers sought for recalling of the order passed on 01.08.2011 in W.P.No.8367 of 2011.

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Leaving this aside, there is yet another writ petition filed by the occupants before this Court in W.P.19773/2013, which came to be disposed of on 18.07.2013. The prayer in the writ petition was for issue of writ of mandamus to forbear the respondents from dispossessing the petitioners from the property land and thatched shed situated at the disputed site.

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In paragraph No. 4 of the order in W.P.19773/2013, a Division Bench of this Court pointed out that the petitioners had submitted the representation to the authorities on 10.05.2013 and the District Collector, Kancheepuram, by order dated 27.06.2013 had rejected the contentions raised by the petitioners by taking note of their representation; following the observations of the Hon'ble Supreme Court in S.L.P.(Civil) No.3109 of 2011, dated 28.01.2011 the

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https://hcservices.ecourts.gov.in/hcservices/

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authorities ordered eviction of the petitioners. Aggrieved by this, the petitioners have also preferred a Revision Petition under Section 10-A (1)(c) of the Tamil Nadu Land Encroachment Act, 1905 before the first respondent/Secretary to Government, Revenue Department. Having regard to the same, this Court disposed of the writ petition directing the second respondent viz., The Principal Secretary/Commissioner of Land Administration to consider the said Revision Petition along with the stay petition filed by the petitioners, after affording opportunity to the petitioners and pass orders in accordance with law within a period of four weeks from the date of receipt of the copy of the order. Till the Revision Petition was disposed of, statusquo was directed to be maintained.

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Evidently, the second respondent-The Principal Secretary/Commissioner of Land Administration had taken up the Revision for hearing. However, once again, the said writ petitioners have approached this Court by filing W.P.No.25997 of 2013, wherein, they sought for writ of mandamus, to forbear the second respondent from proceeding further in the Revision Petition, till the disposal of the M.P.1 of 2013 in W.P.8367 of 2011, wherein, these petitioners have sought for re-calling of the order.

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A reading of the affidavit filed before this Court shows that the Revision Petition was to be taken up for hearing on 18.09.2013. We are now informed by learned Senior Counsel appearing for the writ petitioners that the matter stood adjourned. We have no information as to the cause for this adjournment as well as to the next date of hearing.

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As far as the merits of the Contempt Petition is concerned, the grievance of the contempt petitioner is that, when this Court directed the authorities to evict the encroachers by taking necessary action, there has been a serious attempt to convert the nature of the water body itself, which was contrary to the spirit of the order passed on 01.08.2011 in W.P.No.8367 of 2011. In this connection, learned counsel for the contempt petitioner placed reliance on the decisions in the case of Noorali Babul Tanewala Vs. K.M.M.Shetty and others reported in AIR 1990 SC 464, in the case of State of U.P., Vs.Shri.Brahm Datt Sharma and another reported in AIR 1987 SC 943(1), in the case of Director of Education, Uttaranchal and others Vs. Ved Prakash Joshi and others reported in (2005)6 SCC 98.

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As far as the merits of the contention on Contempt as well as the jurisdiction of this Court in taking Miscellaneous Petition filed to recall the order passed by this Court is concerned, we first make it clear that in the order passed on 01.08.2011 in W.P.No.8367 of 2011, this Court clearly gave directions to the authorities concerned to take steps necessary, to enquire into the allegation of the encroachment and for removal of the encroachment, if any, in the water body, after giving notice to the encroachers.

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https://hcservices.ecourts.gov.in/hcservices/

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Admittedly, action has been taken in this regard, which has given rise to the filing of the writ petition by the persons against whom the allegation of encroachment was made as well the Revision before the Commissioner. These facts are not disputed by the learned counsel appearing for the contempt petitioner. On the face of such admitted facts, we do not find any justifiable ground to order contempt in this case. Nevertheless, learned counsel appearing for the contempt petitioner submitted that the authorities have not taken steps to evict the encroachers in an effective manner. We again do not find any substance in this for the reason that eviction of an alleged encroachment could only through the procedure laid down under the Act, after giving due notice to the encroachers and this Court already directed that the authorities must enquire into the allegations and then take action in accordance with law after giving opportunity of hearing to the alleged encroachers. In the face of the action thus already taken, we do not think any latches could be read with the conduct of the authorities as has been alleged by the petitioner in the Contempt Petition.

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As regards the reliance placed by the petitioner in the Contempt Petition on the decision reported in AIR 1990 SC 464 in the case of Noorali Babul Tanewala Vs. K.M.M.Shetty and others, the said decision does not help the petitioner in any manner. It stands on a different footing and distinguishable to the facts herein. There the Apex Court pointed out that when the party had given an undertaking before the Court to vacate the premises, but continued to be in possession even after such an undertaking, this gave rise to the contempt proceedings before the Supreme Court. Thus, the Supreme Court pointed out that in the light of the finding that there was breach of undertaking by the tenant, there was a clear case of contempt, consequently, the Apex Court held that the tenant was guilt of committing contempt and liable to be convicted.

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As regards the decision reported in AIR 1987 SC 943(1) in the case of State of U.P., Vs.Shri.Brahm Datt Sharma and another is concerned, the Apex Court therein pointed out that once the order pronounced in the writ petition and disposed of finally, it is not open to the Court to reopen the proceedings by means of a Miscellaneous Application. Thus, there is a clear proposition of law laid down, which, at best, would govern the M.P. filed by the affected parties to recall the order passed in Writ Petition. Thus, once this Court has passed an order directing the authorities to give opportunity to the aggrieved party, the question of anybody coming before this Court complaining that they are seriously prejudiced would not arise.

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Thus, as far as the petitioners seeking the reopening of the case is concerned, the Apex Court judgment would squarely cover the issue more so in the context of the fact that these petitioners have

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also gone before the statutory authority by way of Revision.

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As far as third judgment in the case of Director of Education, Uttaranchal and others Vs. Ved Prakash Joshi and others reported in (2005)6 SCC 98 is concerned, the law declared by the Apex Court directly answers the contention raised in the contempt petition. The court exercising contempt jurisdiction cannot take upon itself the power to decide the original proceedings in a manner not dealt with by the court passing the judgment or order; the Apex Court pointed out right or wrong the order has to be obeyed; flouting an order passed by this Court by the parties, who are directed to do so could cause contempt.

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Thus, when once the authorities had taken action as directed by this Court, we do not find any justifiable ground to reappraise the order passed by this Court by giving direction to the authorities to make enquiry as to the alleged acts alleged to have been committed or likely to be committed by anyone.

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In the background of the law declared by the Apex Court and on facts, we do not find any justifiable ground to order contempt. Accordingly, the Contempt Petition stands dismissed.

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For the reasons that we have already stated and following the decision in the case of State of U.P., Vs.Shri.Brahm Datt Sharma and another reported in AIR 1987 SC 943(1), M.P.No.1 of 2013 in W.P.No.8367 of 2011 also stands rejected.

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As far as Writ Petition filed in W.P.No.25977 of 2013 is concerned, since the Revision Petition was already listed for hearing yesterday and adjourned, we direct the Principal Secretary/Commissioner of Land Administration to take up the Revision Petition immediately for hearing and dispose of the same within a period of two weeks from today. It is hereby made clear that the writ petitioners in W.P.No.25977 of 2013 shall extend their cooperation in the hearing of the case within the period stipulated above.

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In the result, Contempt Petition No.336 of 2013 stands dismissed.

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Writ Petition No.25977 of 2013 is disposed of on the above terms. No costs.

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https://hcservices.ecourts.gov.in/hcservices/

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M.P.No.1/2013 in W.P.No.8367 of 2011, petition to recall the order passed in W.P.No.8367 of 2011 stands dismissed.

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Sd/Asst. Registrar.

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/true copy/

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Sub Asst. Registrar.
nvsri
To
1.The Secretary to Government
State of Tamil Nadu
Revenue Department
Fort St.George
Chennai-600 009
2.The Principal Secretary / Commissioner of
Land Administration
Chepauk
Chennai-600 005
3.The District Collector
Kancheepuram District
Kancheepuram
4.The Thasildhar
Tambaram Taluk
Tambaram
Chennai
5.The Commissioner
Tambaram Municipality
Tambaram, Chennai
2 CC To Mr.M.N.S.Mohamed Habeeb Raja, Advocate SR NO. 49653, 49652
1 CC To Mr.P.Srinivas, Advocate SR NO.49522
Writ Petition No.25977 of 2013
kji[co]
Gp/30.9

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https://hcservices.ecourts.gov.in/hcservices/

R.Santhamani v. the State of Tamilnadu

Case brief

What is this about?

What did the court decide?

R.Santhamani v. the State of Tamilnadu

Case brief

What is this about?

What did the court decide?

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