Madras High Court
Sivakumar Spinning Mills Private ... vs R.K.Kulshrestha on 21 October, 2021
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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
https://www.mhc.tn.gov.in/judis
