Madras High Court
Pattali Makkal Katchi vs The Additional Chief Secretary / on 23 September, 2021
W.P.No.4072 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.09.2021
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.4072 of 2014
and
M.P.No.1 of 2014
PATTALI MAKKAL KATCHI
Rep. it's President,
G.K.Mani
No.63, North Muthu Naicken Street,
Teynampet,
Chennai - 600 018. ... Petitioner
Vs
1.The Additional Chief Secretary /
Commissioner of Revenue Administration
Revenue Department - Administration Disaster
Management and Mitigation Department,
Ezhilagam, Chepauk,
Chennai - 600 005.
2.The General Manager,
Metropolitan Transport Corporation,
(Chennai) Limited,
Pallavan House, Chennai - 600 002. ...Respondents
1/35
http://www.judis.nic.in
W.P.No.4072 of 2014
Prayer : Petition filed Under Article 226 of the Constitution of India praying
for issuance of writ of Certiorari calling for the records relating to the
proceedings in SR No.943/MTC/KPM/2013 dated 17.06.2013 of the 1st
respondent herein and quash the same.
For Petitioner : Mr.K.Balu
For 1st Respondent : Mr.K.M.D.Muhilan
Government Advocate
For 2nd Respondent : Mr.M.Chidambaram
ORDER
The writ on hand has been instituted questioning the notice of hearing
dated 17.06.2013, directing the petitioner to appear for an enquiry either in
person or through counsel and file written statement in respect of the
allegation being under the provisions of the Tamil Nadu Property
(Prevention of Damage and Loss) Act, 1992 (hereinafter referred to as ‘the
Act’).
2. The impugned notice states that an application under the Act
claiming compensation from the petitioner for the revenue loss caused due to
Non Operation and Partial Operation of the Metropolitan Transport
http://www.judis.nic.in
W.P.No.4072 of 2014
Corporation (Chennai) buses in Chennai, Kancheepuram and Thiruvallur
District owned by the Metropolitan Transport Corporation (Chennai)
Limited, during the agitation held by the petitioner party members for the
period from 25.04.2013 to 19.05.2013 is preferred. The said application is
posted for the appearance of the petitioner on 02.07.2013 in the Chambers
of the Additional Chief Secretary/Commissioner of Revenue Administration,
Ezhilagam, Chepauk, Chennai – 600 005. The petitioner has chosen to file a
writ petition instead of defending their case before the first respondent
Additional Chief Secretary to Government.
3. The learned counsel for the petitioner mainly contended that the
petitioner is not responsible for any damages or committed any such offence
of causing damage to the public properties. On political considerations, the
impugned notice has been issued with an ulterior motive. Thus, the
impugned notice is untenable and liable to be set aside.
4. On 25.04.2013, Pattali Makkal Katchi and Vanniar Sangam on
behalf of Dr.S.Ramadoss had conducted "Chithirai Thiruvizha" at
http://www.judis.nic.in
W.P.No.4072 of 2014
Mamallapuram. The Pattali Makkal Katchi party members who came to
participate in the same festival are alleged to have entered into a wordy
quarrel at Kadayam Theru Colony Bus stop near Marakanam and as a result
of the same, damage to the property had occurred. For numerous hours,
traffic was affected in East Coast Road and that pursuant to the said
violence, the sculptors and statutes of political leaders are alleged to have
been damaged. The party workers are said to have violated the conditions
imposed by the Police and hence, the party members were arrested by the
Police. As a consequence to the same, on 30.04.2013, demonstrations were
contemplated to be held without the permission of the Police at Krishnagiri
and hence, Dr.S.Ramadoss and the President of the petitioner Party among
500 members were arrested and on account of the same, members of the
Party and Vanniar Sangam had indulged in road roko, pelting of stones on
vehicles, felling of trees, damaging public property. On account of the same,
a tense situation prevailed in Kancheepuram, Thiruvallur and Chennai
Districts from 25.04.2013 to 19.05.2013 and the public movements were
being affected. The normal life of the public at large was affected.
http://www.judis.nic.in
W.P.No.4072 of 2014
5. The broad allegations against the petitioner are extracted in the
affidavit filed in support of the writ petition itself. With reference to the said
allegations, the learned counsel for the petitioner contended that all such
allegations are false and frivolous. The petitioner's members had not
involved in commission of any offence nor caused any damage to the public
properties. No doubt, a tensed situation was created during the particular
period and the MTC buses could not be operated during the appropriate
time. However, the respondents cannot blame the petitioner for such
incidents. The impugned notice of hearing merely states that due to non-
operation of the Transport Corporation Buses at the instance of the
petitioner party, monetary loss sustained by the Transport Corporations are
to be compensated.
6. The learned counsel for the petitioner states that the very initiation
of proceedings under the Act is untenable. The question of recovery of
compensation would arise only when an offence punishable has been
committed during any procession, meeting, agitation, demonstration or any
other activity organised. Section 2(3) of the Act defines, a political party
http://www.judis.nic.in
W.P.No.4072 of 2014
recognised by the Election Commission under the Election Symbols
(Reservation and Allotment) Order, 1968. So, Pattali Makkal Katchi has
been recognised as Political Party under the said order in the year 2009.
Therefore, the petitioner would not come within the purview of Section 2(3)
of the said Act. Thus, the allegations levelled against the petitioner Party in
the application of the second respondent would not attract Sections 9 and 10
of the Act. Thus, the initiation of proceeding itself is without jurisdiction.
Criminal offences were registered against the members of the Petitioner /
Political party. However, those cases are ended with an order of acquittal.
Thus, there is no cause for claiming compensation from the Petitioner /
Political party.
7. The learned counsel for the petitioner reiterated that in case of
commission of any punishable offence, if committed, and public properties
are damaged, then alone, the liability can be fixed against the Political party.
But, in the present case, there was no commission of offence or conviction in
respect of the criminal cases registered. Thus, there is no prima facie case or
material against the petitioner for invoking the provisions of the Act. It is
http://www.judis.nic.in
W.P.No.4072 of 2014
contended on behalf of the petitioners that the damage or loss caused to the
property should be referable to the “mischief” under Section 3 or mischief
by fire or explosive substance under Section 4 or any damage that is caused
due to pelting of stones, bricks, etc., under Section 5 of the Act. Thus, only if
any such mischief within the definition of the Act is established, then alone,
the question of fixing liability would arise and therefore, claiming of
compensation is misconceived and beyond the scope of the provisions of the
Act.
8.The learned counsel for the petitioner proceeded by elaborating the
scope of Section 9, 11(2) of the Act. It is contended that when the initiation
of action against the petitioner prima facie not in accordance with the
provisions of the Act. Thus, the petitioner need not appear before the
competent authority as the authority lacks jurisdiction.
9. Section 2(4) of the Act defines the word "Property" means any
property, movable or immovable or machinery owned by, or in possession
http://www.judis.nic.in
W.P.No.4072 of 2014
of, or under the control of any person including the Central Government or
the State Government etc. However, in the present case, perusal of the notice
would reveal that the application itself is filed claiming compensation from
the petitioner only for the revenue loss caused due to non operation and
partial operation of Metropolitan Transport Corporation (Chennai) buses in
Chennai, Kancheepuram and Thiruvallur Districts. Therefore, even the
notice states that the notice did not contain any such allegation of
commission of an act of mischief within the meaning of the Act. Thus, the
notice itself is without jurisdiction and liable to be set aside.
10. The learned Government Advocate appearing on behalf of the first
respondent disputed the contentions raised on behalf of the petitioner in
entirety. It is contended that the provisions of the Act has been erroneously
interpreted on behalf of the petitioner. Under Section 3 of the Act
punishment for committing mischief in respect of property whoever commits
mischief. Therefore, irrespective of the fact that a person is a political party
or group of persons or otherwise, actions are permissible under the
provisions of the Act. It is not as if the damage is caused only by a political
http://www.judis.nic.in
W.P.No.4072 of 2014
party, actions are to be initiated under the provisions of the Act. But,
whoever commits mischief or damage or loss to the property, the actions can
be initiated under the provisions of the Act. Thus, the very contention raised
that the petitioner is not amenable to the act during the relevant point of time
is a wrong interpretation offered and therefore, the said contention is liable
to be rejected.
11. The learned Government Advocate on behalf of the first
respondent further has stated that the word ‘mischief’ is defined in clear
terms. Further, damage or loss of property are also the grounds for claiming
compensation. The damage or loss are distinguishable, if any person causes
damage to the property or financial losses to the State Government or
Central Government as defined under Section 2(4) of the Act, then,
compensation shall be claimed by filing an application. However, the writ
petitioner claims that they have not committed any mischief, but the present
writ petition is filed challenging the notice of hearing, calling upon the
petitioner to submit their explanations in respect of certain allegations. It is
for the authorities to form a final opinion for proceeding in the matter by
http://www.judis.nic.in
W.P.No.4072 of 2014
invoking the provisions of the Act. In view of the fact that the writ petition is
filed challenging the very notice issued, the same is not maintainable and
liable to be rejected.
12. The learned counsel appearing on behalf of the second respondent
Metropolitan Transport Corporation opposed the contentions raised on
behalf of the petitioner by stating that 58 buses were actually damaged. 12
buses at Chennai, 26 buses at Thiruvallur and remaining buses at
Kancheepuram were damaged during the relevant point of time by the
members of the petitioner political Party. The material evidences are
available with the second respondent and the second respondent is ready to
establish such damage extensively caused at the instance of the petitioner
party members. The loss as per assessment is running to several crores. The
Metropolitan Transport Corporation buses are public properties and
therefore, there is no infirmity in respect of the notice issued to the writ
petitioner. This apart, the petitioner has to defend their case in the manner
known to law. Contrarily, the writ petition against such a notice of hearing is
not maintainable and liable to be dismissed.
http://www.judis.nic.in
W.P.No.4072 of 2014
13. Considering the arguments as advanced by the respective
learned counsels appearing on behalf of the parties to the lis, issues to
be considered by this Court are, whether a writ against a notice of
hearing is entertainable or not? If so, under what circumstances such
writ is entertainable? and the scope of the provisions of the Act viz., the
Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992 and
its applicability.
14. No writ against a notice is entertainable in a routine manner. A
writ against a notice of enquiry is entertainable only on limited grounds. If a
notice has been issued by an incompetent authority having no jurisdiction
directly hitting the provisions of the Act, then a writ is entertainable. If an
allegation of malafides are established, then also a writ may be entertained,
considering the nature of the allegations and the manner in which it is
established. Even in case of raising an allegation of malafides against the
competent authority, such authority must be impleaded as party respondent
in a personal capacity in the writ proceedings. In the absence of any one of
http://www.judis.nic.in
W.P.No.4072 of 2014
the above grounds, no writ can be entertained against a notice of enquiry
and thus, the petitioner is expected to submit his explanations / objections
and the documents, if any, in order to defend their case and to prove their
innocence or otherwise.
15. Let us examine the impugned notice of hearing challenged in the
present writ petition. The notice dated 17.06.2013 states that an application
under the Act 1992 claiming compensation from the petitioner for the
revenue loss caused due to non operation and partial operation of the MTC
buses in Kancheepuram, Chennai and Tiruvallur is preferred. The
application is posted for the appearance and for submission of reply in the
Chambers of the first respondent. This being the nature of the impugned
notice of hearing, this Court is of the opinion that the petitioner ought to
have submitted its reply/objections before the first respondent establishing
their case with relevant documents and evidences.
16. The learned counsel for the petitioner raised the point of
jurisdiction with reference to the provisions of the Act. In this regard, it is
http://www.judis.nic.in
W.P.No.4072 of 2014
necessary to consider the scope of the provisions of the Act. The statement
of objects and reasons of the Act enumerates that widespread damages for
the public property are being caused during procession, assembly, meeting,
agitation, demonstration or other activities organised by political parties or
communal, language or ethnic groups. It has been decided to prevent such
widespread damages to public property by enacting a comprehensive
legislation providing for punishments of the persons who actually cause
damage or loss to the public property and to make the political parties or
communal, language or ethnic groups which organised such procession,
assembly, meeting, agitation, demonstration or other activites liable to pay
compensation in respect of damage or loss caused to any public property.
With this object, a comprehensive legislation was enacted i.e., Tamil Nadu
Act 59 of 1992. It was enacted to prevent such widespread damages to
public property.
17. Keeping in mind the statement of objects and reasons, the
provisions of the Act are to be interpreted constructively, so as to ensure that
the purpose and objects are achieved.
http://www.judis.nic.in
W.P.No.4072 of 2014
18. Section 2(2) defines "mischief” shall have the same meaning as in
Section 425 of the Indian Penal Code (in short ‘IPC’). It is made clear that
the definition provided under the Indian Penal Code for the word ‘mischief’
is to be taken into consideration for the purpose of application.
19. Section 2(4) defines ‘property’ means any property movable or
immovable or machinery owned by, or in possession of, or under the
control of any person including]
(a) the Central Government; or,
(b) the State Government; or,
(c) any local authority; or,
(d) the Tamil Nadu State Electricity Board; or,
(e) any University in this State; or
(f) any co-operative society including a land development
bank registered or deemed to be registered under the
Tamil Nadu Co - operative Societies Act, 1983; or
(g) any corporate body constituted under any Act passed by
Parliament or the Legislative Assembly of this State; or
(h) any other corporation owned or controlled by the Central
Government or the State Government; or
[(i) any institution concern or undertaking; or
(j) any company."
20. Section 3 provides for 'Punishment for committing mischief in
http://www.judis.nic.in
W.P.No.4072 of 2014
respect of [property]', which reads as under:
"Whoever,-
(i) Commits mischief by doing any act in respect of any
{Substituted for th word "public property" by the Tamil Nadu
Public Porperty (Prevention of Damage and Loss) Act, 1994
(Tamil Nadu Act 46 of 1994} [property] and thereby causes
damage or loss to such [property] to the amount of one
hundred rupees or upwards; or
(ii) commits mischief by doing any act which causes or which
he knows to be likely to cause a diminution of the supply of
water to the public or to any person for any purpose or an
inundation of, or obstruction to, any public drainage, or
(iii) commits mischief by doing any act which renders any
public road, bridge, navigable channel, natural or artificial
impassable or less safe for traveling or conveying property,
shall be punished with imprisonment for a term which shall
not be less than one year but which may extend to five years
and with fine:
Provided that the Court may, for any adequate and special
reason to be mentioned in the judgment, impose a sentence of
imprisonment for a term of less than one year.
21. Section 4 deals with ‘Mischief causing damage to [property] by
http://www.judis.nic.in
W.P.No.4072 of 2014
fire or explosive substance'. Section 5 provides ‘Punishment for throwing
stones, bricks, etc., upon persons travelling in motor vehicles’. Section 6 is a
‘Special Provision regarding bail'. Section 7 relates to ‘Order to pay
compensation’. Section 8 is ‘Power to try Offences’ i.e. a Chief Metropolitan
Magistrate or a Court of Session is competent. Section 9 denotes ‘Liability to
pay Compensation in certain cases’. Section 10 enumerates ‘Claim for
compensation’. Section 11 is the ‘Authority to decide compensation’.
Section 12 is the ‘Recovery of compensation as arrear of land revenue’.
22. With reference to the above provisions of the Act, it is to be
considered, whether the damage or loss caused due to such acts, are falling
within the ambit of the provisions of the Act for the purpose of grant of
compensation or not?
23. Section 2(2) “mischief”, as defined under Section 425 IPC
enumerates that whoever, with intent to cause, or knowing that he is likely to
cause,wrongful loss or damage to the public or to any person, causes the
destruction of any property, or any such change in any property or in the
http://www.judis.nic.in
W.P.No.4072 of 2014
situation thereof as destroys or diminishes its value or utility, or affects it
injuriously, commits “mischief”. Explanation 1 to Section 425 IPC stipulates
that ‘It is not essential to the offence of mischief that the offender should
intend to cause loss or damage to the property injured or destroyed. It is
sufficient if he intends to cause, or knows that he is likely to cause, wrongful
loss or damage to any person by injuring any property, whether it belongs to
that person or not. Therefore, the express mention of ‘damage’ in the Section
is indicative of the fact that the purview of the offence of ‘mischief’ is not
intended to be confined only to cases of ‘wrongful loss’, but also to engulf
within it all such cases of damages by unlawful means.
24. Keeping in mind the definition provided under Section 2(2) and
Section 3 of the Tamil Nadu Property (Prevention of Damage and Loss) Act,
1992, whoever commits mischief by doing any act in respect of any property
and thereby causes damage or loss to such property, the word ‘damage or
loss’ cannot be confined only with reference to the causing of physical
damage to the movable property. The loss independently stated in the Act
shall include “financial loss”, if any caused on account of such act of
http://www.judis.nic.in
W.P.No.4072 of 2014
mischief falling within the definition of the Act. The “Property” is defined
under Section 2(4) of the Act as stated above. Thus, the movement of such
movable properties, which is intended for public usage and benefit is
prevented or restrained from peaceful moving, the said Act would also fall
under the definition of “mischief” as the movement was restrained in an
illegal manner, which is a mischief within the definition of the Act. In the
event of “Financial loss” on account of such restraint or prevention of the
movement of the movable properties belongs to the public, then also,
compensation is recoverable under the provisions of the Act. Thus, direct
losses by causing visible damage to the property and the indirect financial
losses caused on account of restraining the movable public properties would
also fall under the definition of michief and thus, such acts are falling within
the ambit of the provisions of the Act.
25. The statement of objects and reasons of the enactment would
emphasize that damage or loss caused to the public property by the political
parties or communal, language or ethnic groups must be compensated since
such losses caused are against the interest of the public and against the
http://www.judis.nic.in
W.P.No.4072 of 2014
public properties. Thus, the Act is to be interpreted by creating the nexus
between the purpose and object of the Act and the provisions enumerated.
Any other narrow interpretation or straight formula understanding would
undoubtedly defeat the purpose and object of the Act.
26. Section 3 of the Act is crystal clear and the language adopted is
“whoever commits mischief” by doing any act in respect of any property and
thereby causes damage or loss. The above phraseology adopted in the
Statute must be understood, with reference to its context. “Whoever,
commits any act in respect of any property” means, all the acts, which all are
falling under the definition of mischief causes damage or action is actionable
under the Act and compensation shall be granted. In this regard, any act
causing physical damage to the public property or financial loss to the
public Exchequer by preventing or restraining the public servants or
competent authorities for peaceful providing of services to the public at large
and to the benefit of the public and during such process, if financial losses
are caused, then all such persons are liable to pay compensation for such
public losses occurred to the State Exchequer. Section 3 connotes that
http://www.judis.nic.in
W.P.No.4072 of 2014
thereby causes damage or loss. It is not restricted with the word damage
alone. The provision proceeds by stating “damage or loss”. Thus, it is to be
construed that any act is actionable either in case of damage or in case of
loss. Thus, the word loss to be independently taken into consideration for
the purpose of initiation of action under the provisions of the Act. Thus, the
damage if committed directly to the property physically and the loss would
include all such consequential losses including the financial losses due to
such act, which all are falling under the definition of “mischief” and all such
acts are actionable under the provisions of the Act. Thus, the word 'damage
or loss' as contemplated is to be understood independently in both the cases,
where damage and loss is caused or damage alone is caused or loss alone is
caused. In all such circumstances, initiation of proceedings for fixing liability
and award compensation is permissible.
27. Admittedly, there are serious allegations of damage and loss of
public property. However, the present writ petition is filed, challenging the
notice of hearing. Thus, this Court is not expected to adjudicate the merits of
the case. Regarding the allegations set out against the petitioner / Political
http://www.judis.nic.in
W.P.No.4072 of 2014
party, findings are to be given only after conducting an enquiry by the
competent authority with reference to the documents and evidences made
available.
28. The contention of the petitioner that criminal case ended with an
order of acquittal, is of no avail to them. Mere acquittal in a criminal case
cannot be a bar to proceed under the provisions of the Act to recover the
compensation for damages or losses. The Act contemplates independent
action for the purpose of recovering the damages or losses caused to the
properties as defined under Section 2(4) of the Act. In this regard, Section
14 of the Act denotes that the provisions of this Act shall be in addition to,
and not in derogation of, any other law for the time being in force and
nothing contained herein shall exempt any person from any proceeding by
way of investigation or otherwise which might, apart from this Act, be
instituted against him. Thus, any criminal proceedings initiated against such
offenders are no way connected with the actions to be initiated for grant of
compensation for damages or losses under the provisions of the Act.
http://www.judis.nic.in
W.P.No.4072 of 2014
29. To establish a criminal offence under the Indian Penal Code
before the competent Court of law, high standard of proof is required.
However, no such high Standard of proof is required in such proceedings,
where the assessment of damages or losses are to be calculated. The
standard of proof required to convict a person in a criminal case can no way
be compared with the cases, where compensations are awarded for the
damages and losses. Thus, the yardsticks to be adopted in criminal trial
cannot be adopted in the enquiry to be conducted by the competent
authorities for the purpose of fixing liability and award of compensation for
damages or losses under the provisions of this Act. Further, the saving
clause unambiguously stipulates that the actions under the Act is
independent. The purpose and object of the Act is to ensure that the public
properties are protected and in the event of causing any damages or losses,
compensation is recoverable from such persons for such act of mischief, if
established. Thus, the contention in this regard raised on behalf of the
petitioner is rejected.
30. The petitioner relying on Section 9, contended that only if a
http://www.judis.nic.in
W.P.No.4072 of 2014
commission of offence is proved, action is permissible and not otherwise.
Such an argument deserves no merit consideration, in view of the fact that
Section 9 stipulates 'liability to pay compensation in certain cases'. Thus, if
liability is fixed, thereafter Section 9 would come into operation. Further, the
provisions State that, where an offence punishable under this Act has been
committed. Thus, the competent authority after conducting an enquiry, if
arrived a conclusion that an offence within the provisions of the Act is
committed, then he is empowered to fix liability under Section 9. Thus,
invoking Section 9 would arise only after completion of enquiry and at the
time of fixing liability. Section 3 of the Act states that, whoever commits
mischief thereby causes damage or loss is liable to pay compensation.
Section 9 further elaborates by stating that, where an offence punishable
under this Act, committed through any procession, assembly, meeting,
agitation, demonstration or any other activity organised by a political party
or communal, language or ethnic group, it shall be presumed, that the
offence, has also been committed by such political party or communal,
language or ethnic group and such political party or communal, language or
ethnic group shall be liable to pay compensation for damage or loss caused
http://www.judis.nic.in
W.P.No.4072 of 2014
to any property.
31. Thus, the liability is to be fixed only after conducting full fledged
enquiry. But the present writ petition is filed, challenging the notice of
hearing and therefore, this Court cannot offer any finding on merits or on
factual aspects. The provisions are interpreted for the purpose of dealing
with such cases in the manner known to law. It is the duty of the
Constitutional Courts to interpret the provisions of the Act in order to
achieve its purpose and object and to ensure the constitutional principles are
achieved.
32. In the present writ petition, the Metropolitan Transport Corporation
contended that several buses were severely damaged, financial losses were
also caused by preventing the buses from moving for providing public
services. There were losses to the TASMAC shops also as the damage or
loss is caused towards TASMAC. However, the allegations are to be proved
at the time of conducting enquiry and only thereafter, the liability is to be
fixed and compensation are to be awarded. This being the scope of the Act,
http://www.judis.nic.in
W.P.No.4072 of 2014
this Court is of the considered opinion that facts are to be adjudicated
independently by the competent authority. With reference to the
interpretations, the authority competent has to apply the facts along with the
provisions of the Act and its interpretations and accordingly, take a decision
on merits and in accordance with law.
33. The petitioner has got a right to establish their case by availing the
opportunities to be provided by the competent authorities. They are at liberty
to submit all their defense statements, objections, documents, evidences, for
the purpose of establishing their case in the manner known to law.
34. Ordinary citizen of this great Nation are mostly voiceless.
Constitutional Courts are the voices for those voiceless majority citizen for
the purpose of protecting their fundamental and the Constitutional rights.
Looking back, this great Nation witnessed series of agitations,
demonstrations, violations, affecting the public at large. In all such
circumstances, ordinary voiceless citizen are forced to tolerate such
illegalities committed by political parties or communal, language or ethnic
http://www.judis.nic.in
W.P.No.4072 of 2014
groups. The majority right thinking citizen are the victims and their normal
life are being affected to such an extent. Many Poor people lost their
properties, and huge damages were caused to the public properties.
Therefore, the Government of the day is expected to initiate quick and
effective actions in such circumstances, where any mischief is committed
and damage or loss is caused to the properties.
35. The voiceless majority citizen are tolerable even while their
fundamental rights are violated. They are forced to suffer, which results in
an unconstitutionality, for which, the State is accountable and bound to
initiate action against all such persons, who are responsible for such
violations of fundamental rights of the common citizen. While conducting
procession, free access to the schools, offices are prevented. Some occasions,
it is absolutely prevented. Our great Nation has witnessed on several
occasions, people could not able to reach their offices. The Ambulance
services were unable to be operated, result in death of the patients, who
required urgent medical attention. People are almost frustrated with such
illegal activities of such groups and undoubtedly, the right of a common man
http://www.judis.nic.in
W.P.No.4072 of 2014
to lead a peaceful life, which is enunciated under the Constitution must be
ensured by the Government of the day, irrespective of the political party.
36. The ambitions of the political party cannot be achieved by
misleading the people or by causing infringement of the rights of the citizen.
Members of the political party are thriving hard to come into power.
Therefore, the conduct, integrity and behaviour of such members of the
political party are of paramount importance for the purpose of running an
effective and efficient Government, which is the mandate under the Indian
Constitution. It is to be reminded of that no fundamental right is absolute
and every such right is subject to restrictions. Under Article 51-A of the
Indian Constitution, it shall be the duty of every citizen of India to abide by
the Constitution and respect its ideals and institutions, the National Flag and
the National Anthem. It is the duty to uphold and protect the sovereignty,
unity and integrity of India. Duty to defend the country and render national
service when called upon to do so is also an important duty. More
importantly, citizen has the duty to promote harmony and the spirit of
common brotherhood amongst all the people of India transcending religious,
http://www.judis.nic.in
W.P.No.4072 of 2014
linguistic and regional or sectional diversities; to renounce practices
derogatory to the dignity of women.
37. In spite of the duties of citizen enumerated in Indian Constitution,
the Political parties mostly glorifying their rights and not reminding their
duties. This results in commission of offences and unconstitutionalities. In
every sphere, when a right is claimed, the duty is to be reminded of. Rights
and duties are inseparable under the Indian Constitution. Any citizen
claiming any right, must fulfill his duty first, then alone, the right will have
sense in the constitutional perspectives. Agitations, processions, assembly,
demonstrations, and what not, are being conducted by Political parties or
communal, language or ethnic groups, claiming their rights. Under those
circumstances, it is the duty of the leaders to remind their duties towards the
society and failure would result in action. The political parties of communal,
language and ethnic groups and its leaders are duty bound to ensure that the
cadres of their respective party or group maintain discipline, while
performing such agitations, demonstrations etc., by respecting the public
rights of every citizen.
http://www.judis.nic.in
W.P.No.4072 of 2014
38. In view of serious infringement of rights in the society, the Act was
enacted. Thus, the Act must be effectively implemented by the State
machinery to ensure that public rights are protected and the tax payers'
money is preserved and utilized for public welfare. The public properties are
secured from the tax payers' money. Thus, the Government is accountable
and answerable for such damage or loss, if any committed by an act of any
person.
39. Though the Act was enacted in the year 1992, the effective
implementation of the Act is not visible in the State of Tamil Nadu. 29 years
lapsed, it is not made clear in how many cases, compensations are granted,
despite the fact that damages or losses are established. Thus, this Court is of
an opinion, atleast hereafter, the Tamil Nadu Property (Prevention of
Damage and Loss) Act, 1992, shall be implemented scrupulously by the
authorities in order to protect the public properties.
40. The possible reason for slow implementation of the Act is that a
http://www.judis.nic.in
W.P.No.4072 of 2014
particular political party or group during commission of such offensive acts
may be in alliance with the ruling party of the Central or State Governments.
On some occasions, there may be some consensus between the groups of the
communal, language or ethnic groups. The consensus, collusion,
understanding, alliance, all must stand beyond the scope of the provisions of
the Act as the Act is for the welfare of the common man and to protect the
Constitutional rights of the citizen of this Great Nation. Thus, ineffective or
non-implementation of the provisions of this Act also result in denial of
fundamental right to the citizen and property damaged or loss caused is the
taxpayers' money. In such an event, the Government would be committing
an unconstitutionality by not initiating actions for recovery of compensation.
41. The executives and their independent functioning are ensured
under the Constitution of India. Thus, if such offences are committed by the
members of the Political party, which is the Ruling party of the Central or
State Governments, then the Executives are bound to act independently for
the purpose of invoking the provisions of the Act. The independency of the
http://www.judis.nic.in
W.P.No.4072 of 2014
executives are protected under the Constitution of India. In many
circumstances, the non-understanding of the independency of the executives
result in collusion and denial of right to the public at large. Thus, executive
independence and performance of their lawful duties protected under the
Constitution must be exercised by the competent authorities. In such
circumstances, where the political parties or communal, language or ethnic
grounds are in consensus or in understanding or in alliance or otherwise.
42. In respect of the case on hand, the writ petitioner has not
established lack of jurisdiction or otherwise for the purpose of entertaining
the writ petition. Admittedly, the notice of hearing is under challenge. Thus,
the petitioner is at liberty to submit their objections, explanations,
documents, evidences, etc., for the purpose of defending their case by
availing the opportunities to be provided.
43. The present writ petition is pending for about 6 years. Thus, further
delay would cause prejudice to either of the parties. In these circumstances,
it is necessary that the enquiry must be conducted without any further delay.
http://www.judis.nic.in
W.P.No.4072 of 2014
Accordingly, the following orders are passed:
(1) The relief as such sought for in the present writ petition stands
rejected.
(2) The first respondent is directed to continue the enquiry by
following the procedures as contemplated and by affording opportunity to
the writ petitioner and complete the enquiry in all respects and take a
decision and pass orders on merits and in accordance with law within a
period of four months from the date of receipt of a copy of this order.
(3) The petitioners are directed to co-operate for the early disposal of
the enquiry proceedings by avoiding unnecessary adjournments. Even in
case of adjournment on genuine grounds, the competent authority must
record the reasons for such adjournments. In the event of non co-operation
on the part of the parties, such non co-operation is to be recorded in the
proceedings itself.
(4) The 1st respondent is directed to issue a Circular to all the District
Collectors and District Superintendent of Police across the State of Tamil
Nadu, to ensure immediate actions in the event of any damage or loss to the
property under the Act, and failure if any, should be viewed seriously and
http://www.judis.nic.in
W.P.No.4072 of 2014
appropriate actions are to be initiated against the public authorities, who all
are responsible and accountable for their lapses, negligence and dereliction
of duties.
44. With the above directions, the writ petition stands disposed of. No
costs. Consequently, connected miscellaneous petition is closed.
23.09.2021
Index : Yes/No
Internet:Yes/No
Speaking Order : Yes/No
Sgl/kak
Note: Registry is directed to communicate the copy of this order to the
learned Government Advocate, High Court, Madras.
To
1.The Additional Chief Secretary /
Commissioner of Revenue Administration
Revenue Department - Administration Disaster
Management and Mitigation Department,
http://www.judis.nic.in
W.P.No.4072 of 2014
Ezhilagam, Chepauk, Chennai - 600 005.
2.The General Manager,
Metropolitan Transport Corporation,
(Chennai) Limited, Pallavan House,
Chennai - 600 002.
3.The Government Advocate,
High Court, Madras.
http://www.judis.nic.in
W.P.No.4072 of 2014
S.M.SUBRAMANIAM, J.
Sgl/kak
W.P.No.4072 of 2014
23.09.2021
http://www.judis.nic.in
