Madras High Court
S.Tamilarasi vs S.Baskaran on 5 August, 2022
Cont P.No.436 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.08.2022
CORAM :
THE HON'BLE MR.MUNISHWAR NATH BHANDARI, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Cont P.No.436 of 2022
S.Tamilarasi ... Petitioner
Vs
1.S.Baskaran,
Zonal Officer, Zone - XIV
Chennai City Municipal Corporation
Puzhuthivakkam Main Road
Puzhuthivakkam
Chennai - 600 091.
2.M.Pugazhendhi
Executive Engineer Zone - XIV
Chennai City Municipal Corporation
Puzhuthivakkam Main Road
Chennai - 600 091.
3.Mohanavadivel
Assistant Executive Engineer
Division 188, Zone – XIV
Chennai City Municipal Corporation
Puzhuthivakkam Main Road
Chennai - 600 091.
4.Balaji
Assistant Engineer,
Division 188 Zone – XIV
Page 1 of 7
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Cont P.No.436 of 2022
Chennai City Municipal Coporation
Dr.Ambedkar Road
Chennai - 600 091. ... Respondents
Prayer: Petition filed under Section 11 of the Contempt of Courts Act to
punish the respondent for disobeying the order of the court in WP
No.2330 of 2020 dated 15.9.2020.
For the Petitioner : Mr.S.N.Ravichandran
For the Respondents : Mr.K.Raja Srinivas
ORDER
(Order of the Court was made by
the Hon'ble Chief Justice)
This contempt petition has been filed alleging non-compliance
of the order dated 15.09.2020 in W.P.No.2330 of 2020. The
operative portion of the order in paragraph 4 is quoted hereunder:
“4. Considering the said submissions made
by the petitioner, we direct the respondent Nos.2
to 5 in WP No.2330 of 2020 to take appropriate
action by taking into consideration of the relevant
materials including the communication sent by
the concerned Tahsildar, the approved plan issued
by the Chennai Metropolitan Development
Authority on the representation of the petitioner
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Cont P.No.436 of 2022
and to take appropriate action over the alleged
encroachment, if any, by restoring the public
road. Appropriate action will be taken within a
period of 12 weeks from the date of receipt of
copy of this order duly following the procedure of
law.”
2. For compliance of the above order, Chennai Metropolitan
Development Authority sought a report from the Tahsildar,
Sholinganallur Taluk, who had informed that there is no
encroachment in the roads/streets in S.Nos.99, 100, 111 and 112 of
Madipakkam Village. A serious dispute on the aforesaid is raised by
learned counsel for the petitioner, who submits that encroachment
exists and the road was blocked by encroaching the land and
therefore, it would not lie in the mouth of the respondents now to
submit that there is no encroachment.
3. We have considered the submissions made by the parties
and while considering the contempt petition, we cannot open the
matter to decide the writ petition on merits. Learned Division Bench
did not record a categorical finding about the encroachment, rather,
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Cont P.No.436 of 2022
appropriate direction was given to the authorities that if any
encroachment is found, to take action. In compliance of the order,
action taken may be right or wrong, but cannot be subject-matter
of comtempt. It may be subject-matter of a fresh litigation, in view
of the judgment of the Apex Court in the case of J.S. Parihar v.
Ganpat Duggar, (1996) 6 SCC 291. The relevant paragraph of
the said judgment is quoted hereunder:
"6. The question then is whether the Division
Bench was right in setting aside the direction issued
by the learned Single Judge to redraw the seniority
list. It is contended by Mr S.K. Jain, the learned
counsel appearing for the appellant, that unless the
learned Judge goes into the correctness of the
decision taken by the Government in preparation of
the seniority list in the light of the law laid down
by three Benches, the learned Judge cannot come
to a conclusion whether or not the respondent had
wilfully or deliberately disobeyed the orders of the
Court as defined under Section 2(b) of the Act.
Therefore, the learned Single Judge of the High
Court necessarily has to go into the merits of that
question. We do not find that the contention is well
founded. It is seen that, admittedly, the
respondents had prepared the seniority list on 2-7-
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Cont P.No.436 of 2022
1991. Subsequently promotions came to be made.
The question is whether seniority list is open to
review in the contempt proceedings to find out
whether it is in conformity with the directions
issued by the earlier Benches. It is seen that once
there is an order passed by the Government on
the basis of the directions issued by the court,
there arises a fresh cause of action to seek
redressal in an appropriate forum. The
preparation of the seniority list may be wrong or
may be right or may or may not be in conformity
with the directions. But that would be a fresh
cause of action for the aggrieved party to avail
of the opportunity of judicial review. But that
cannot be considered to be the wilful violation of
the order. After re-exercising the judicial review
in contempt proceedings, a fresh direction by the
learned Single Judge cannot be given to redraw
the seniority list. In other words, the learned
Judge was exercising the jurisdiction to consider
the matter on merits in the contempt
proceedings. It would not be permissible under
Section 12 of the Act. Therefore, the Division
Bench has exercised the power under Section 18 of
the Rajasthan High Court Ordinance being a
judgment or order of the Single Judge; the Division
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Cont P.No.436 of 2022
Bench corrected the mistake committed by the
learned Single Judge. Therefore, it may not be
necessary for the State to file an appeal in this
Court against the judgment of the learned Single
Judge when the matter was already seized of the
Division Bench."
[emphasis supplied]
4. In view of the above, we do not find any ground to proceed
with the contempt petition. However, keeping the issue open, we
close the contempt petition, giving liberty to the petitioner that if he
is so aggrieved by the action or decision taken by the respondents,
he may launch a fresh litigation. The contempt petition is closed.
The notice of contempt is discharged.
(M.N.B., CJ.) (D.B.C., J.)
05.08.2022
Index : Yes/No
tar
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Cont P.No.436 of 2022
M.N.Bhandari, CJ.
and
D.Bharatha Chakravarthy, J.
(tar)
Cont P.No.436 of 2022
05.08.2022
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