Madras High Court

Consumer Protection Council ... vs The Secretary To Govt. Of Tamil ... on 8 August, 2022

                                                                        W.P.(MD)No.6912 of 2021

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED:   08.08.2022

                                                      CORAM :

                        THE HON'BLE MR.MUNISHWAR NATH BHANDARI, CHIEF JUSTICE
                                                           AND
                                        THE HON'BLE MRS.JUSTICE N.MALA
                                            W.P.(MD)No.6912 of 2021


                     Consumer Protection Council Tamil Nadu,
                     9, 12th Cross, Kumaran Nagar,
                     Tiruchirapalli 620 017, Rep. by its
                     Secretary, S.Pushpavanam.                              .. Petitioner

                                                           vs

                     1. The Secretary to Govt. of Tamil Nadu,
                        Revenue Department, Fort St. George,
                        Chennai 600 001.

                     2. The Principal Secretary,
                        Govt. of Tamil Nadu, Home (Prisons)
                         Department, Chennai.

                     3. The Special Commissioner for Land
                          Administration, Commissioner for
                         Land Administration Office,
                        Chennai 600 005.

                     4. The Addl. Director General of Police,
                         cum Inspector General of Prisons,
                        CMDA Tower 2, Egmore,
                        Chennai 600 008.

                     5. The District Collector,
                        Thanjavur District.

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                                                                           W.P.(MD)No.6912 of 2021



                     6. The District Revenue Officer,
                        Collectorate, Thanjavur District.

                     7. The Revenue Divisional Officer,
                        Collectorate, Thanjavur District.

                     8. The Thasildar,
                        Thanjavur, Thanjavur District.

                     9. The Registrar,
                        Shanmuga Arts, Science Technology
                         and Research Academy,
                        Thirumalasamudram, Vallam,
                        Thanjavur District 613 401.                            .. Respondents


                     Prayer: Petition filed under Article 226 of the Constitution of India for
                     issuance of a Writ of Mandamus directing the respondents 1 to 8 to
                     take necessary action to implement the order of this Court in
                     W.A.No.1451 of 2015 dated 21.08.2018, within stipulated time may be
                     fixed by this Court by considering the petitioner's representation dated
                     10.12.2019.


                                  For the Petitioner    :     Mr.S.Pushpavanam
                                                              Party-in-person

                                  For the Respondents   :     Mr.J.Ravindran
                                                              Addl. Adv. General
                                                              assisted by Mr.A.Selvendran,
                                                              Spl.G.P., for RR 1 to 8

                                                        :     Mr.G.Rajagopalan, Senior Counsel
                                                              for Mr.Niranjan Rajagopalan
                                                              and Mr.P.H.Aravind Pandian
                                                              for R-9

                                                            *****



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                                                                                 W.P.(MD)No.6912 of 2021



                                                                ORDER

(Order of the Court was made by the Hon'ble Chief Justice)

This public interest litigation has been filed with the following

prayer:

"To issue Writ of Mandamus directing the respondents 1 to 8 to take necessary action to implement the order of this Court in W.A.No.1451 of 2015 dated 21.08.2018, within stipulated time may be fixed by this Court by considering the petitioner's representation dated 10.12.2019."

2. The prayer quoted above shows nothing but for the

implementation of the judgment in W.A.No.1451 of 2015 dated

21.08.2018 within a stipulated time that could be fixed by this

Court, by considering the petitioner's representation dated

10.12.2019.

3. The petitioner-in-person submits that despite the judgment

of the Division Bench, the respondents have not made compliance,

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therefore, the petitioner was left with no other option except to file

the public interest litigation. It is more so when the encroachment

made by the private respondent exists for the last 40 years and it

has still not been removed. In view of the above, it is prayed that

an appropriate direction may be given to the official respondents for

compliance of the order passed by the Division Bench. The

petitioner was not otherwise having locus to file contempt petition

as he was not a party to the earlier litigation and thus, rightly filed

writ petition to seek implementation of the order.

4. We have considered the submission made by the petitioner

in person and perused the records.

5. The writ petition has been filed to seek implementation of

the order dated 21.08.2018 in W.A.No.1451 of 2015 without taking

course under the Contempt of Courts Act and it is mainly on the

ground that the petitioner has no locus to maintain the contempt.

The argument has been raised without realising that it is only the

non-compliance of the order which is required to be brought to the

notice of the Court and thereupon it remains between the Court and

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the contemnor. In the light of the aforesaid, the issue of locus does

not come into play. If it is assumed that the locus comes into play,

then it would be even for this petition seeking implementation of

the order in the writ petitions filed by others and not by the

petitioner, who is a third party to those writ petitions. Again, the

locus in filing the public interest litigation has no weightage as

otherwise it would remain in the ordinary writ jurisdiction. In the

light of the aforesaid, the issue has been analysed and otherwise we

find that the private respondent has filed W.P.Nos.6989 and 6993 of

2022, which are pending consideration, wherein the following order

has been passed by this Court today:

"Learned Additional Advocate General submits that out of the entire extent of encroachment of 33 acres, a part of it in S.No.148/28 is a waterbody and therefore, G.O. dated 10.05.2022 would not be applicable. Let the learned Additional Advocate General file an affidavit along with the documents to show that a part of the land encroached by the petitioner is a waterbody and whether any building has been constructed therein. It is otherwise submitted that hostel and class rooms have been constructed on the land so encroached.

2. Learned Additional Advocate General submits that despite remaining unsuccessful in the previous litigation, the effort of the petitioner is to drag the matter and somehow maintain the

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encroachment and thus, it is submitted that the possession of land and building may be taken under the control of this Court.

3. Learned counsel for the petitioner have seriously opposed the aforesaid. It is submitted that in the previous litigation, the issue in reference to G.O. dated 10.05.2022 was not raised and decided. The said G.O. permits exchange of land, in case of encroachment and accordingly, the petitioner has made an application for acceptance of their proposal for exchange of land.

4. We have considered the submission and find that G.O. dated 10.05.2022 would be applicable only if it is not a land of waterbody and to have a clarity on that, an affidavit may be filed by the respondents along with documents to find out whether any part of the encroached land falls under the waterbody so as to address the issue in reference to G.O. dated 10.05.2022. Since hostel and classrooms are operating on this alleged encroached land, as prayed for by learned Additional Advocate General, it would remain under the control of this Court till the final decision in these writ petitions.

5. The direction aforesaid would, however, not affect the students or their studies for any purpose, but would not allow the petitioner to raise any construction and its use would remain subject to the final outcome of the order, so as the possession.

Let the petitions be listed on 24.08.2022."

6. During the pendency of the aforesaid writ petitions, on the

request of the petitioner, this writ petition was directed to be

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transferred from the Madurai Bench of this Court. The said petitions

are pending consideration and an order has been passed today in

the aforesaid writ petitions, the petitioner, however, pressed to hear

this writ petition also thereupon and accordingly heard.

7. Finding that remedy of contempt is available and otherwise,

in the pending writ petitions, W.P.Nos.6989 and 6993 of 2022, an

order has been passed today, this writ petition is dismissed,

however, with liberty to the petitioner to take the other remedy as