Madras High Court
Super Saravana Stores vs Henri Tiphagne on 14 August, 2023
WA(MD)No.1330 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 14.08.2023
CORAM
THE HON'BLE MR JUSTICE M.S.RAMESH
AND
THE HON'BLE MR JUSTICE M.NIRMAL KUMAR
W.A.(MD)No.1330 of 2023
and CMP(MD) No.10050 of 2023
Super Saravana Stores
represented by its Managing Director,
Super Saravana Stores
Melur Road
Mattuthavani
Madurai 625 107 ... Appellant
Vs.
1.Henri Tiphagne
2.The District Magistrate and District Collector
Madurai, Madurai District
3.The Revenue Divisional Officer,
Madurai District
Madurai.
4.The Tahsildar,
Madurai East Taluk
Madurai District
5.The Commissioner of Police,
Madurai City, Madurai 625 002.
Page 1 of 16
https://www.mhc.tn.gov.in/judis
WA(MD)No.1330 of 2023
6.The Commissioner of Corporation,
Madurai Corporation
Madurai. 625 002.
7.The Deputy Commissioner of Police (Traffic)
Madurai City, Madurai 625 002.
8.The District Officer,
Fire and Rescue Department,
District collector Office Campus,
Madurai 625 020.
9.The Superintending Engineer
Public Works Department
Tallakulam
Madurai 625 002.
10.Meenakshi Mission Hospital and Research Centre,
Represented by its Manager,
Melur Road, Uthangudi,
Madurai. 625 107
11.The Director
Town and Country Planning
Chennai. ... Respondents
PRAYER: Writ Appeal filed under Clause 15 of Letters Patent against
the order dated 12.06.2023 in W.P.(MD) No.28841 of 2022.
For Appellant : Mr.P.Valliappan
Senior Counsel for
Mr.P.Thiyagarajan
For Respondents : Mr.Henry Tiphagne
Page 2 of 16
https://www.mhc.tn.gov.in/judis
WA(MD)No.1330 of 2023
party in person (R1)
Mr.A.Thiruvadi Kumar for R2 to R5 and
R7
Additional Public Prosecutor
Mr.S.Vinayak
standing counsel for R6
Mr.J.Ashok for R8, R9 and R11
Additional Government Pleader
JUDGMENT
(Judgment of the Court was delivered by M.S.RAMESH,J.)
This appeal is preferred against the order of the learned Single
Judge, passed in W.P.(MD) No.28841 of 2023 dated 12.06.2023, whereby
the learned Single Judge had issued series of directions for identifying
the existence of certain alleged public nuisances and for
removal/rectification of such nuisances. This appeal is filed under
Clause 15 of the Madras High Court Letters Patent.
2. The first respondent/party-in-person raised a preliminary
objection with regard to the maintainability of this appeal contending that
the order of the learned single Judge was passed in exercise of criminal
jurisdiction and therefore, an intra Court appeal is barred in view of
https://www.mhc.tn.gov.in/judis
WA(MD)No.1330 of 2023
Clause 15 of the Letters Patent.
3. In response, the learned Senior counsel appearing for the
appellant attempted to substantiate its maintainability by stating that the
order in question dealt the issue in hand as a Public Interest Litigation
and therefore, this appeal is maintainable.
4. The brief facts that led to the passing of the impugned order
by the learned Single Judge are as follows:
The first respondent had given written petitions dated
12.12.2022 and 17.12.2022 to the Commissioner of Police,
Commissioner of Madurai City Corporation and the Superintending
Engineer of the Public Works Department under Section 133 of the Code
of Criminal Procedure seeking for action against certain alleged nuisance
created at Melur Road owing to traffic congestion and inconvenience to
the public pedestrians owing to the unorganised facilities provided for
parking at the appellant's stores as well as the 10th respondent's hospital
premises.
https://www.mhc.tn.gov.in/judis
WA(MD)No.1330 of 2023
5. The writ petition was listed before the learned Single Judge,
who exercised powers under Section 482 of the Code of Criminal
Procedure in addition to hearing of writ petitions under Article 226 of the
Constitution of India dealing with the criminal proceedings. Before the
learned Single Judge, the maintainability of the writ petition in criminal
jurisdiction was challenged, which was negatived by holding that it is
one under criminal jurisdiction and therefore, maintainable. The relevant
portion of the orders reads as follows:
“14. The next contention raised on behalf of the
ninth respondent that the present writ petition which
contains so many allegations about the duty of the various
departments of the Government cannot be treated as a Writ
Petition (Crl.), that the suo motu action of this Court
impleading the Director of Town and Country Planning,
calling for reports from the Commissioner of Madurai
Corporation about the planning permission and
construction, from the District Officer, Fire and Rescue
Department, are all beyond the purview of the subject
roster assigned to this Bench and therefore, the ninth
respondent is opposing the listing of the above writ
petition before this Bench.
https://www.mhc.tn.gov.in/judis
WA(MD)No.1330 of 2023
15. At the outset, the above contention of the
ninth respondent, in the view of this Court, is ridiculous.
First of all, the plea was not at all raised in the earlier
hearings, but was canvassed in the final arguments. It is
pertinent to note that on the basis of the allegations raised
and the nature of the relief claimed, more particularly the
allegation of the petitioner that he has suffered personally
due to the public nuisances complained of, the above Writ
Petition (Crl.) has rightly been posted before this Bench.
During the hearing, considering the nature of the
allegations and charges levelled and also the submission of
the Counsel appearing for the Government Departments,
this Court, suo motu impleaded the Director of Town and
Country Planning, directed the Commissioner of Madurai
Corporation and the District Officer of the Fire and Rescue
department, to submit reports. When this Court was
exercising its jurisdiction under Article 226 of the
Constitution of India, it has the powers to add any other
party whose presence is required for disposal of the case
and to call for reports from any of the departments
incidentally. When this Court was conducting an enquiry in
the above writ petition, after having satisfied itself, prima
facie that the Writ Petition is maintainable, is having every
power and jurisdiction to implead any party or to call for
report from any of the parties to the lis or from a third
https://www.mhc.tn.gov.in/judis
WA(MD)No.1330 of 2023
party, to find out the truth and to decide the issues involved
in the lis. Hence, the very challenge of this Court's
jurisdiction is not only improper, but not warranted, ill
motivated and in bad taste.”
6. To further ascertain the nature of the writ petition, we had
perused the materials before the learned Single Judge. The very prayer in
the writ petition was for a consideration of the writ petitioner's
representations dated 12.12.2022 and 17.12.2022 for removal of public
nuisances. These two representations are actually petitions, which has
been titled as “petitions filed under Section 133 Cr.P.C”. Incidentally
Section 133 prescribes the procedure for passing conditional order for
removal of nuisance by the District Magistrate or the Sub Divisional
Magistrate or any other Executive Magistrate empowered by the State
Government. The averments in the affidavit filed in support of the writ
petition also emphasizes the writ petitioner's claim of public nuisance in
the subject area and for removal of the same under the procedure
contemplated under Section 133 Cr.P.C.
https://www.mhc.tn.gov.in/judis
WA(MD)No.1330 of 2023
7. The learned Judge had also taken note of these aspects and
emphasized that the writ petition he was dealing with was one under
criminal jurisdiction, which part of the order has been extracted
hereinabove. Thus, we have no hesitation to hold that the writ petition
before the learned Judge was one under exercise of criminal jurisdiction.
8. The next question that arises for consideration is as to
whether an intra Court appeal would lie against an order of a learned
Single Judge in exercise of his powers under criminal jurisdiction. The
answer to this question is inherent under Clause 15 of the Madras High
Court Letters Patent. For better understanding, the said clause is
extracted hereunder:
"Clause 15. Appeal from the Courts of Original
Jurisdiction to the High Court in its appellate jurisdiction: And
We do further ordain that an appeal shall lie to the said High
Court of Judicature at Madras from the judgment (not being a
judgment passed in the exercise of appellate jurisdiction in
respect of a decree or order made in the exercise of appellate
jurisdiction by a Court subject to the superintendence of the said
https://www.mhc.tn.gov.in/judis
WA(MD)No.1330 of 2023
High Court, and not being an order made in the exercise of
revisional jurisdiction, and not being a sentence or order passed
or made in the exercise of the power of superintendence under
the provisions of Sec.107 of the Government of India Act, or in
the exercise of criminal jurisdiction) of one Judge of the said
High Court or one Judge of any Division Court, pursuant to
Sec.108 of the Government of India Act, and that
notwithstanding anything herein before provided an appeal shall
lie to the said High Court from a judgment of one Judge of the
said High Court or one Judge of any Division Court, pursuant to
Sec.108 of the Government of India Act made (on or
http://www.judis.nic.in 5 after the 1st day of February, 1929), in
the exercise of appellate jurisdiction in respect of a decree or
order made in the exercise of appellate jurisdiction by a Court
subject to the superintendence of the said High Court, where the
Judge who passed the judgment declares that the case is a fit one
for appeal, but that the right of appeal from other judgments of
Judges of the said High Court or of such Division Court shall be
to Us, Our Heirs of Successors in Our or Their Privy Council as
hereinafter provided."
(emphasis supplied)
https://www.mhc.tn.gov.in/judis
WA(MD)No.1330 of 2023
9. The aforesaid definition is self-explanatory and a plain
reading of the same emphasizes the prohibition of an intra Court appeal
against the order of a learned Single Judge, who exercises power of
criminal jurisdiction.
10. To fortify our finding in this regard, we place reliance on
the following case laws:
(i) In Ram Kishan Fauji v. State of Haryana and others
[(2017) 5 SCC 533], the Hon'ble Supreme Court had held that the vital
factor for determination of the maintainability of the intra Court appeal is
the nature of jurisdiction invoked by the party and the true nature of the
order passed by the learned Single Judge. It was further held that when
there is a proceeding under Article 226 of the Constitution of India
arising from an order made by a Court in exercise of power under the
Code of Criminal Procedure, it would be a criminal procedings within the
meaning of the Letters Patent;
https://www.mhc.tn.gov.in/judis
WA(MD)No.1330 of 2023
(ii) A Coordinate Bench of this Court in the case of S.768
K.N.Pudur Primary Agricultural Cooperative Credit Society Ltd., v.
G.Balakrishnan and others passed in W.A.SR.No.1941 of 2018 dated
30.01.2018, had placed reliance on Ram Kishan Fauji's case (supra) and
taken a similar view in the following manner:
“9. Recently, a three-Judge Bench of the Supreme Court,
in the decision reported in 2017 (5) SCC 533 (Ram Kishan Fauji Vs.
State of Haryana), categorically held that it is manifest that no intra-
Court appeal lies against the http://www.judis.nic.in 6 order of the
single Judge in exercise of the criminal jurisdiction. When there are
proceedings under Article 226 of the Constitution of India arising
from an order made by the Court in exercise of the power conferred
under the Code of Criminal Procedure (Cr.P.C), it would be a
criminal proceedings within the meaning of the Letters Patent. On a
plain reading of the Letters Patent of the High Court of Judicature at
Madras, it is clear that no appeal lies against the order passed by the
learned single Judge in exercise of criminal jurisdiction. Further, the
Court in a writ appeal pursuant to Clause 15 of the Letters Patent,
exercises appellate jurisdiction and not a jurisdiction as conferred
under Article 226 of the Constitution of India. When a power
https://www.mhc.tn.gov.in/judis
WA(MD)No.1330 of 2023
conferred under Article 226 of the Constitution of India is invoked at
the instance of a litigant with regard to any criminal matter, it is
deemed to have been exercised by the Court under Section 482
Cr.P.C. Hence, no intra-Court appeal is permissible. The Bench
hearing the matters pertaining to Section 482 Cr.P.C. cannot exercise
the jurisdiction under Article 226 of the Constitution of India,
whereas the Bench hearing the matters exercising the extraordinary
jurisdiction under Article 226 of the Constitution of India, is
empowered to deal with the issues that may fall under Section 482
Cr.P.C. As the jurisdiction exercised in this case is one under Section
482 Cr.P.C., only appeal will lie to the Supreme Court and not before
the Division Bench of the Court.”
(iii) Similar view was also taken by another Coordinate Bench
in the case of C.Sivasankaran v. Foreigner Regional Registration
Officer (FRRO) and others in W.A.No.SR49793 of 2020, wherein, it has
been held thus:
“16.... The sequence of facts, and the consequence
towards which the writ petition is aimed at, clearly relate to
criminal proceedings that have led to the issuance of the
circular. This may involve the guarantee of liberty to a person
under Article 21 of the Constitution, but the genesis of the
action is connected with the criminal prosecutions pending
https://www.mhc.tn.gov.in/judis
WA(MD)No.1330 of 2023
against the appellant, the umbilical cord whereof has not yet
snapped. The contention that it only involves civil rights of the
appellant is, therefore, not correct because the relief revolves
around consequences arising or likely to arise as a result of
criminal prosecution.”
11. In both the decisions of the Coordinate Benches of this Court,
the writ appeals filed under Clause 15 of the Letters Patent against the
orders of the learned Single Judges in a writ petition under criminal
jurisdiction were dismissed on the ground of maintainability of the writ
appeal. To sum up, the foundation or the genesis of the case before the
learned Single Judge arose from a petition made to the Government
authority under Section 133 of the Code of Criminal Procedure for
removal of encroachments and the learned Single Judge had also
reiterated that the writ petition is in exercise of his criminal jurisdiction.
Clause 15 of the Letters Patent prohibits an intra Court appeal against the
order passed by the learned Single Judge exercising the powers of
criminal jurisdiction.
12. This ratio is further fortified by the decisions of the Hon'ble
Supreme Court as well as the Coordinate Benches of this Court, which
https://www.mhc.tn.gov.in/judis
WA(MD)No.1330 of 2023
have been extracted hereinabove. Hence, we are of the affirmed view
that the present writ appeal is not maintainable. Accordingly, the writ
appeal stands dismissed. Consequently connected Miscellaneous Petition
is closed.
(M.S.R.,J.) (M.N.K.,J.)
14.08.2023
NCC : Yes / No
Index : Yes / No
Office to Note: Registry is directed to return the original
order of the Writ Petition to the learned counsel
for the appellant after retaining a photocopy of the same.
RR
To
1.The District Magistrate and District Collector
Madurai, Madurai District
2.The Revenue Divisional Officer,
Madurai District
Madurai.
3.The Tahsildar,
Madurai East Taluk
Madurai District
4.The Commissioner of Police,
Madurai City, Madurai 625 002.
https://www.mhc.tn.gov.in/judis
WA(MD)No.1330 of 2023
5.The Commissioner of Corporation,
Madurai Corporation
Madurai. 625 002.
6.The Deputy Commissioner of Police (Traffic)
Madurai City, Madurai 625 002.
7.The District Officer,
Fire and Rescue Department,
District collector Office Campus,
Madurai 625 020.
8.The Superintending Engineer
Public Works Department
Tallakulam
Madurai 625 002.
9.The Director
Town and Country Planning
Chennai.
https://www.mhc.tn.gov.in/judis
WA(MD)No.1330 of 2023
M.S.RAMESH, J.
AND
M.NIRMAL KUMAR, J.
RR
W.A.(MD)No.1330 of 2023
14.08.2023
https://www.mhc.tn.gov.in/judis
