N.Subramaniam v. K.R.Paramasivam

1 IN THE HIGH COURT OF JUDICATURE AT MADRAS(CONTEMPT JURISDICTION) FRIDAY, THE 11TH DAY OF SEPTEMBER, 2009 THE HON'BLE MR.JUSTICE M.JAICHANDRENCONTEMPT PETITION NO.93 OF 2004 ************N.Subramaniam,732, Brough Road,Erode 638 001... PetitionerVs1.K.R.Paramasivam, S/o.G.Ramasamy Gounder, 711,Brough Road, (Vasuki Street) Erode 638 001.2.S.Meialagan, The Commissioner, Erode Municipality, Erode.3.P.Balasubramaniam,I.P.S., The Superintendent of Police, Erode District, Erode. .. RespondentsContempt Petition praying that this Court be pleasedto punish the respondents herein for their wilfuldisobedience of the order of this Hon'ble Court dated30/12/2003 and made in W.P.M.P.No.46703 of 2003 inW.P.No.38476 of 2003.The above Contempt Petition coming on this day beforethis Court for hearing in the presence of Mr.R.Gandhi,Senior Advocate for Mr.R.G.Narendiran, Advocate for thepetitioner herein; and of Mr.R.Muthukumarasamy, SeniorAdvocate for MR.V.Bharathidasan, Advocate for therespondents herein; and upon reading the petition and https://hcservices.ecourts.gov.in/hcservices/ 2affidavit of N.Subramaniam, filed herein; and the CounterAffidavit of K.R.Paramasivam, filed herein; and the Reportsof the Advocate Commissioner, filed herein; and the Orderof this Court herein dated 25/02/2004, the Court madethe following order:-This contempt petition has been filed praying thatthis Court may be pleased to punish the respondents forwilfull disobedience of the order of this Court, dated30.12.2003, made in W.P.M.P.No.46703 of 2003, inW.P.No.38476 of 2003. 2.The petitioner has stated that he is residing atNo.732, Brough Road, Erode. The first respondent, who ishis neighbour, had purchased a plot having an extent of2,500 sq.ft., of vacant land, at No.711 Brough Road,(Vasuki Street), Erode. After purchasing the vacant land,the first respondent started putting up a massive structurein the said land for commercial purposes. Even though hehad applied and got approval from the second and thirdrespondents in the writ petition for constructing abuilding with ground plus first floors, for residentialpurpose, vide Roc.No.F2/23329/01, dated 5.12.2001, theconstruction has been done without leaving open spaces,which are mandatory under the relevant building rules. Thepetitioner had also made a representation to the DistrictCollector, Erode, on 19.11.2003, narrating all the facts. https://hcservices.ecourts.gov.in/hcservices/

33.The petitioner had further stated that since noaction was taken by the authorities concerned, thepetitioner had filed a writ petition before this Court, inW.P.No.38476 of 2003, praying for a writ of Mandamus todirect the respondents 1 to 3 to take action against thefourth respondent therein, for his unauthorisedconstruction at Door Nos.710-713, Brough Road, (VasukiStreet), Erode, and to direct the respondents 1 to 3 todemolish the unauthorised construction made by the fourthrespondent. This Court, by an order, dated 30.12.2003, madein W.P.M.P.No.46703 of 2003, in W.P.No.38476 of 2003,granted an order of interim injunction, as prayed for bythe petitioner, restraining the first respondent and hismen from, in any manner, constructing the building at DoorNos.710-713, Brough Road, (Vasuki Street), Erode, pendingdisposal of the Writ petition in W.P.No.38476 of 2003. 4.The said order was communicated to the respondents 1and 2, on 31.12.2003, by way of a telegram. It was alsoinformed that the contempt proceedings would be initiated,if the order is not obeyed by the said respondents. On6.1.2004, a copy of the order had been served on therespondent and it was also sent to him by registered post,with acknowledgment due. Though the first respondent hadsufficient knowledge of the order passed by this Court, hehad not stopped the construction activities. In fact, hehad continued to construct the non- residential building at https://hcservices.ecourts.gov.in/hcservices/ 4a faster pace. Thus, the first respondent had committedcontempt of Court by wilfully disobeying the order of thisCourt, dated 30.12.2003, made in W.P.M.P.No.46703 of 2003,in W.P.No.38476 of 2003. 5.In the counter affidavit filed on behalf of thefirst respondent, the averments and allegations made in theaffidavit filed in support of the contempt petition hadbeen denied. 6.It has been stated that the first respondent hadpurchased an extent of 2,575 sq.ft. of land, with a smalltiled house in Door Nos.710 to 713, in Brough Road, Erode,in the year 1998. Thereafter, the first respondent hadapplied to the Erode Municipality seeking permission fordemolishing the tiled house and for constructing a newbuilding therein. He had also submitted a plan for theconstruction of a building, with semi basement meant forparking, with ground and first floors. The ErodeMunicipality had duly approved the plan and had grantedpermission for the construction of the building, by itsorder, dated 5.12.2001. 7.It has also been stated that the first respondent'sdaughter is a Gynecologist and his son-in-law is aCardiologist and they are practicing together. Therefore,the first respondent had decided to construct a Hospitalfor them to carry on their practice. With a view to providebetter medical facilities to the general public, the first https://hcservices.ecourts.gov.in/hcservices/ 5respondent had constructed two additional floors, for whichhe had submitted a revised plan to the Erode Municipality.The Municipality was in the process of forwarding therevised plan submitted by the first respondent to theDirector of Town and Country Planning for granting thenecessary exemption. 8.It has been further stated that the ErodeMunicipality had assessed the building for property tax inthe year 2002-2003, on 28.3.2003, for all the three floorsand the first respondent had also paid the property tax, on20.3.2003. The property tax had also been paid for thecurrent period. While so, the Erode Municipality had issueda notice to the first respondent, under Section 205, readwith Section 317 of the Tamil Nadu District MunicipalitiesAct, for violation of the building rules and a criminalprosecution had also been launched against the firstrespondent, in STF No.1294/2003. The Judicial MagistrateNo.2, Erode, had imposed a fine of Rs.500/-, on 6.10.2003,for the violation committed by the first respondent. 9.The petitioner in the present contempt petition hadfiled a writ petition before this Court, in W.P.No.38476 of2003, and had obtained an order of interim injunction by anorder, dated 30.12.2003, long after the completion of thebuilding in question. Except the flooring in certain areasand other finishing works on the basement and the ramps ofthe building, all other activities relating to the https://hcservices.ecourts.gov.in/hcservices/ 6construction works, including plastering and polishing, hadbeen stopped. 10.It has also been stated that the first respondenthad not proceeded with any construction, after having theknowledge of the interim order passed by this Court, on30.12.2003. 11.It has also been stated that the allegations in theaffidavit filed in support of the contempt petition arevague and non specific regarding the nature and manner ofconstruction, alleged to have been done by the firstrespondent. The contempt petition has been filed with amala fide motive, as the petitioner had failed in hisattempt to purchase the property in question, which belongsto the first respondent. Further, the petitioner's wife isalso a Gynecologist having a Hospital close to the buildingconstructed by the first respondent. 12.It has also been stated that the first respondenthad not committed any contempt of Court, as there is nowilfull disobedience of the order passed by this Court, on30.12.2003, in W.P.M.P.No.46703 of 2003 in W.P.No.38476 of2003. However, the first respondent tenders hisunconditional apology, if this Court, for some reason,finds that he had committed contempt of Court. In suchcircumstances, this Court may be pleased to dismiss thecontempt petition, as devoid of merits. https://hcservices.ecourts.gov.in/hcservices/

713.Mr.R.Gandhi, the learned senior counsel appearingfor the petitioner had vehemently contended that the firstrespondent had wilfully disobeyed the order of this Court,dated 30.12.2003, in W.P.M.P.No.46703 of 2003 inW.P.No.38476 of 2003. Thus, the first respondent hadcommitted contempt of Court, for which he should bepunished, as per the provisions of the contempt of CourtAct, 1971. He had also submitted that in spite of knowingthe nature of the order, dated 30.12.2003, as noted fromhis counter affidavit, wherein he had stated that he hadtotally stopped all the construction works, which includesplastering and polishing, after he had received theinformation about the interim order passed by this Court. 14.The learned senior counsel appearing for thepetitioner had also stated that an Advocate Commissionerhad been appointed by this Court, by its order, dated25.2.2004, to visit the property in question, with theAssistance of a qualified and experienced constructionEngineer, to find out the age of the building as on thedate of the order, to note down the physical features ofthe property and to ascertain the period during which theconstruction had been undertaken and completed. Pursuant tothe said order, the Advocate Commissioner had submitted areport, dated 2.3.2004, noting the physical features of thebuilding in question as it was on the date of theinspection. Further, evidence had also been recorded. https://hcservices.ecourts.gov.in/hcservices/

815.The learned senior counsel appearing for thepetitioner had also submitted that since the firstrespondent had carried on the activity of constructing thebuilding, in spite of the injunction order passed by thisCourt, on 30.12.2003, and completed the same, the AdvocateCommissioner had been sent, once again, to visit thepremises bearing Door Nos.710-713, Brough Road, (VasukiStreet), Erode, on 14.12.2007, to ascertain the status ofthe building thereafter. The Advocate Commissioner hadfiled a report, dated 18.12.2007, describing the status ofthe building, as on the date of her inspection. 16.The learned senior counsel appearing for thepetitioner had also submitted that, from the reports of theAdvocate Commissioner, dated 2.3.2004, and 18.12.2007, itis amply clear that the first respondent had carried on andcompleted the construction on the building in totalviolation of the order of injunction passed by this Court,on 30.12.2003. As such, the first respondent had committedcontempt of Court by his wilfull disobedience of the orderpassed by this Court, on 30.12.2003, in W.P.M.P.No.46703 of2003, in W.P.No.38476 of 2003. Therefore, he is liable tobe punished in accordance with the provisions of thecontempt of Courts Act, 1971. 17.Per contra, Mr.R.Muthukumarasamy, the learnedsenior counsel appearing for the first respondent hadsubmitted that even though the first respondent had not https://hcservices.ecourts.gov.in/hcservices/ 9committed contempt of Court by wilfully disobeying theorder of this Court, dated 30.12.2003, in W.P.M.P.No.46703of 2003, in W.P.No.38476 of 2003, as alleged by thepetitioner, he has tendered an unconditional apology, ifthis Court, for some reason, finds that he had committedcontempt of Court. 18.It has been further stated that no constructionactivity had been carried on in respect of the structure ofthe building in question after the order of interiminjunction had been passed by this Court, on 30.12.2003. Ifat all, certain minor activities, like, some finishingtouches might have taken place without, in any way,intending to disobey the order of injunction passed by thisCourt, on 30.12.2003. Even from the reports filed by theAdvocate Commissioner, it cannot be found that structuralconstruction had taken place, subsequent to the orderpassed by this Court, on 30.12.2003. 19.The learned senior counsel appearing for the firstrespondent had also submitted that it would have beenproper for the first respondent to have obtained aclarification from this Court as to whether he couldcomplete the activities in the building, like, plasteringof certain portions of the wall, closing of the sump,polishing of the floors and doing up the place with thenecessary furnishings and equipments to make it fit enoughfor the running of the Hospital. If the first respondent https://hcservices.ecourts.gov.in/hcservices/ 10had known that such activities would also be covered by theorder of interim injunction passed by this Court, on30.12.2003, he would have definitely stopped even suchactivities. However, there is no mala fide intention orulterior motive in carrying on such activities. The firstrespondent had never intended to wilfully disobey the orderpassed by this Court, on 30.12.2003. 20.The learned senior counsel appearing for the firstrespondent had also reiterated the stand of the firstrespondent that he tenders his unconditional apology forhis unintended negligent behaviour. Further, it had alsobeen submitted that the first respondent would undertake toabide by any order passed by this Court and that he has gotthe highest regard and respect towards the judiciary andits orders. 21.In view of the submissions made by the learnedsenior counsels appearing for the parties concerned and ona perusal of the records available, this Court is of theconsidered view that the respondents had not committedcontempt of Court, as alleged by the peti.tioner. The firstrespondent had shown his bonafides by admitting thatcertain activities had been carried on, in respect of thebuilding in question and that he had never intended towilfully disobey the order passed by this Court. Further,he had also tendered his unconditional apology, for hisnegligent acts, which had been done without any intention https://hcservices.ecourts.gov.in/hcservices/ 11of showing disrespect to this Court. As such, it cannot beheld that the respondents had committed contempt of Court,as alleged by the petitioner. In such circumstances, thecontempt petition stands dismissed. No costs. Witness the Hon'ble Thiru HEMANT LAXMAN GOKHALE, TheChief Justice of High Court at Madras, as aforesaid, thisthe 11th day of September, 2009. sd/-DEPUTY REGISTRAR (OS)//Certified to be true copy//Dated at Madras this the day of 2009.COURT OFFICER(O.S.)From 25th Day of September 2008 the Registry is issuingcertified copies of the Orders/Judgments/Decrees in thisformat. https://hcservices.ecourts.gov.in/hcservices/ 12Cns.CONTEMPT PETITION No.93/2004THE HON'BLE MR.JUSTICEM.JAICHANDREN ORDERDATED : 11/09/2009FOR APPROVAL :18/03/2010APPROVED ON :18/03/2010 Copy to :1.Mr..S.Meialagan The Commissioner Erode Municipality Erode2.Mr.P.Balasumbramaniam I.P.S., The Superintendent of Police Erode District, Erode.