IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28/10/2005
CORAM
THE HON'BLE MR.JUSTICE P.K.MISRA
CONTEMPT PETITION No.196 of 2005
E.Thangasamy Raja
S/o.T.M.K.Ettayappan .. Petitioner
-Vs-
1. Mr.A.Mani
The Executive Officer
Ettayapuram Selection Grade
Town Panchayat
Ettayapuram
Tuticorin District.
2. S.Saravanavelu
who is presently working as
Executive Officer
Special Village Panchayat
Kanyakumari.
(Proceedings closed against
Respondent No.2 by order dated
1.10.2005)
3. A.Nagarathinam
who is presently working as
Executive Officer
Special Village Panchayat,
Earal, Thoothukudi District. .. Respondents
Respondents-2 & 3 are impleaded
as per order dated 29.7.2005
made in the above Contempt
Petition.
Contempt Petition filed under Sections 10 and 12 of the Contempt of
Courts Act to punish the respondent for wilful disobedience of the orders
passed by this Court in W.P.No.40814 of 2002 dated 31.3.2004.
!For petitioner : Mr.J.Pothiraj
^For respondent-1 : Mr.R.Karthikeyan
Government Advocate
For respondent-3 : Mr.V.Ramajagadeesan
:ORDER
The contempt petition has been filed by the petitioner in W.P.No.408
14 of 2002, which was allowed on 31.3.2004. The operative portion of the
judgment is as follows:-
” 10. Having regard to the facts and circumstances of the case and keeping
in view the several orders passed by the High Court on earlier occasions, the
impugned proceedings dated 27.5.2002 is quashed and it is directed that the
petitioner’s application for renewal or fresh application for renewal should
be considered in accordance with law and it should be borne in mind that the
petitioner as the priority in right to hold the market on Saturdays and if the
respondent is of the opinion that weekly market cannot be held at two
different places on the very same day, the respondent would to well shift its
market day to any other suitable day. Keeping in view the recalcitrant
attitude of the respondent, I direct the respondent to pay a consolidated
costs of Rs.2,500/- to the petitioner. Pending application or the fresh
application for renewal should be considered by the respondent in the light of
the observations made within a period of four weeks from the date of receipt
of a copy of this order.”
2. The writ petitioner received a copy of the order on 16.4.2004 and
thereafter sent a representation on 6.5.2004 annexing a copy of the order to
consider the application for renewal. The representation and the copy of the
order was served on the original respondent, who was the Executive Officer of
the Ettayapuram Selection Grade Town Panchayat, but no action was taken. The
second representation dated 3.8.2 004 was made, which was received. On
11.8.2004, the respondent sent a communication stating that writ appeal has
been filed. When the When the petitioner requested to furnish number of the
writ appeal, the respondent gave a reply dated 23.8.2004 indicating S.R.
Number of the writ appeal. On 1.8.2004, the petitioner informed the
respondent that W.A.No.3518 of 2004 was dismissed as withdrawn. Subsequently,
by proceedings dated 12.11.2004, the respondent informed the petitioner that
they would renew the licence after the petitioner files a fresh application.
On 16.11.2004, the petitioner sent a detailed representation that he had sent
a representation as early as on 6.5.2004 with proper application and licence
fee of Rs.75/- by demand draft dated 5.5.2004. After receiving the
representation dated 16.11.2004, the respondent sent another reply dated
23.11.2004 indicating that the demand draft sent by the petitioner has become
time barred/invalid and directed the petitioner to take a fresh demand draft
in order to renew the licence. By representation dated 29.11.2004, the
petitioner informed the respondent that the demand draft has become invalid
due to negligence of the respondent and it was not the fault of the petitioner
and it is further indicated that only to drag on the question of issuing
licence, the respondent is involving in such dilatory tactics. The petitioner
also indicated that he had provided sufficient toilet facilities, which has
been confirmed by the Advocate Commissioner during the earlier writ
proceedings. In order to satisfy the demand of the respondent, a fresh
application was also made by the petitioner, which was received on 1.12.2004,
and the respondent, on some pretext of the other, is indulging in dilatory
tactics nor deny the right of the petitioner in total disregard of the order
passed by the High Court.
3. A counter affidavit was filed by the original contemner A.Mani.
In such counter affidavit, it has been indicated that the order was passed on
31.3.2004 in W.P.No.40814 of 2002 and at that time, one Nagarathinam was the
Executive Officer of the Panchayat. An explanation has been called for from
the said Nagarathinam by the Assistant Director of Town Panchayat on 23.4.2005
calling for this explanation as to why the writ appeal was withdrawn and such
officer gave a reply on 3 0.5.2005 stating that the Advocate had withdrawn the
appeal due to ” contingency and prevailing circumstances in the Court hall”
and the letter of the Advocate was enclosed along with the explanation. A.
Mani, in his affidavit, has further stated that everything was done by the
previous Executive Officer and he joined only on 22.12.2004 and before his
joining, the writ appeal was withdrawn on 29.9.2004 and the subsequent Review
Petition filed to review the judgment was dismissed and a copy of the judgment
in the Review Petition was received by A. Mani on 17.3.2005. It is further
stated that before A.Mani joined, show cause notice was issued to the writ
petitioner to rectify the defects so as to enable the Panchayat to grant the
licence for the private market and since the defects were not rectified,
A.Mani simply passed the rejection order on 11.6.2005 stating that the
petitioner has not complied with the direction of the Panchayat and not
rectified the defects. It is further indicated:
” … The subordinates of the Ettayapuram Town Panchayat have not
properly guided me and they have not brought to my notice about the directions
of this Hon’ble Court in the aforesaid Writ Petition and there was no proper
advice from my subordinates and from the local Government Pleader, who has
given opinion to the Panchayat when the previous Executive Officers were in
service. I was under the bona fide impression that since the petitioner has
not complied with the directions of the Panchayat to rectify the defects to
run the private market, as a follow up measure, I have issued a formal order
of rejection on 11 .6.2005 and all the previous acts were done by the previous
Executive Officers, namely, Saravana Velu and Nagarathinam. I state that
since there was a threat from the higher officials to run the public market on
Saturday, and to shift the private market to any other day having regard to
the augmentation of the revenues of the Panchayat and since I was not properly
instructed by my subordinates and the orders of this Hon’ble Court was not
brought to my notice by any subordinates without knowing the consequences I
have passed the order of rejection as a routine follow up action on the
actions taken by the previous Executive Officer of the said Town Panchayat.
There is no deliberate intention on my part to disobey the orders of this
Hon’ble Court and I am innocent and I may be pardoned in case if this Hon’ble
Court comes to the conclusion that I am guilty of contempt and I tender my
unconditional apology for my salutary act of passing the order of rejection of
licence on 11.6.2005. I state that the notice of contempt may be given to the
previous Executive Officers viz. Saravana Velu and Nagarathinam of the
aforesaid panchayat and I may be relieved from the contempt proceedings. ”
4. On the basis of the aforesaid affidavit, by order dated 29.7.2005
, notices were directed to be issued to Saravana Velu and Nagarathinam, who
have been impleaded as respondents-2 and 3 respectively.
5. Respondent No.2 had filed an affidavit stating that he had been
transferred even before the final order in the writ petition was passed. In
view of such affidavit, the contempt petition was closed against respondent
No.2 by order dated 1.10.2005.
6. Respondent No.3, who was the Executive Officer at the time when
the order was passed, has filed an affidavit stating that he was transferred
to another Town Panchayat and he was relieved on 22.12.2004. It has been
stated by him that by his letter dated 11.8.2004, the petitioner was informed
that writ appeal had been filed against the order and after knowing the result
of the appeal, further proceedings would be initiated. It has been further
stated that he had never given any instruction to the counsel to withdraw the
writ appeal. It is further stated:
” … Thereafter, this Respondent by his proceedings dated 12.11.2004
requested the petitioner to submit a fresh application and the petitioner
submitted a fresh application with a demand Draft for Rs.75/- on 6.5.2004
enclosing the Demand Draft of Rs.75/- dated 5.5.2004. Thereafter, this
Respondent sent another reply on 25.11.2004 stating that the Demand Draft sent
by the Petitioner has become time barred and directed the Petitioner to take a
fresh Demand Draft for which the Petitioner sent a reply on 29.11.2004 stating
that the petitioner is not in any way responsible for the invalid Demand
Draft. However, the Petitioner submitted another fresh application on 1st
December 2004 and remitted licence fee of Rs.8175/-.”
In paragraph 4 of the counter, it is stated:
“4. … the petitioner is bound to pay 15% of the amount collected from
the public as a licence fee and the Petitioner never submitted a true account
of collection for the year 2001-2002 and therefore this Respondent is not in a
position to calculate the licence fee. The Petitioner is also responsible for
the delay in getting the licence because he has failed to submit his
application till a fresh application was asked for by this Respondent and he
has also not remitted the correct licence fee by submitting a true and proper
account of his collection of the previous year 2002 and thereby prevented this
Respondent from calculating the correct licence fee and therefore the
Petitioner has also considerably contributed to the delay in the disposal of
the application for renewal. The averments to the contra in para 7 of the
affidavit are therefore legally not sustainable.
5. Apart from that this Respondent had issued a show cause
notice to the Petitioner pointing out the defects and deficiencies by his
letter dated 20.12.2004 and the Petitioner has not rectified those defects.
In the mean time this Respondent was transferred from Ettayapuram Special
Village Panchayat to Eral Special Village Panchayat.”
7. On the basis of the aforesaid statement, the third respondent has
submitted that there is no intentional or wilful disobedience by him and
because of the unhelpful attitude of the petitioner in not paying the correct
fee and not complying with the correct licence fee, there was delay in
disposing of the application and there is no wilful disobedience.
8. The attitude of the previous Executive Officers has been
highlighted in paragraph 9 of the judgment. It is obvious that the very same
attitude is reflected in the actions of the subsequent Executive Officers,
namely, Respondent No.1 as well as Respondent No.3. The successive Executive
Officers have bent upon to reject the application of the writ petitioner on
some pretext or the other. In fact, it is apparent from the averment of the
Respondent No.1 that “there was a threat from the higher officials to run the
public market on Saturday, and to shift the private market to any other day
having regard to the augmentation of the revenues of the Panchayat” shows the
scant respect of the respondents-1 and 3 as well as their superior officers
regarding the order passed by the High Court even after the appeal against
such order was dismissed as withdrawn.
9. The specific averment of the petitioner that the writ appeal was
withdrawn as otherwise the Division Bench was inclined to impose heavy costs
on the Panchayat (Appellant) has not at all been replied in any of the
affidavits filed by the respondents. A bare perusal of the history of the
litigations, which has been narrated in the main judgment in paragraph 2 and
the subsequent events clearly indicate that the Panchayat, through the
Executive Officers, is bent upon defying the order of the High Court passed at
different stages. In view of the aforesaid attitude, there is no escape from
the painful conclusion that the respondents-1 and 3, and even the superior
officers, have deliberately flouted the order of this Court by trying to
over-reach such order by whatever pretext available. There is no escape from
the conclusion that the respondents-1 and 3 have committed contempt.
Respondent No.3 was the Executive Officer, when the order was passed. He had
the occasion to comply with the order. There was long and deliberate delay in
disposing of the matter on his part and even after dismissal of the writ
appeal, he dilly-dallied in the matter on some pretext or the other.
Similarly, respondent No.1 had occasion to comply with the order subsequently,
but he has dealt the matter with a cavalier fashion and by his own admission,
the fact that he was pressurised by the superior officers, was one of the
reasons for rejection of the application.
10. In view of the above, both of them are found guilty of having
wilfully committed contempt of this Court’s order. The question of punishment
shall be considered after hearing the counsels for respondents on such aspect.
The matter shall be listed in the next list for hearing on the question of
punishment.
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Internet: Yes
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