In The High Court Of Judicature At … vs The District Collector on 10 April, 2015

Madras High Court
In The High Court Of Judicature At … vs The District Collector on 10 April, 2015
       

  

   

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE: 10.04.2015
CORAM
THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN
W.P.No.10488 of 2015
and M.P.No.1 of 2015
J.Ramakrishnan				.. Petitioner
Versus
1.The District Collector,
Uthagamandalam  643 001,
Nilgiris District.
 
2.The Joint Registrar of Co-op. Societies,
Uthagamandalam  643 001,
Nilgiris District.

3.The Deputy Registrar of Co-op. Societies,	
Uthagamandalam  643 001.
Nilgiris District.

4.S.Murthy @ Bheeman
President
J-127, Sholur Agricultural Co-op. Credit Society,
Sholur Village, Nilgiris District.	
 
5.The Secretary / Vice President,
President
J-127, Sholur Agricultural Co-op. Credit Society,
Sholur Village, Nilgiris District.		.. Respondents

Prayer: This Writ Petition is filed under Article 226 of the Constitution of India, seeking for a writ of mandamus, directing the 1st, 2nd and 3rd respondents herein to initiate appropriate legal action against the 4th and 5th respondents herein as per the representation dated 20.10.2014 for their dereliction of public duty in accordance with law.

	For Petitioner	: Mr.J.Selvarajan

	For Respondents  	: Mr.D.Venkatachalam (for R1 to R3)
			  Government Advocate 

O R D E R

By consent, the main writ petition itself is taken up for final disposal.

2. The petitioner along with one S.N.Parthiban, filed W.P.No.8607 if 2015 praying for issuance of writ of mandamus, directing the first respondent viz., The District Collector, Uthagamandalam, Nilgiris District and the 2nd respondent, viz., The Deputy Registrar of Co-operative Societies, Uthagamandalam, Nilgiris District, to take action against the respondents 4 and 5 in terms of their representation/complaint dated 16.03.2015 and this Court vide order dated 25.03.2015 has directed the second respondent to consider the complaint/representation of the petitioner dated 16.03.2015 and pass orders on merits and in accordance with law, on or before 30.03.2015 and in compliance of the order, the second respondent has also passed an order dated 28.03.2015 vide proceedings in Na.Ka.No.981/2014. The grievance expressed by the petitioner is that inspite of the said order, no action, is taken against the fourth and fifth respondent and therefore, came forward to file this writ petition.

3. Heard the submissions of Mr.J.Selvarajan, learned counsel appearing for the petitioner and Mr.D.Venkatachalam, learned Government Advocate, who accepts notice for the respondents 1 to 3 and he would submit that necessary action will be taken as per the proceedings of the second respondent dated 28.03.2015, within a period of two weeks from the date of receipt of a copy of this order and the said submission is placed on record.

4. In the result, the writ petition is disposed of and the third respondent is directed to take appropriate steps in terms of the order/proceedings of the second respondent dated 28.03.2015 made in Na.Ka.No.981 of 2014, within a period of two weeks from the date of receipt of a copy of this order, after putting the concerned persons on notice and inform the decision taken to the concerned parties. No costs. Consequently, the connected Miscellaneous Petition is closed.

10.04.2015

Internet:Yes
ars
M.SATHYANARAYANAN, J.,

ars
To

1. The District Collector,
Uthagamandalam 643 001,
Nilgiris District.

2. The Joint Registrar of Co-op. Societies,
Uthagamandalam 643 001,
Nilgiris District.

3. The Deputy Registrar of Co-op. Societies,
Uthagamandalam 643 001.

Nilgiris District.

W.P.No.10488 of 2015

10.04.2015

S.V.Karunakaran vs The District Collector on 25 March, 2015

Madras High Court
S.V.Karunakaran vs The District Collector on 25 March, 2015
       

  

   

 
 
 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED :25.03.2015

CORAM
THE HONOURABLE MR.JUSTICE B.RAJENDRAN

W.P(MD).No.365 of 2015

S.V.Karunakaran				...	Petitioner

					Vs.

1.The District Collector,
  Madurai, Madurai District.

2.The Commissioner,
  Madurai Corporation, Madurai.

3.K.Palanisamy
4.K.Naryanan
5.Dhanasekaran		 	...	Respondents

	Writ Petition filed under Article 226 of the Constitution of India for
the issuance of a writ of Mandamus directing the first and the second
respondents to own and maintain the existing cement road, laid by the
Corporation as Corporation Road in the year 2012 in R.S.No.403/7, 2nd Cross
Street, Bank Colony, Narayanapuram, Madurai Corporation as Corporation Road.

!For petitioner   : Mr.J.John

^For R.1	  : Mr.S.Chandrasekar
		Government Advocate

For R.2		   : Mr.J.Gunaseelan Muthiah
For R.3 to 5	   : Mr.T.K.Gopalan


:ORDER

When the matter is taken-up for hearing, it is fairly conceded by
all the parties that they will abide by the Civil Suit pending in O.S.No.32
of 2014, on the file of the District Munsif Court, Madurai.

2. Accordingly, this Writ Petition stands closed. No costs.
Consequently, the connected miscellaneous petition is closed.

25.03.2015
To

1.The District Collector,
Madurai, Madurai District.

2.The Commissioner,
Madurai Corporation, Madurai.

W.P(MD).No.365 of 2015

M.Swarnam vs The Managing Director on 14 November, 2011

Madras High Court
M.Swarnam vs The Managing Director on 14 November, 2011
       

  

  

 
 
 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 14/11/2011

CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU

Writ Petition (MD)No.832 of 2011

M.Swarnam				... Petitioner

Vs.

1.The Managing Director,
  Tamil Nadu Housing Board,
  Nandanam,
  Chennai-600 002.

2.The Administrative Officer-cum
  Executive Engineer,
  Tamil Nadu Housing Board,
  Trichy Housing Unit,
  Kajamalai Colony,
  Trichy-20.	

3.Mathialagan
  (R-3 impleaded as per order
  dated 14.11.2011 in M.P.No.1 of 2011)... Respondents

Prayer

Writ Petition is filed under Article 226 of the Constitution of India
praying for the issuance of a Writ of Mandamus, directing the respondents to
consider and pass orders on the written representation made by the petitioner,
dated 30.08.2010 for allotment of plot (shop No.1) under Rural Development
Scheme at Phase III, Poonga Nagar, Pudukkottai Trichy Housing Unit.

!For Petitioner	   ... Mr.G.Thalaimutharasu
^For 2nd Respondent... Mr.P.Ganapathisubramanian
For 3rd respondent ... Mr.R.Murugan

:ORDER

The petitioner is a resident of Rajagopalapuram residing at Park Nagar,
Pudukottai District. In this writ petition, she has sought for a direction to
the respondent to consider her representation dated 30.08.2011 for allotmetn of
plot described as (shop No.1) under Rural Development Scheme in Phase III,
Poonga Nagar, Pudukkottai, Trichy Housing Unit.

2.When the writ petition came up for admission on 22.01.2011, this Court
ordered notice of motion and granted private notice. In the meanwhile, one
Mathialagan, who was an allottee of the plot in question has filed M.P.(MD)No.1
of 2011 seeking to implead himself in the writ petition and that was ordered
today.

3.The case of the third respondent (impleaded) is that he had applied for
Shop No.1 in the housing unit and which was allotted to him on 30.11.2010 (long
before the petitioner filed the writ petition). Subsequent to the allotment, he
has paid the sale consideration of Rs.17,11,500/- to the Housing Board and
registered a sale deed, dated 17.02.2011 was also executed by the second
respondent and he is the lawful owner of the said premises.

4.In the guise of sending representation, the petitioner cannot seek for
any allotment. To support the avernment made in the affidavit, the third
respondent has also filed six receipts issued by the Board evidencing the sale
consideration paid by the third respondent including the sale deed dated
17.02.2011 in the form of typed set of papers. The petitioner has not
controverted these allegations.

5.The standing counsel for the Housing Board states that the petitioner
has no locus standi to seek for any allotment of the plot execlusively for her
unless the matters are advertised, the petitioner also participated in any
auction. Taking advantage of the same, the learned counsel for the petitioner
states that the allotment was made in favour of the third respondent by the
Board and no procedures have been followed and she had also made complaint to
all authorities vide representation dated 30.08.2010. That representation made
by the petitioner, do not inspire this Court to pass order in her favour. As
the representation itself started by saying that the area under the Rural
Development Scheme in Phase III, Poonga Nagar, Pudukkottai, she used the vacant
space without any disturbance and interference to the Board for more than 12
years and had also put up fencing which only indicate that she has encroached
the land without authority of the Board or the Government. Mere offering that
she is willing to give the sale price of the plot, cannot be accepted by this
Court as it is amount to make premium to the Board by the encroacher who has
come to this Court without any legal authority or legal obligation on the part
of the Board to allot the plot. This Court is not inclined to entertain the writ
petition. Hence, the writ petition stands dismissed. No costs.

sms

To

1.The Managing Director,
Tamil Nadu Housing Board,
Nandanam,
Chennai-600 002.

2.The Administrative Officer-cum
Executive Engineer,
Tamil Nadu Housing Board,
Trichy Housing Unit,
Kajamalai Colony,
Trichy-20.

Murshetha Parveen vs The District Collector on 14 November, 2011

Madras High Court
Murshetha Parveen vs The District Collector on 14 November, 2011
       

  

  

 
 
 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 14/11/2011

CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU

Writ Petition (MD)No.838 of 2011

1.Murshetha Parveen
2.Shieka Vazira				... Petitioners

Vs.

1.The District Collector,
  Theni District,
  Theni.

2.The Tahsildar,
  Bodinaiakanoor,
  Theni District.

3.S.Sannasi				... Respondents

Prayer

Writ Petition is filed under Article 226 of the Constitution of India
praying for the issuance of a Writ of Certiorarified Mandamus,  calling for the
records relating to the impugned order RTR No.291 of 2009 dated 27-04-2009
passed by the second Respondent and quash the same and consequently direct the
first Respondent to conclude the action initiated on the Petitioner's
representation dated 26-12-2007.

!For Petitioner		... Mr.B.Prasanna Vinoth for				
			    Mr.G.R.Swaminathan
^For 3rd  Respondent	... Mr.K.Annadurai
For Respondents 1 and 2	... Mr.K.Mahesh Raja
		            Government Advocate.

:ORDER

The two petitioners who are the resident of Subburaj Nagar,
Bodinaiakkanur, Theni District have filed the present writ petition seeking to
challenge the order passed by the Tahsildar, Bodinaiakanoor.

2.The second respondent herein in subdividing the property and granting
patta in favour of the third respondent, the property in which S.No.389/1C3 was
sub divided, 389/1C3A and 389/1C3B to the total extent of 15.83 acres was
divided into 1.12 acres in favour of the third respondent and 14.71 acres in
favour of the petitioners.

3.It is seen from the impugned order that the third respondent made an
application on 29.12.2008 to the Tahsildar and report was called for from the
Zonal Deputy Tahsildar, on the basis of the inspection report, dated 17.04.2009
referred to these documents, the sub division was made and the name was included
in the patta in patta No.6220.

4.The petitioners aggrieved by the sub division of the property and giving
patta to totally to a stranger, has filed the present writ petition.

5.When the matter came up on 22.01.2011, this Court ordered notice of
motion.

6.It is seen from the records that the petitioners are instituted a suit
before the District Munsif Court at Bodinaiakannur in O.S.No.50 of 2010 claiming
a relief of permanent injunction against the defendants and possession of the
property. In the schedule to the plaint, they have claimed the ownership of 17
acres and 80 cents in S.No.389/1C4 and 7 acres and 12 cents in S.No.389/1C in
the second schedule of property in S.No.391/4 to the extent of 18 acres and 20
cents in S.No.389/1C(concerned the present case) as well as the fourth item of
property in S.No.391/3 to the extent of 6 acres and 15 cents. In the suit, the
defendants are one M.Murugan, S/o.Mookathevar and M.Ammathai, W/o.Mookathevar
residing in Pilliyarkoil Street, Kuppinayakkanpatti, Bodinaiakkanur.

7.The contention raised by the petitioners in the suit was that those two
defendants have made forged documents are attempting to encroach the property
and the petitioners are the sole owners of the property and the it cannot be
interfered with by the third parties. While the suit was pending, according to
the petitioners that the third respondent on the strength of the sale deed dated
10.01.2008 purchased from Karuppathevar and his name got included wrongly as
joint pattadars in 389/1C3, 389/1C4 and this led to the said Karuppathevar had a
deed of partition on 12.04.2006 and the sale deed, dated 12.04.2006 and after he
died, the said Murugan become the owner and further division of the property
made in favour of wife of Mookathevar and Murugan, son of Mookathevar are the
defendants in the suit. One P.Selvaraj, s/o.Paramathevar had executed a sale
deed in favour of the Murugan and thus, the Murugan the first defendant came to
title over the property.

8.The third respondent filed a writ petition before this Court in
W.P.(MD)No.10462 of 2008 and in that writ petition this Court directed the
second respondent to consider his representation for sub dividing and to grant
patta. Though this Court did not express any opinion, the second respondent
without even notice to the petitioners have made the sub division of the
properties.

9.It is claimed that the ownership claimed by the third respondent to the
land in question was spurious and the very parent document under which he
derived title itself was the subject matter of the suit.

10.In any event, the petitioners have not explained as to why they have
not challenged the impugned order before the appellate authority constituted
under the Patta Pass Book Act, 1983. Merely stating that the ends of justice
will be met only by invoking the jurisdiction of this Court, the petitioner
cannot get over the appellate and revisional jurisdiction conferred on the
authorities under the Act. Further, on their own making a civil suit has already
pending against the defendants who had inherited the title from
Late.Karuppathevar. From those legal heirs, the present third respondent
acquired title.

11.Without expressing any opinion, this Court is of the view that the
petitioners must approach the appellate authority under the Patta Pass Book Act
challenging the sub division of the properties made failing which a further
revision to revisional authority. In the absence of exercising the right
conferred under the Act, this Court is not inclined to entertain the writ
petition. Hence, the writ petition stands dismissed.

12.However, if the petitioners file any appeal, the time taken before this
Court will stand excluded as per the provisions of the Limitation Act. No
costs. Consequently, connected miscellaneous petition is closed.

sms

To

1.The District Collector,
Theni District,
Theni.

2.The Tahsildar,
Bodinaiakanoor,
Theni District.

M.Balamurugan vs The Commissioner on 12 November, 2011

Madras High Court
M.Balamurugan vs The Commissioner on 12 November, 2011
       

  

  

 
 
 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 12/11/2011

CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU

W.P.(MD)No.10802 of 2006
and
M.P.(MD)Nos.2/2006 and 1/2010

M.Balamurugan,
Assistant Engineer			... Petitioner

vs.

1.The Commissioner,
   Madurai City Municipal Corporation,
   Madurai-625 001.

2.The Commissioner of Municipal
   Administration, Chepauk,
   Chennai-600 005.

3.The Secretary to Government,
   Municipal Administration and Water
   Supply Department,
   Fort St. George,
   Chennai-600 009.
4.M.R.Samy
5.S.Sethuramalingam
6.S.Chandrasekar
7.S.M.Rajendran
8.S.Arasu
9.K.Mohamed Asaraf Ali
10.L.Murugesan
11.K.Ganesan
12.Thirugnanasambandan
13.B.Baliah
14.R.Alexander
15.M.Muniyandi
16.S.Kulandaivel
17.P.Maharaja
18.M.P.Manoharan
19.M.Kamaraj
   [R-4 to R-19 impleaded  as per order of this Court
    dated 21.04.2007 made in M.P.(MD)No.2 of 2007]					
					... Respondents

PRAYER

Writ Petition is filed under Article 226 of the Constitution of
India praying for the issuance of a Writ of Certiorarified Mandamus, to call for
the records relating to the impugned proceedings in Ma.Ni.No.1/35042/2005, dated
28.02.2006 and also the consequential order passed by him in proceedings
Ma.Ni.No.1/35042/2005, dated 13.11.2006 and the proceedings dated 12.01.2007 and
18.01.2007 in Ma.Ni.No.35042/2005 of the first respondent herein, quash the same
and consequently, direct the first respondent herein to place the petitioner as
serial No.3 in the final seniority list dated 12.01.2007 and promote the
petitioner as Assistant Executive Engineer.
[Prayer amended as per order of this Court dated 09.06.2007 made in
M.P.(MD)No.3 of 2007]

!For Petitioner	  	... Mr.D.Rajendiran
^For Respondent No.1	... Mr.M.Ravi Shankar
For Respondents 2&3	... Mr.T.S.Mohammed Mohideen
			    Additional Government Pleader
For Respondents 4to9	... Mr.T.Lajapathi Roy
For Respondent No.11	... Mr.R.Rajaraman
For Respondents 15&18   ... Mr.B.Saravanan
For Respondent No.14	... Mr.Mayil Vahana Rajendran
For Respondent No.19	... Mr.S.Visvalingam
For Respondents 10,12,
13,16,17		... No Appearance
	
				             ******
:ORDER

*******
The Writ Petition is filed by the petitioner seeking to challenge an
order passed by the Commissioner, Madurai City Municipal Corporation, Madurai,
dated 13.11.2006. By the impugned communication, the petitioner was informed
that his request for considering his case for the post of Assistant Executive
Engineers cannot be considered, as the petitioner was not senior to two persons,
who were considered for the said post and he has no right to claim any seniority
over those persons whose names were included in the panel for the post of
Assistant Executive Engineers. Challenging the same, the present Writ Petition
came to be filed.

2. When the Writ Petition came up for admission on 04.12.2006, this
Court ordered notice of motion and private notice was also ordered. Pending the
notice of motion, though the petitioner sought for an order of interim stay of
the impugned proceedings, this Court, vide order dated 27.07.2009, granted an
interim order to the effect that any promotion made out of impugned panel of
seniority is, subject to the result of the Writ Petition and considering the
facts and circumstances, Registry was directed to list the matter for final
disposal on 19.08.2009. Subsequently, the petitioner filed applications to amend
the prayer and also to implead the contesting respondents as parties to the main
Writ Petition. Both the applications were allowed. As the matter was not listed
within a reasonable period, the petitioner also filed an application for fixing
an early date. For the reasons best known, the matter was not listed.

3. In the meanwhile, the first respondent has filed a counter-
affidavit dated 02.01.2007 and the fourteenth respondent by name R.Alexandar has
also filed a counter-affidavit dated 13.08.2007 together with the typed-set of
papers containing the relevant documents in support of his counter-affidavit.

4. Heard the arguments of the learned counsel appearing on either
side.

5. The contention of the petitioner was that the post in the
Municipal Corporation is governed by the provisions of the Tami Nadu Municipal
Corporation Service Rules, 1996, which are framed in terms of Section 106 of the
Madurai City Municipal Corporation Act, 1971. Under the said rules, a person,
who was appointed in service, must complete a probation and his work should be
satisfactory for a period of two years on duty within a continuous period of
three years. Rule 4 also states that a temporary promotee to higher post cannot
be authorised by virtue of promotion, if he does not possess the qualification
prescribed for such promotion.

6. The learned counsel also produced the Special Rules relating to
Tamil Nadu Municipal Corporations Engineering and Water Supply Service Rules,
1996, by which, in Clause-I and Clause-II, posts are constituted and the post of
Assistant Engineer and Assistant Executive Engineer comes under clause-II. While
the post of Assistant Executive Engineer is in Category-1 in Group-1, the post
of Assistant Engineer is in Category-1 in Group-II. The post of Assistant
Executive Engineer is filled by promotion and the qualification prescribed was a
person must have worked as an Assistant Engineer, Junior Engineer for not less
than one year in the Engineering Department of the Corporation main Office and
not less than for a period of three years in the Ward Offices. Insofar as any
ratio for promotion to the post of Assistant Executive Engineer is concerned,
Rule 5 of the Special Rules do not prescribe any ratio and it merely states that
the Assistant Engineers and Junior Engineers shall be considered as a single
category and under Rule 6, promotion to the posts shall be made in accordance
with seniority and appointment on deputation shall be made only when no
qualified person is available in the Corporation.

7. According to the counsel, the contesting respondents, who were
shown as seniors to him for promotion to the post of Assistant Executive
Engineer, did not pass the departmental tests and did not complete their
probation, within a reasonable time. While the petitioner had passed the test as
early as on 03.06.2003, some other have passed the tests only in the year 2005.
But the Corporation, for reasons best known, did not prepare any panel for
promotion to the higher posts. If only a panel was prepared in respect of each
year, in which, vacancy will arise, then there is a possibility of the
petitioner being included in the panel. Even though he might have been shown as
junior in the earlier list, he was only a qualified person at the relevant time
for the year 2003 to be included in the panel.

8. The contention that the reason given by the Corporation for not
preparing the panel was due to the ban order by the State Government cannot be
accepted, since G.O.(Ms)No.212, Personnel and Administrative Reforms (P)
Department, dated 29.11.2001, is applicable only to direct recruitment and not
to promotion and the letter following the said Government Order dated 19.12.2001
was relied upon to state that there was a specific exclusion of promotion from
the ban order and, therefore, the Corporation’s action in not preparing the
panel for the years 2003 and 2004 ought not to be accepted and the respondents
should be directed to prepare a panel in respect of those years and if there is
any vacancy for the said post, then the petitioner should be accommodated
against the said post.

9. Reliance was only placed upon a consequential letter followed by
the Government Order. But the intention of the Government Order itself was to
effect economy in expenditure and also in filling up of vacant posts to be
avoided and only exemption was granted to the post of teachers, doctors and
police. Therefore, the Corporation, either on correct understanding or on an
extended understanding of the said Government Order, decides not to fill up the
posts at the relevant time. The petitioner cannot be heard to contend all those
things. In essence, he cannot direct the Corporation to create a vacancy to
accommodate the petitioner, if there was no vacancy at the relevant time or if
the Corporation chooses not to fill up the post in a particular year, for the
reasons best known to them.

10. The contention that subsequently the persons, who were shown
above in the seniority list, had completed the probation is not a relevant
factor for the purpose of deciding as to whether the petitioner was a senior or
junior to the contesting respondents. On the other hand, Rule 5 cited by the
learned counsel for the petitioner clearly states that in the matter of filling
up the posts of Assistant Executive Engineers, all the posts of Assistant
Engineers and Junior Engineers will be considered as single category and Rule 6
clearly states that the posts shall be filled up in accordance with seniority.
Therefore, the only question to be decided was whether the petitioner was senior
to the persons, who are shown in the seniority list prepared and exhibited on
12.01.2007. The list produced by the fourteenth respondent clearly shows that
the fourteenth respondent was in serial No.12, while the petitioner is in serial
No.18. Even though both the persons were appointed on the same day, the
seniority list that has been exhibited right from the date of appointment shows
that the fourteenth respondent was senior to the petitioner, who is only in the
eighteenth rank. In the present case, the petitioner does not contend that at
the time of appointment when the Corporation prepared seniority list, such
persons have been shown as senior to him. Such questions cannot be gone into in
this Writ Petition and that is not a prayer of the petitioner.

11. On the other hand, the ground urged by the petitioner was that
he had completed probation much earlier to others and, therefore, he should be
shown as senior. This argument does not hold good. The preparation of seniority
list is different from the preparation of the panel for higher posts. The
completion of probation or otherwise will have no relevance in the matter of
preparation of seniority list, whereas in the preparation of panel for higher
posts, completion of probation may have a bearing on the said panel. In this
context, the counter-affidavit filed by the Corporation clearly refers to Rule
17 of the Tamil Nadu Municipal Corporation Service Rules to the effect that any
delay in passing of orders of completion of probation shall not monetarily
affect the approved probationers and all individuals, who have passed
departmental tests within the time provided under the Service Rules, were
declared as approved probationers by the Council of the Corporation. Therefore,
the question is whether the petitioner or the contesting respondents were
approved probationers on the day when the panel was prepared. Therefore,
promotion can be effected only in terms of the relevant rules and the contention
of the petitioner cannot be accepted.

12. In paragraph No.9 of the counter, it is stated that on
01.04.2006, which was a crucial date for preparing the seniority list for the
post of Assistant Executive Engineers, three persons are eligible, viz.,
V.Mohandoss, K.N.Damotharan and A.Mathuram and the remaining two posts were
vacant. Since the above said Mohandoss and Damotharan were included in the panel
for the existing two vacancies for the post of Executive Engineer and there was
a proposal for sanctioning five additional posts under Jawaharlal Nehru Urban
Renewal Mission Scheme, the Corporation prepared a panel containing nine
eligible members for the post of Assistant Executive Engineers from the final
seniority list of Assistant Engineers and Junior Engineers dated 18.07.2006. It
was sent to the State Government for approval. It was also stated that the
fourteenth respondent by name Alexander had passed the departmental test in the
year 2003. Therefore, his name could not be included in the panel for the post
of Assistant Executive Engineer without complying with the pre-condition of
working as Assistant Engineer in the main office for a period of minimum one
year.

13. The contention that the Corporation did not prepare the panels
deliberately for the year 2003, 2004 and 2005 was denied. It was stated that
even at the relevant time, two posts of Assistant Engineers were vacant. But, at
the relevant time, the petitioner was not eligible for being included in the
panel for the post of Assistant Executive Engineers. For the period from 2003 to
2006, there was a ban order by the State Government and even if any panel is
prepared, it could not have been given effect to, in view of the ban order. The
similar stand was taken by the fourteenth respondent in his counter affidavit.
The fourteenth respondent also additionally stated that at the relevant time,
the petitioner was kept under suspension for certain misconduct. However, it is
unnecessary to go into the other details, since the petitioner has not made out
any case either for altering the seniority list or for inclusion of his name in
the panel on the earlier years.

14. In view of the reasons stated above, the Writ Petition cannot be
countenanced by this Court. Hence, the Writ Petition stands dismissed.
Consequently, the connected miscellaneous petitions are closed. No costs.

SML

To

1.The Commissioner,
Madurai City Municipal Corporation,
Madurai-625 001.

2.The Commissioner of Municipal
Administration, Chepauk,
Chennai-600 005.

3.The Secretary to Government,
Municipal Administration and Water
Supply Department,
Fort St. George,
Chennai-600 009.

The Management vs The Presiding Officer on 11 November, 2011

Madras High Court
The Management vs The Presiding Officer on 11 November, 2011
       

  

  

 
 
 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 11/11/2011

CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU

Writ Petition (MD)No.11752 of 2009

The Management,
T.T.15, Tamil Nadu Electricity Board
Employees Co-operative
Thrift and Credit Society Ltd.,
Arignar Anna Building,
Tirunelveli-627 011.			... Petitioner

Vs.

1.The Presiding Officer,
  Labour Court,
  Tirunelveli.

2.B.Naarambu Nathan			... Respondents

Common Prayer

Writ Petitions are filed under Article 226 of the Constitution of
India praying for the issuance of a Writ of Certiorarified Mandamus, calling for
the records in pursuant to the impugned order passed by the 1st respondent in
claim petition No.26 of 2003, dated 28.08.2008 and quash the same.

!For Petitioner		... Mr.S.M.Subramaniam
^For 2nd Respondent 	... Mr.Ms.D.Geetha
	
:ORDER

The writ petition is filed by Tamil Nadu Electricity Board Employees Co-
operative Thrift Credit Society at Tirunelveli. In this writ petition, the
petitioner society challenges an order of the Labour Court, Tirunelveli in
C.P.No.26 of 2003, dated 28.08.2008.

2.When the writ petition came up on 17.11.2009, this Court ordered notice
of motion. Pending the notice of motion, no interim order was passed.
Subsequently, when the matter came up on 29.10.2011, this Court found that the
management of the petitioner society filed only a gist order made in C.P.No.26
of 2003 as the impugned order. It was pointed out by this Court that a gist
order supplied by the Labour Court at free of cost pursuant to the Rule 54(2) of
the Tamil Nadu Industrial Disputes Rules, 1958 will contain only the operative
portion of the order and will not contain reasons for the order.

3.When this was pointed out to the learned counsel for the petitioner, the
learned counsel filed a copy of the order made by the Labour Court,
Tirunelveli, dated 29.11.2001, claiming to be the certified copy of the order
under challenge. In that order, the Labour Court had passed a common order in
respect of 8 workmen in C.P.No.56 to 63 of 1989 filed by similarly placed
persons including the 2nd respondent (C.P.No.57/99). But in the present case,
the workman (Narumbunathan-R2) filed C.P.No.19 of 2003 and which was not the
subject matter of the common order passed by Labour Court, dated 29.11.2001.

4.It is very unfortunate that the management at the first instance files a
gist order and gets an admission. Thereafter when asked to file a certified
copy, produces totally a different order which is not the subject matter of the
challenge herein. It was due to over anxiety on the part of the learned counsel.
As against the earlier common order, this Court in a batch of writ petitions in
W.P.Nos.35491 and 35493 of 2002, by order dated 23.12.2010 allowed the writ
petitions and set aside that common order.

5.However, after this Court insisted the petitioner to produce a certified
copy of the order passed in C.P.No.26 of 2003, which is the subject matter of
challenge in this writ petition. It must be noted that a writ in the nature of
Certiorari, if it is filed against a particular order of a quasi judicial or
judicial authority, unless and until that order is produced before the Writ
Court cannot review the order and find out whether the order suffers from any
material irregularities so as to exercise its judicial review power conferred
under Article 226 of the Constitution.

6.After seeking adjournment of the case, the petitioner produced a
certified copy of the order made in C.P.No.26 of 2003, dated 28.08.2008. A
perusal of the order shows that in that case, the Court computed amount on the
basis of the earlier case filed by the second respondent workman in C.P.No.57 of
1999. But in the second claim petition was filed the second respondent had
examined as P.W.1 but since no one appeared for the management, they were set
exparte. When an application to set aside the exparte order was also filed, it
was allowed on costs to be paid to the workman. But on the date of passing of
the order i.e., 28.08.2008 as the costs were not paid and as there was no
representation, that restoration application was dismissed for default.
Therefore, the Court held that there was no ground to set aside its earlier
order. C.P.No.26 of 2003, was filed claiming wages for the period from
01.07.1999 to 30.09.2002 and amount was computed on the strength of the earlier
order in C.P.No.57 of 1999 to the tune of Rs.1,03,256/-.

7.The question is to be decided whether the impugned order calls for any
interference.

8.When series of lapses noted above, clearly showed that the management
was not seriously interested in pursuing their legal claim. When they defaulted
before the Labour Court and the Labour Court itself was inclined to allow was on
payment small costs. The management failed to utilise that opportunity and
remained exparte. There is no gain saying that the earlier order in C.P.No.57
of 1999 was set aside by this Court in W.P.No.35491 of 2002 and batch of cases,
by a common order, dated 23.12.2010, the present order also must be set aside.
On the other hand, the management’s request for reopening was allowed by the
Labour Court. The fact that the previous claim was negatived is not a ground to
interfere with the subsequent order. But at the same time, the workman cannot be
allowed to get away by an exparte order computing a sum of more than one lakh
rupees due to the default by the management.

9.Even in the affidavit filed in support of the writ petition, the
petitioner had not stated that it was an exparte order and they have not
explained as to why they have failed to pay the costs. The affidavit is filed in
a mechanical fashion copying from earlier affidavits. This practice of
affidavits sworn being to by parties without application of mind and without
reference to the facts of that particular case must stop. The learned counsels
must devote more attention in the preparation of the pleadings for the parties.

10.However, in the light of the circumstances set out above and in the
interest of justice, this Court is inclined to set aside the order in C.P.No.26
of 2003, dated 28.08.2008. Since the workman was summoned to this Court for no
default on his side and in view of series of blunders committed in this writ
petition, this Court is inclined to order a cost of Rs.5,000/-.

11.However, the order dated 28.08.2008 in C.P.No.26 of 2003 is set aside
on the condition that the petitioner pays Rs.5000/- to the learned counsel for
the second respondent towards litigation costs. Once, it is set aside, the
matter will have to be remanded to the Labour Court, Tirunelveli for fresh
disposal. But no Court order an ineffecutal remand. In the impugned order, the
Labour Court has computed the claim only based upon the previous order in
C.P.No.57 of 1999 being the earlier claim petition filed by the first
respondent. When it was challenged before this Court in W.P.No.35491 of 2002,
the same was allowed and the order of the Labour Court was set aside by this
Court on 23.12.2010. However, any remand will be futile and ritualistic.
Therefore, this Court is not inclined to remit the matter. However, the
petitioner is allowed to work out his rights before an appropriate forum.

12.The writ petition is allowed to the extent indicated above, with cost
of Rs.5,000/-. Consequently, connected miscellaneous petition is closed.

sms

To
The Presiding Officer,
Labour Court,
Tirunelveli.

S.Durgeshwaran vs The Presiding Officer on 11 November, 2011

Madras High Court
S.Durgeshwaran vs The Presiding Officer on 11 November, 2011
       

  

  

 
 
 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 11/11/2011

CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU

W.P.(MD)No.7272 of 2011
and
M.P.(MD)No.1 of 2011

S.Durgeshwaran				... Petitioner

vs.

1.The Presiding Officer,
   Employees Provident Fund
   Appellate Tribunal,
   New Delhi.

2.The Assistant Provident
   Fund Commissioner,
   Employees Provident Fund Organisation,
   Tirunelveli.

3.The Recovery Officer,
   Employees Provident Fund Organisation,
   Sub-Regional Office,
   Bhavishyanidhi Bhawan,
   NGO 'B' Colony, Tirunelveli-627 007.	... Respondents

PRAYER

Writ Petition is filed under Article 226 of the Constitution of
India praying for the issuance of a Writ of Certiorari to call for the
proceedings of the first respondent in A.T.A.No.303(13)2011, dated 25.04.2011
and quash the same as illegal.

!For Petitioner	  	... Mr.P.Pethu Rajesh
^For Respondents	... Mr.K.Murali Shankar
	
				             ******

:ORDER

*******

When the petitioner mentioned for extension of interim order, this
Court was not inclined to grant extension of interim order and this Writ
Petition is a clear abuse of process of law. The very same petitioner earlier
filed Writ Petitions in W.P(MD).Nos.6174, 11472 and 1700 of 2008 before this
Court, challenging the order demanding dues including the distraint proceedings
initiated. All the three Writ Petitions were dismissed by this Court stating
that if the petitioner is aggrieved, the effective remedy by way of appeal under
Section 7-I of the Employees’ Provident Funds and Miscellaneous Provisions Act,
1952 [hereinafter referred to as “the Act”] before the Employees’ Provident Fund
Tribunal alone is available and he cannot dispute before this Court regarding
the partnership business liability as well as the status of the petitioner in
the said partnership.

2. Even though the order was made as early as on 06.10.2010, the
petitioner moved the Division Bench with Writ Appeals in W.A.(MD)Nos.221 to 223
of 2011. When the Writ Appeals themselves were taken up for hearing, for the
reasons best known, the petitioner withdrew the Writ Appeals with liberty to
file appeals under Section 7-I of the Act and he has also made an endorsement in
the appeal bundles. Accepting the endorsement made by the counsel, the Division
Bench dismissed the Writ Appeals with liberty to file appeals. The original
order of assessment was also handed over and he was directed to file appeals
within two weeks vide order dated 01.03.2011.

3. Thereafter, the petitioner exhausted the right of appeal under
Section 7-I before the Employees’ Provident Fund Tribunal and the said appeal
was taken on file as A.T.A.No.303(13)2011. As a pre-requisite for entertaining
the appeal, the Tribunal directed the petitioner to deposit 40% of the assessed
amount within two months and in case of such deposit, the respondents,
Employees’ Provident Fund authorities were directed not to take any coercive
measures till the disposal of the appeal presented. The counsel for the
respondent Provident Fund Department opposed the admission of the appeal.
However, in any event, the appeal was admitted and the interim order was granted
on a conditional basis. It is once again the petitioner is before this Court
challenging the interim order dated 25.04.2011. It is not clear as to how the
petitioner can have a second round of litigation, that too, against the
conditional interim order passed by the Tribunal. Under Section 7-O of the Act,
no appeal by the employer shall be entertained by a Tribunal, unless he has
deposited 75% of the amount due from him as determined by an officer referred to
in section 7-A. The proviso to Section 7-O gives liberty to the Tribunal, for
reasons to be recorded in writing, to waive or reduce the amount to be deposited
under the said Section.

4. In the present case, the Tribunal, in exercise of its discretion,
had only directed the petitioner to deposit 40% and not the entire 75% and there
cannot be any further judicial scrutiny on the conditional order of stay granted
by the Tribunal. The petitioner cannot state that such an order is reviewable
before this Court and raise once again the contentions, which weighed in the
earlier round of litigation, for the purpose of getting further reduction. In
essence, the petitioner cannot improve his terms of stay order, which is granted
by the Tribunal, when the main appeal is pending under Section 7-I, for which,
he took permission from the Division Bench to move the Tribunal, even though, at
the relevant time, the time for filing an appeal has already expired. Having
exhausted the right of appeal and also having made the Tribunal to exercise its
discretion in granting interim stay with reduced deposit, no further judicial
review is permissible.

5. The Supreme Court, vide its judgment in Raj Kumar Shivhare v.
Assistant Director, Directorate of Enforcement reported in (2010) 4 SCC 772, has
held that if an appeal is provided under the special enactment, it has to be
exhausted by an aggrieved party and merely because the appeal provides for a
pre-deposit, that will not make the appeal illusory and on that ground, the High
Court under Article 226 of the Constitution of India cannot entertain any Writ
Petition. In paragraph Nos.30 to 35, 39 and 40, the Supreme Court had observed
as follows:

“30.The argument that writ jurisdiction of the High Court under Article
226 of the Constitution is a basic feature of the Constitution and cannot be
ousted by parliamentary legislation is far too fundamental to be questioned
especially after the judgment of the Constitution Bench of this Court in L.
Chandra Kumar v. Union of India7. However,
that does not answer the question of
maintainability of a writ petition which seeks to impugn an order declining
dispensation of pre-deposit of penalty by the Appellate Tribunal.

31.When a statutory forum is created by law for redressal of grievance and
that too in a fiscal statute, a writ petition should not be entertained ignoring
the statutory dispensation. In this case the High Court is a statutory forum of
appeal on a question of law. That should not be abdicated and given a go-by by a
litigant for invoking the forum of judicial review of the High Court under writ
jurisdiction. The High Court, with great respect, fell into a manifest error by
not appreciating this aspect of the matter. It has however dismissed the writ
petition on the ground of lack of territorial jurisdiction.

32.No reason could be assigned by the appellant’s counsel to demonstrate
why the appellate jurisdiction of the High Court under Section 35 of FEMA does
not provide an efficacious remedy. In fact there could hardly be any reason
since the High Court itself is the appellate forum.

33.Reference may be made to the Constitution Bench decision of this Court
rendered in Thansingh Nathmal v. Supdt. of Taxes8, which was also a decision in
a fiscal law. Commenting on the exercise of wide jurisdiction of the High Court
under Article 226, subject to self-imposed limitation, this Court went on to
explain: (AIR p. 1423, para 7)
“7. ? The High Court does not therefore act as a court of appeal against
the decision of a court or tribunal, to correct errors of fact, and does not by
assuming jurisdiction under Article 226 trench upon an alternative remedy
provided by statute for obtaining relief. Where it is open to the aggrieved
petitioner to move another tribunal, or even itself in another jurisdiction for
obtaining redress in the manner provided by a statute, the High Court normally
will not permit by entertaining a petition under Article 226 of the Constitution
the machinery created under the statute to be bypassed, and will leave the party
applying to it to seek resort to the machinery so set up.”

(emphasis added)
The decision in Thansingh8 is still holding the field.

34.Again in Titaghur Paper Mills Co. Ltd. v. State of Orissa9 in the background
of taxation laws, a three-Judge Bench of this Court apart from reiterating the
principle of exercise of writ jurisdiction with the time-honoured self imposed
limitations, focused on another legal principle on right and remedies. In para
11, at AIR p. 607 of the Report, this Court laid down: (SCC pp. 440-41, para 11)
“11. ? It is now well recognised that where a right or liability is
created by a statute which gives a special remedy for enforcing it, the remedy
provided by that statute only must be availed of. This rule was stated with
great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford10
in the following passage: (ER p. 495)
‘? There are three classes of cases in which a liability may be
established founded upon a statute. ? But there is a third class viz. where a
liability not existing at common law is created by a statute which at the same
time gives a special and particular remedy for enforcing it. ? The remedy
provided by the statute must be followed, and it is not competent to the party
to pursue the course applicable to cases of the second class. The form given by
the statute must be adopted and adhered to.’
The rule laid down in this passage was approved by the House of Lords in Neville
v. London Express Newspapers Ltd.11 and has been reaffirmed by the Privy Council
in Attorney General of Trinidad and Tobago v. Gordon Grant and Co. Ltd.12 and
Secy. of State v. Mask and Co.13 It has also been held to be equally applicable
to enforcement of rights, and has been followed by this Court throughout. The
High Court was therefore justified in dismissing the writ petitions in limine.”

35.In this case, liability of the appellant is not created under any
common law principle but, it is clearly a statutory liability and for which the
statutory remedy is an appeal under Section 35 of FEMA, subject to the
limitations contained therein. A writ petition in the facts of this case is
therefore clearly not maintainable.

39.In the instant case none of the aforesaid situations are present.
Therefore, principle laid down in Ratan case15 applies in the facts and
circumstances of this case. If the appellant in this case is allowed to file a
writ petition despite the existence of an efficacious remedy by way of appeal
under Section 35 of FEMA this will enable him to defeat the provisions of the
statute which may provide for certain conditions for filing the appeal, like
limitation, payment of court fee or deposit of some amount of penalty or
fulfilment of some other conditions for entertaining the appeal. (See para 13 at
SCC p. 408.) It is obvious that a writ court should not encourage the aforesaid
trend of bypassing a statutory provision.

40.The learned counsel for the appellant relied on a decision of this
Court in Monotosh Saha v. Enforcement Directorate16. That was a decision
entirely on different facts. In that decision Saha preferred an appeal before
the Appellate Tribunal with a request for dispensing with requirement of pre-
deposit, but the Tribunal directed the deposit of 60% of the penalty amount
before entertaining the appeal. When an appeal was preferred before the High
Court under Section 35 of FEMA, the same was dismissed by the High Court holding
that no case for hardship was made out either before the Tribunal or before it.
In the background of those facts, this Court observed that since pursuant to
this Court’s interim order Rs 10 lakhs have been deposited with the Directorate,
the appellant was directed to furnish further such security as may be stipulated
by the Tribunal and directed that on such deposit the Tribunal is to hear the
appeal without requiring further deposit.”

6. In the present case, this Court is satisfied that the petitioner
had invoked the Tribunal’s discretion for the reduction of the pre-deposit. He
cannot have any further concession, as it is the second round of litigation and
the earlier attempt was terminated by this Court. Hence, there is no case made
out to entertain the present Writ Petition. Hence, the Writ Petition stands
dismissed. Consequently, the connected miscellaneous petition is closed. No
costs.

SML

To

1.The Presiding Officer,
Employees Provident Fund
Appellate Tribunal,
New Delhi.

2.The Assistant Provident
Fund Commissioner,
Employees Provident Fund Organisation,
Tirunelveli.

3.The Recovery Officer,
Employees Provident Fund Organisation,
Sub-Regional Office,
Bhavishyanidhi Bhawan,
NGO ‘B’ Colony, Tirunelveli-627 007.

Alageswari vs Athimuthu Manoharan on 10 November, 2011

Madras High Court
Alageswari vs Athimuthu Manoharan on 10 November, 2011
       

  

  

 
 
 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 10/11/2011

CORAM
THE HONOURABLE MR.JUSTICE G.RAJASURIA

S.A.(MD) No.43 of 2006
and
C.M.P.(MD) No.284 of 2006
and
M.P.(MD) No.1 of 2009

Alageswari			 ... Appellant/Plaintiff

Vs.

1.Athimuthu Manoharan
2.Grace Vedamanicka Nadar
3.Navaneethi			 ... Respondents/Defendants

Prayer

Second Appeal filed under Section 100 of the  Code of Civil Procedure,
against the judgment and decree of the learned Principal District Judge,
Thoothukudi dated 18.06.2003 in A.S.No.14 of 2002 confirming the judgment and
decree of the learned Principal District Munsif, Thoothukudi dated 26.09.2001 in
O.S.No.319 of 1997.

!For Appellant 	      ... Mr.
		          Senior Counsel for
		          Mr.S.Kadarkarai
^For 1st Respondent   ... Mr.S.Sivathilakar
For Respondents 2 & 3 ... Mr.S.Subbiah
* * * * *

:JUDGMENT

This Second Appeal is focussed by the original Plaintiff animadverting
upon the judgment and decree dated 18.06.2003, passed in A.S.No.14 of 2002 by
the learned Principal District Judge, Thoothukudi in confirming the judgment and
decree dated 26.09.2001, passed in O.S.No.319 of 1997 by the learned Principal
District Munsif, Tuticorin.

2. The parties, for the sake of convenience, are referred to hereunder
according to their litigative status and ranking before the trial Court.

3. The facts giving rise to the filing of this Second Appeal as stood
exposited from the records would run thus:

The plaintiff filed the suit for specific performance of the suit
agreement to sell dated 20.12.1995, which emerged between D1, the Power Agent of
D2 and the plaintiff.

4. The 1st defendant filed written statement, supporting the case of the
plaintiff.

5. The 2nd defendant filed the written statement resisting the suit on the
ground that the agreement to sell is an anti-dated document, which emerged after
the cancellation of the power deed executed by D2 in favour of D1.

6. The 3rd defendant, who purchased the second item of the suit
properties, separately filed written statement supporting the contentions of D2.

7. Whereupon, relevant issues were framed by the trial Court.

8. During trial, the plaintiff examined herself as P.W.1 along with P.W.2
and marked Exs.A.1 to A.5 on her side. The defendants 1 and 2 examined
themselves as D.W.1 and D.W.2 along with D.W.3 and marked Exs.B.1 to B.32 on
their side.

9. Ultimately, the suit was dismissed by the trial Court, as against which
the appeal was filed by the plaintiff for nothing but to be dismissed.

10. Being aggrieved by and dissatisfied with the judgment and decree of
the first appellate Court, the plaintiff preferred this Second Appeal on various
grounds, suggesting the following substantial questions of law:
“(A) Whether the 2nd defendant is entitled to let in evidence against the
terms and conditions of registered power of attorney deed dated 18.05.1995?
(B) Whether the 2nd defendant has power to cancel the deed of power of
attorney especially when she has received the entire sale consideration under
Ex. 12 which is not disputed?

(C) Whether the finding of the lower court that the sale agreement is not
proved in view of the admitted fact that the plaintiff is in possession?
(D) Whether the courts below right in holding that the suit property are
not in existence when Annakannu Ariso Rani has not questioned the same?
(E) Whether D2 has right to sell the property under Ex.B.14 in view of
Ex.B.12?

(F) Whether the lower appellate court is correct dismissing the
application to appoint commissioner to measured and note to physical features of
the suit property?”

(Extracted as such)

11. My learned Predecessor appointed an advocate Commissioner, during the
pendency of this Second Appeal to visit the suit property, measure it and submit
a report. Wherefore the Advocate Commissioner also submitted a report.

12. I would like to fumigate my mind with the principles as found
enunciated and enshrined in the following decisions of the Honourable Apex
Court:

(i) Hero Vinoth (Minor) v. Seshammal reported in (2006) 5 Supreme Court
Cases 545.

(ii) Kashmir Singh v. Harnam Singh and another reported in 2008 (4) SCALE

300.

(iii) State Bank of India and others v. S.N.Goya reported in 2009-1-L.W.1.

13. The aforesaid precedents would indicate and exemplify that unless any
substantial question of law is involved, the question of entertaining a Second
Appeal would not arise. Having that in mind, I heard both sides.

14. Learned Senior Counsel for the appellant/ plaintiff advanced his
arguments, the pith and marrow of which would run thus:
Both the Courts below failed to take into consideration the relevant
documents in the proper perspective in deciding the lis. Quite against the terms
and conditions of the power deed, D2 adduced evidence before the Court. D2 had
no power to cancel the power deed executed by D2 in favour of D1. Even though
the plaintiff has been in possession and enjoyment of the suit property, the
Courts below held as though the agreement to sell was not proved to be a genuine
one. The Courts below were not justified in holding that the first item of the
suit properties is a non-existent one. Annakannu Athirshtarani, already
purchased property from D2 through D1 on the western side of the entire extent
of 12 cents of land. D2 had no right to sell under Ex.B.14, the eastern extreme
of the said 12 cents of land in view of Ex.B.12 the agreement having been
executed by D2 in favour of D1. The building bearing door Nos.2/127A has been in
existence long prior to the emergence of the power deed and the suit agreement
to sell. However, both the Courts below failed to take note of the said fact and
simply went tangent in deciding against the plaintiff.

15. The learned counsel for D1 would support the arguments of the learned
Senior Counsel for the plaintiff.

16. In a bid to shoot down and mince meat, torpedo and pulverise the
arguments as put forth and set forth on the side of the plaintiff and D1, the
learned Counsel for D2 and D3 would advance his arguments, the long and short of
it would run thus:

(a) As against the concurrent findings of the fact that Ex.A.1 – the
agreement to sell is an anti-dated and cooked up document, no Second Appeal
would lie and absolutely there is no perversity or illegality in such finding.

(b) Ex.A.1 is apparently found written on non-judicial stamp paper dated
20.12.1995, alleged to have been purchased from a stamp vendor in Srivilliputhur
but actually the document is purported to have been executed at Thoothukudi,
which is 118 Kms. away from Srivilliputhur.

(c) In fact the unregistered sale deed – Ex.A.2, purported to have emerged
on 08.08.1997 in favour of the plaintiff at the instance of D1 is also a cooked
up document, which came into existence only after the cancellation of the power
deed – Ex.A.3 by D2 as per Ex.B.25 dated 03.10.1997. The scribe as well as the
attesting witnesses in A1 and A2, is one and the same.

(d) The Courts below adverted to all these documents appropriately and
appositely, properly and correctly and rendered a finding of fact that after
cancellation of Ex.A.3 – the power deed dated 18.05.1995, by D2 as per Ex.B.25
dated 03.10.1997, those documents, viz. Exs.A.1 and A.2 were concocted and
brought about.

(e) D1 had not sought any relief based on Ex.B.12. D.W.2 (D2), explained
and expounded as to how D2 was brought about illegally by D1. According to her,
D1 misused the confidence reposed by D2 on D1 and got her signature while she
was signing one other deed and in fact she did not receive Rs.38,500/- from D1
as full and final settlement of the sale consideration in respect of the suit
property.

(f) The power deed Ex.A.3 does not contemplate the first item of the suit
properties as found set out in Ex.A.1, the suit agreement.
Accordingly, the learned counsel would pray for the dismissal of the Second
Appeal.

17. The nutshell admitted and unassailable or at least the undeniable
facts absolutely necessary and germane for the disposal of the Second Appeal
would run thus:

D2 claimed to be the original owner of 12 cents of land. But the
Commissioner’s Report would reveal that in stricto-sensu, she was owning only an
extent of 11.43 cents on ground. Admittedly, as per Ex.A.3, dated 18.05.1995,
the power deed executed by D2 in favour of D1, the later executed a sale deed in
favour of Annakkan Athirshtarani an extent of 3 cents of land on the western
extreme of the total extent of the said 12 cents. As such, there remained only 9
cents. D2 directly sold to D3 an extent of 6 cents to the east of the aforesaid
3 cents. Ex.A.3, the power deed bears the followed description of properties:
“jgrpy; tptuk;

J]j;Jf;Fo gjpt[ khtl;lk;, J]j;Jf;Fo BkY]h; rhh;gjpthsh; rufk;, J]hj;Jf;Fo
jhYfh, Bfhuk;gs;sk; fpuhkk; gFjp 1 Bfhuk;gs;sk; Cuhl;rp kd;wk; 2tJ thh;L bjw;Fj;
bjUtpy; i& fpuhkk; FoapUg;g[ ej;jk; rh;Bt 28 ek;ghpy; vdf;F ghj;jpag;gl;l
kidapy; Bkw;fila cs;s kid tPL tifawhf;fSf;F khyhtJ:

fpHBky; bjUt[f;F				      tlf;F
ehsJ Bjjpapy; ehd; etepjp mth;fSf;F fpiuak;
	bra;J bfhLf;Fk; kidf;Fk;	       Bkw;F
31/4 ek;ghpy; cs;s kid tPL tifawhf;fSf;F						
fpHf;F
gp.uh$ghz;o, gp.Btjkzp nth;fs; kid tPL
		tifawhf;fSf;F		       bjw;F

ne;j ehd;F khYf;Fs;gl;l kid brz;L 3f;F rJuo 1306.87 cs;s kida[k; i&
kidapy; fspkz; Rth; itj;J Bky; XL bghl;l gq;rhaj;J Bghh;L 2/127 ek;gh; Vw;gl;l
tPLk;, kpd; nizg;g[k;, gps&t[l; ff;T!; cs;go nJt[k;,

2. i& i& tptug;go i& rh;Bt ek;ghpy; fpHf;fila cs;s kidf;F khy;:

fpHBky bjUt[f;Fk;				      tlf;F
gp.uh$ghz;o, gp.Btjkzp nth;fs; kidtPL
	tifawht[f;Fk;			       bjw;F
bjd;tly; re;Jf;Fk;			       Bkw;F
ehsJ Bjjpapy; etepjp mth;fSf;F fpiuak;
	bra;J bfhLf;Fk; kidf;Fk;	      fpHf;F

ne;j ehd;F khYf;Fs;gl;l kid brz;L 3 mst[s;s kida[k; Mf bkhj;jk; mapl;lk;
2f;F brz;L 6 mst[s;s kida[k; jgrpy; tptuk; rhp. i& brhj;J jw;fhy rg;otp&d;go
rh;Bt 28/5 ek;ghpy; cs;sJ.”

18. Ex.B.12, the agreement dated 20.05.1995 emerged between D1 and D2;
wherein the recitals would demonstrate and display, exemplify and project that
D1 paid a sum of Rs.38,500/- as full sale consideration for the properties found
described in Ex.A.3 to D2, which fact D2 would dispute as though she only signed
Ex.B.12 unknowingly and that she did not receive any amount much less the said
sum of Rs.38,500/- from D1.

19. The contention of the plaintiff is that on 20.12.1995, D1 executed
Ex.A.1 – the agreement to sell, in respect of the following items of properties:
“jgrpy;

J]j;Jf;Fo hpo, J]j;Jf;Fo BkY]h; rg;;hp rufk;, J]hj;Jf;Fo tl;lk;,
Bfhuk;gs;sk; fpuhkk; gFjp-1 Bfhuk;gs;sk; Cuhl;rp kd;wk; 2tJ thh;L bjw;F bjUtpy;
i& fpuhkk; FoapUg;g[ ej;jk; rh;Bt 28 ek;ghpy; brzL 12y; Rthd;jhuUf;F
ghj;jpag;gl;l kidapy; Bky;g[uk; kj;jpapy; kid kid tPL tifawhf;fSf;F khy;:
md;df;fd; mjph;&luhzpf;F ehd; fpiuak; bra;J bfhLj;jpUf;Fk; kid tPL
tifawhf;fSf;Fk; fpHf;F, etepjp mth;fs; kid epyj;Jf;Fk; Bkw;F, fpHBkByhoa
Buhl;Lf;Fk; tlf;F, gp.uh$ghz;o, gp.Btjkzp nth;fs; kidtPL tifawhf;fSf;Fk; bjw;F,
ne;j ehd;F khYf;Fs;g;gl;l kid epyk; fpHBky; tljiy ypA;!; 19 i& bjd;jiy ypA;!; 17
fpHBky; tlg[uk; brhe;jr;Rth; kuhkj;J Btiy bra;a bjd;tlypy; tlf;fila
Bghlg;gl;Ls;s 3 ypA;!; mfy kid cl;gl Bky;jiy ypA;!; 66, i& fPH;jiy ypA;!; 66f;F
rJu ypA;!; 1,188f;F rJuo 517.492f;Fr; brz;L 1.188 mst[s;s kid epyKk; mjpy;
fl;oa[s;s fy;fhiuf;fl;L Xl;lLf;F Bghl;l gq;rhaj;J 2/127V ek;gh; Vw;gl;l tPL 1k;
nJt[k;,

2) i& i& i& fpuhkk;, FoapUg;g[ ej;jk;, rh;Bt 28 ek;ghpy; brz;L 12y;
Rthd;jhh;f;F ghj;jpag;gl;l kidapy; fpHf;fila kid epyj;Jf;F khy;: etepjp mth;f;s
kid epyj;jpw;Fk; fpHf;F, bjd;tly; re;Jf;Fk; Bkw;F, fpHBkByhoa Buhl;Lf;F tlf;F,
gp.Btjkzp mth;fs; kid tPL tifawhf;fSf;Fk; bjw;F, ne;j ehd;F khYf;Fs;g;gl;l kid
epyk; fpHBky; tljiy ypA;!; 27 i& bjd;jiy ypA;!; 30 tlg[uk; fpHBky; brhe;jr;Rth;
kuhkj;J Btiy bra;a bjd;tlypy; tlf;fila Bghlg;gl;Ls;s 3 ypA;!; mfy kid cl;gl
Bky;jiy ypA;!; 67 i& fPH;jiy ypA;!; 67f;F rJu ypA;!; 1909.5f;F rJuo 831.778f;F
brz;L 1.90 mst[s;s kid epyKk; mjpy; tlg[uk; fpHBky; brhe;j fhk;gt[z;l; RtUk;,
thifkuk; 1k;, ePuof; fHpg;gplk; 1k; cs;go jgrpy; tpguk; rhp.
i& brhj;J ehsJ cl;ghptpd;go rh;Bt 28/5 ek;ghpy; cs;sJ. J]hj;Jf;Fo
K.kh.c.ePjpkd;w K.c.t.vz;.545/91 Bfhh;l; fhgp b$uhf;!; i& Rthd;jhh; vdf;F vGjpf;
bfhLj;j 108/1995 ek;gh; b$duy; gth; gj;jpuk; b$uhf;!; fhgpa[k; Rthd;jhh; fpBu!;
khpak;khs; bgaUf;Fhpa gl;lht[k; ehd; jA;fsplk; je;Js;Bsd;.”

20. It has to be noted that the first item of the properties as found set
out in Ex.A.1 does not tally with the first item of the properties found
exemplified in Ex.A.3. In fact, after selling the said 6 cents of land in the
middle, which is to the east of the property sold to said Annakkan
Athirshtarani, there was no land. However, the building bearing door No.2/127A
is claimed to be in existence as per Ex.A.1. Under the earlier sale deed in
favour of Annakkan Athirshtarani, there is no reference to the structure bearing
door No.2/127A and for that matter the building bearing door No.2/127A is not
contemplated in the power deed also.

21. Based on such fact, the learned counsel for D2 and D3 would vehemently
argue that D1, the power of attorney was not authorised to sell the land as well
as the building bearing door No.2/127A at all, but he purely for the purpose of
putting D2 in trouble did choose to incorporate such description as the first
item of the properties in Ex.A.1. No doubt that is also a fact to be considered.
Apparently there was no land belonged to D2 at all to the west of the said 6
cents sold by D2 to D3 to the east of the 3 cents sold to Annakkan
Athirshtarani.

22. Admittedly, the plaintiff is none but D1’s wife’s brother and that
fact was taken note of by the Courts below and also commented upon that there
was nothing to indicate that out of the sale consideration of Rs.21,000/-, a sum
of Rs.20,000/- was paid by plaintiff in favour of D1. No doubt, one of the
attesting witness to Ex.A.1 as well as Ex.A.2 – Pandi was examined and cross-
examined. But there is no adequate explanation at all as to why for the purpose
of scribing Ex.A.1, the non-judicial stamp paper should have been purchased only
at Srivilliputthur, which is 118 Kms. from Thoothukudi, the situs of execution
of Ex.A.1.

23. If really Ex.A.1 emerged on 20.12.1995 genuinely and that too in
consideration of having paid a sum of Rs.20,000/- out of the total sale
consideration of Rs.21,000/- by the plaintiff to D1, certainly neither the
plaintiff nor D1 would have waited further for completing the sale in the form
of a pukka registered sale deed. The preponderance of probabilities would govern
the adjudication in civil case. If accordingly viewed, D1 would have had no
reason to hesitate to execute the sale deed in favour of the plaintiff on
receipt of the pitherance so to say Rs.1,000/- being the remaining sale
consideration from the plaintiff. Ex.A.2 alleged to have been emerged on
08.08.1997, long prior to the cancellation of the power deed under Ex.B.25 by D2
as against D1. The principle on Res Ipsa Loquitur could rightly be applied in
this factual scenario.

24. I recollect the popular adage, ‘witness might lie, but the
circumstances would not do so’. Disaster is found written on Exs.A.1 and A.2 in
the wake of the peculiar facts and circumstances involved in this case.

25. No doubt, there erupted some misunderstanding between D1 and D2, but
D1 had not chosen to initiate any legal action. Ex.B.5, dated 28.10.1997, the
copy of the letter would reveal that D1 sent a reply to D2’s letter regarding
the cancellation of power deed and in that he narrated the facts that he entered
into an agreement to sell with the plaintiff and also executed a sale deed in
her favour which remained unregistered for which, no doubt D2 did not reply. But
the learned counsel for D2 and D3 would submit that such a letter i.e., Ex.B.5
emerged only after the presentation of the plaint by the plaintiff on
27.10.1997.

26. It is also a fact to be noted that after the cancellation of the power
deed – Ex.A.3, vide Ex.B.25 by D2, the remaining 3 cents was sold by D2 in
favour of the same D3, who had already purchased the 6 cents of land. As such,
the whole bit and caboodle of facts placed before me would connote and denote
that a dispute erupted between D1 and D2 and in that connection D2 cancelled
Ex.A.3 the said power deed; whereupon obviously and axiomatically for the
purpose of safeguarding the interest of D1, Exs.A.1 and A.2 emerged at the
instance of D1 and to that effect both the Courts below rendered a finding,
which in my opinion is not perverse or illegal. Wherefore for the first time in
Second Appeal, this Court cannot be called upon to give any finding that Exs.A.1
as well as Ex.A.2, was anterior to such cancellation.

27. The fact also remains that after filing of the suit, D2 filed a
counter claim for recovery of possession of the property, which is in the
possession of the plaintiff on the ground that after obtaining injunction in the
suit, the plaintiff barged into the suit property and that was ordered.

28. There is nothing to indicate that D1 ever raised his little finger to
question the factum of the power having been cancelled by D2 in his favour. As
such I am of the considered view that absolutely there is no reason to interfere
with concurrent finding of facts rendered au fait with law by both the Courts
below.

29. I would like to recollect and recall the decision of the Hon’ble Apex
Court in Citadel Fine Pharmaceuticals v. Ramaniyam Real Estates (P) Ltd.
reported in (2011) 9 Supreme Court Cases 147. Certain excerpt from it would run
thus:

“57. There is another aspect of the matter also. In the instant case by asking
for specific performance of the contract, the plaintiff purchaser is praying for
a discretionary remedy. It is axiomatic that when a discretionary remedy is
prayed for by a party, such party must come to court on proper disclosure of
facts. The plaint which it filed before the court in such cases must state all
the facts with sufficient candour and clarity. In the instant case the plaintiff
purchaser made an averment in the plaint that the defendant vendor be directed
to return the advance amount of Rs10,00,000 with interest at the rate of 24%
from the date of payment of the said amount till the realisation and an
alternative prayer to that effect was also made in the prayer clause (c).

58. However, the fact remains that prior to the filing of the suit the defendant
vendor returned the said amount of Rs 10,00,000 by its letter dated 4-9-1996
by an account payee cheque in favour of the plaintiff and the same was sent to
the plaintiff under registered post which was refused by the plaintiff on 6-9-
1996. The plaintiff suppressed this fact in the plaint and filed the suit on 9-
9-1996 with a totally contrary representation before the court as if the amount
had not been returned to it by the vendor. This is suppression of a material
fact, and disentitles the plaintiff purchaser from getting any discretionary
relief of specific performance by the court.

59. In this connection we may refer to the Principle of Equitable Remedies by
I.C.F. Spry, (4th Edn., Sweet & Maxwell, 1990). Dealing with the question of
“clean hands” the learned author opined that where the plaintiff is shown to
have materially misled the court or to have abused its process, or to have
attempted to do so, the discretionary relief of specific performance can be
denied to him. In laying down this principle, the learned author relied on a
decision of the English Court in Armstrong v. Sheppard & Short Ltd., (1959) 2 QB
384, QB at p.397. (See Spry, Equitable Remedies, p. 243.)

60. This Court has also taken the same view in Arunima Baruah v. Union of India,
(2007) 6 SCC 120. At p. 125, para 12 of the Report, this Court held that
it is trite law that to enable the court to refuse to exercise its discretionary
jurisdiction suppression must be of a material fact. This Court, of course, held
that what is a material fact, suppression whereof would disentitle the suitor to
obtain a discretionary relief, would depend upon the facts and circumstances of
each case. However, by way of guidance this Court held that a material fact
would mean that fact which is material for the purpose of determination of the
lis.

61. Following the aforesaid tests, this Court is of the opinion that the
suppression of the fact that the plaintiff refused to accept the cheque of Rs
10 lakhs sent to it by the defendant under registered post with
acknowledgment due in terms of Clause 9 of the contract is a material fact. So
on that ground the plaintiff purchaser is not entitled to any relief in its suit
for specific performance.”

A mere poring over and perusal of the said decision would leave no doubt in the
mind of the Court that in a suit for specific performance there should not be
any suppression of fact or falsity involved and for that matter if a litigant
approaches the Court with false statements, he should be non-suited.

30. On balance, I do not see any question of law, much less any
substantial question of law is involved in this matter and the Second Appeal
deserves to be dismissed.

31. In the result, the Second Appeal is dismissed. No costs. Consequently,
connected M.Ps. are dismissed.

32. The learned counsel for D1 would make an extempore submission after
hearing this judgment, that this Court might give liberty to D1 to take
independent action to seek his remedy as against D2 and others. However, it is
open for him to do so, if law permits.

sj

To

1.The Principal District Judge,
Thoothukudi.

2.The Principal District Munsif,
Thoothukudi.

M.Mani vs The District Collector on 8 November, 2011

Madras High Court
M.Mani vs The District Collector on 8 November, 2011
       

  

  

 
 
 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 08/11/2011

CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU

Writ Petition (MD) No.80 of 2011
Writ Petition (MD) No.1300 of 2011
Writ Petition (MD) No.1807 of 2011
&
Writ Petition (MD) No.1808 of 2011
and
M.P.(MD).No.1 of 2011 in W.P.(MD).No.1300 of 2011
and M.P.(MD).Nos.1 & 2 of 2011 in W.P.(MD).No.1807 of 2011
and M.P.(MD).Nos.1 & 2 of 2011 in W.P.(MD).No.1808 of 2011

W.P.(MD).No.80 of 2011 :

M.Mani						... Petitioner
	
Vs.

1.The District Collector,
  Dindigul District.

2.The Special Deputy Collector
  (Social Welfare Scheme)
  District Collectorate Office,
  Dindigul.

3.The Project Director,
  National Highways, Four ways
  Project, Door No.44, Pon
  Nagar 3rd street, Trichy
  Town & District.

4.The District Revenue Officer cum
  Commissioner, National Highways,
  Chennama Nayakkanpatty,
  Dindiul Taluk & District.

5.The Special Tahsildar,
  (Land Acquisition),
  Special Tahsildar Office,
  National Highways No.45,
  Dindigul.

6.Saraswathi					... Respondents

Petition filed under Article 226 of the Constitution of India
praying for issuance of a writ of mandamus, to direct the respondent to consider
the petitioner’s representation dated 21.12.2010.

!For petitioner    	  ..  Mr.C.Thiruppathi
^For respondents 	  ..  Mr.M.Govindan,
1, 2, 4 & 5		      Special Government Pleader
For 3rd respondent        ..  Mr.Arulvadivel Sekar
For 6th respondent 	  ..  Mr.G.Manikandaraja

W.P.(MD).Nos.1300, 1807 & 1808 of 2011 :	
					
C.Gopinath				.. Petitioner in
					   W.P.(MD).No.1300/2011

M.Saraswathi				.. Petitioner in
					   W.P.(MD).No.1807/2011

M.Annapooranam				.. Petitioner in
					   W.P.(MD).No.1808/2011
	
Vs.

1.The District Collector,
  Dindigul District.

2.The Project Director,
  National Highways, Four ways
  Project, Door No.44, Pon
  Nagar 3rd street, Trichy
  Town, Trichy.

3.The District Revenue Officer
   cum Competent Authority,
  National Highways,
  Chennamanayakanpatty,
  Dindiul Taluk & District.

4.The Special Tahsildar,
  (Land Acquisition),
  Special Tahsildar Office,
  (Land Acquisition)
  National Highways No.45,
  Dindigul.

5.M.Mani

6.K.Palaniyammal			 .. Respondents in
					    all the writ petitions


W.P.(MD).No.1300 of 2011 :

Petition filed under Article 226 of the Constitution of India
praying for issuance of a writ of mandamus, to forbear the fourth respondent
from passing an award and disburse the compensation amount in favour of 5th and
6th respondents in respect of Survey No.937 and UDR Survey No.935/6, Ayyalur
Village, Vedachandoor Taluk, Dindigul District.

W.P.(MD).Nos.1807 & 1808 of 2011 :

Petitions filed under Article 226 of the Constitution of India
praying for issuance of a writ of Certiorarified Mandamus, to call for the
records relating to the order passed by the third respondent in proceedings in
Na.Ka.No.548/08/A4/N-45, dated 12.01.2011 and Na.Ka.No.548/08/A4/N-45, dated
12.12.2010 and quash the same as illegal and further direct the respondents to
refer the matter to Civil Court in view of Rule 3-H of National Highways Act for
proper adjudication in respect of Survey No.937 and UDR Survey No.935/6, Ayyalur
Village, Vedachandoor Taluk, Dindigul District.

!For petitioners    	 	 ..  Mr.G.Manikandaraja
^For respondents 	 	 ..  Mr.M.Govindan,
1, 3 & 4 			     Special Government Pleader
For 2nd respondent               ..  Mr.Arulvadivel @ Sekar
For 5th respondent 		 ..  Mr.C.Thiruppathi
	
:COMMON ORDER

The petitioners in these four writ petitions are close relatives
viz., the petitioners in W.P.(MD).Nos.1807 & 1808 of 2011 are the sisters of the
petitioner in W.P.No.80 of 2011 and the petitioner in W.P.(MD)No.1300 of 2011 is
the nephew of the petitioners in the other writ petitions.

2.The writ petition in W.P.(MD).No.80 of 2011 is filed by Mr.M.Mani,
S/o. late Muthunarayanasamy. He was running a hotel by name Hotel Doss at
Ayyaloor and the hotel was situated in Survey No.935/6. The claim of the said
petitioner is that he had constructed the building in the year 1975 and has been
in possession of the said building and also paying house tax, electricity
consumption charges, etc. His name also finds in the village revenue records.
The said building was acquired for the purpose of expanding the National Highway
No.45 in Trichy – Dindigul Section. After the completion of the acquisition, the
compensation was arrived at Rs.12,15,853/- as certified by the competent
authority. The compensation is yet to be disbursed to the said petitioner. The
petitioner was not satisfied with the rate of compensation and therefore, he
sent a representation, dated 21.12.2010, to the District Collector, Dindigul,
seeking for a higher compensation for the land acquired and therefore, he sought
for a reference of his petition for higher compensation and that W.P. when it
came up for admission on 05.01.2011, notice of motion was ordered in the said
petition. On notice from this Court, the Special Tahsildar, Land Acquisition,
Dindigul has given a reply dated 04.01.2011 stating that the petitioner had not
submitted the death certificate showing the death of his father late
Muthunaranayasamy and also the legal heir certificate for claiming the said
property and it was also pointed out that he had not produced the original house
tax receipts and E.P. consumption receipts for having enjoyed the facility in
the building situated in Survey No.935/6. Therefore, after the petitioner
submits those applications, his application for reference for higher
compensation will be considered.

3.In the meanwhile, the two sisters of the petitioner in W.P.(MD).No.80
of 2011, viz., M/s.Annapooranam, who is unmarried and said to be residing in the
same building, until it was taken over by the Highways filed W.P.(MD).No.1808 of
2011 and Saraswathi, filed W.P.(MD).No.1807 of 2011 claiming that the property
in question belongs to the joint family and in respect of acquisition made, the
matter should be referred to the Civil Court for determining the rights of the
legal heirs in terms of Section 3-H(4) of the National Highways Act, 1956
(hereinafter referred to as “the Act”). Section 3-H(4) of the Act states that
if any dispute arises as to the apportionment of the amount or any part thereto
or to any person to whom the same or any part thereto is payable, the competent
authority shall refer the dispute to the decision of the Principal District
Court of original jurisdiction within the limits of whose jurisdiction the land
is situated.

4.When these two writ petitions came up for admission on 17.02.2011,
this Court ordered notice of motion in both the writ petitions and the fourth
respondent in those two writ petitions viz., the Special Tahsildar (Land
Acquisition), Dindigul was directed not to disburse the award amount to the
claimants, but it transpires, both the petitioners filed earlier writ petitions
before this Court in W.P.(MD).No.13365 of 2010 (M.Saraswathi) and
W.P.(MD).No.12189 of 2010 (M.Annapooranam). The prayer in the said writ
petitions was to forbear the Special Tahsildar (Land Acquisition), Dindigul from
passing an award and disbursing the compensation in favour of M.Mani, the
petitioner in W.P.(MD).No.80 of 2011 and one K.Palaniammal, who is the
respondent therein. The said writ petitions were not gone into on merits and
the petitioners were directed to give representation to the respondents staking
their claim in the said property. The petitioners, pursuant to the direction
issued by this Court in W.P.(MD).No.13365 of 2010, dated 03.11.2010 and in
W.P.(MD).No.12189 of 2010, dated 27.09.2010, were directed to produce the
records showing their interest or ownership in the said property and it was
observed that the petitioners have only filed a written representation, but did
not show any documents to prove that they are the owners of Survey No.935/6.
Therefore, the petitioners were informed that the house tax receipts as well as
the patta No.1051 was standing in the name of Mr.M.Mani, the petitioner in
W.P.(MD).No.80 of 2011 and therefore, the request of the petitioners that they
should not only be given compensation but also the matter relating to the
dispute towards apportionment of the compensation amount should be referred to
the Civil Court, was rejected by the authorities, in the absence of any prima
facie claim made by the two petitioners. However, the counsel for the
petitioners strenuously contended that certain documents were standing in the
name of their mother and they have vital interest and the respondents are bound
to refer to the dispute in terms of Section 3-H(4) of the National Highways Act,
1956.

5.It must be noted that section 3-H(4) is only an enabling provision
for determining the apportionment of the amount by the authorities, who have
acquired the lands, failing which a reference can be made to the Civil Court
having jurisdiction. It is not as if the petitioners did not have any remedy to
claim their share in the compensation amount. They can very well establish
before a competent civil Court that they are entitled to have a share in respect
of Survey No.935/6, Ayyaloor Village. In fact, they have not succeeded in
convincing the authorities about their share in the property by producing prima
facie documents in their favour. Their claim was only based upon the legal heir
certificate issued by the Tahsildar, Vedachandur in which the legal heirs for
the late Muthunarayanasamy has been shown as one son and five daughters,
including M/s.Annapooranam and Saraswathi as well as the Palaniammal, who is the
daughter-in-law of late Muthunarayanasamy and wife of late M.Kalidas. Mere
legal heir certificate, without showing that the particular property in question
is coming within the joint family property, the petitioner cannot seek for any
direction in terms of Section 3-H(4) and prima facie the impugned orders dated
12.01.2011 challenged in W.P.(MD).No.1807 of 2010 and dated 12.12.2011
challenged in W.P.(MD).No.1808 of 2011 do not call for any interference. That
does not preclude the petitioners from filing appropriate suit before the
appropriate Civil Court claiming their right in the said property, including the
determination of their share in the said property. However, the learned counsel
for the petitioner Mr.G.Manikandaraja, expressing an apprehension that if
amounts disbursed to their brother M.Mani, the petitioner in W.P.(MD).No.80 of
2011, they would leave with nothing for a latter to claim and secondly, mere
getting a declaratory relief in the Court finally will be no result, requested
the Court that some compensation amount may be directed to be deposited.

6.While this Court is not inclined to entertain the writ petitions,
seeking for a reference under Section 3-H(4), this Court is inclined to
safeguard the interest of the other legal heirs, if they prima facie establish
before the appropriate Civil Court about their right to get the amount and
therefore, intent to pass appropriate orders in the other writ petitions to that
effect. Hence, W.P.(MD).Nos.1807 and 1808 of 2011 will stand dismissed with the
direction and the dismissal will not disentitle the petitioners

7.The petitioner in W.P.(MD).No.1300 of 2011 is son of late
M.Chandran, who married Saroja and died on 22.12.1995 leaving him, as the sole
legal heir. The prayer made in W.P. is to forbear the fourth respondent Special
Tahsildar, Land Acquisition, from passing an award and disbursing the
compensation in favour M/s.M.Mani and K.Palaniammal, W/o.Late Kalidass in
respect of Survey No.935/6, situated at Ayyaloor village. That W.P. when came
up on 03.02.2011, notice of motion was ordered. Pending notice of motion the
Special Tahsildar was directed to not to disburse the amount to the claimants.
When only a final determination regarding the acquisition is made, the question
of payment of compensation will arise and thereafter, under Section 3-E, the
compensation of land can be taken for and the amount can be deposited in terms
of Section 3- H(4) of the National Highways Act. Therefore, the first portion
of the prayer that the Court should restrain the respondents from passing the
award or disbursing the compensation amount, cannot be entertained by this
Court. It transpires already the compensation amount has been determined by the
authorities as per the original file relating to the acquisition produced before
this Court. The only apprehension raised by the petitioner is similar to that of
the petitioners in W.P.(MD).Nos.1807 & 1808 of 2011. Therefore, the direction
given in those writ petitions will also apply to the petitioner and hence, with
the same direction, W.P.(MD).No.1300 of 2011 stands dismissed. It also
transpires that the same petitioners viz., C.Gopinath, M.Saraswathi and
M.Annapooram have filed a suit in O.S.No.266 of 2010 and in the suit, I.A.No.417
of 2010 restraining the petitioner M.Mani from constructing or altering
properties, was rejected. In any event, it is unnecessary to go into the civil
dispute.

8.In so far as the writ petition filed by the petitioner in
W.P.(MD).No.80 of 2011 is concerned, he was subsequently informed that he should
satisfy the authorities with reference to his right to claim the amount by
producing necessary documents and ultimately if he satisfies the authorities, he
can be given the compensation as ordered by the authority. The only impediment
was that the pendency of W.P.(MD).No.13365 of 2010 before this Court. As
already rightly stated by the petitioner, the said writ petition filed by
M.Saraswathi was disposed of as early as on 03.11.2010. Therefore, the
authority must have known about the said disposal, since the order copy made in
W.P. has already been marked to the respondents and despatched by this Court on
10.11.2010. Unfortunately the respondents had driven the land owner for giving
a petition before the District Collector at the grievance redressal day.
Thereafter, they gave an explanation contrary to the records. Hence, a direction
will issue to the respondents to consider the petitioner’s representation dated
21.12.2010, a copy of which marked at Page 7 of the typed set filed in
W.P.(MD).No.80 of 2011. The authority should pass appropriate orders within
four weeks from the date of receipt of a copy of this order. In case, the
respondents are inclined to disburse the compensation amount in favour of
Mr.M.Mani, the petitioner in W.P.(MD).No.80 of 2011, the same shall be received
by the said writ petitioner. Out of the said amount received by him, he should
keep Rs.7,00,000/- (Rupees seven lakhs only) separately and put the same in a
fixer deposit for a period of one year. In the event of his sisters or other
legal heirs, are able to succeed before the Civil Court, the said amount would
stand as a security in the civil suit if any filed by the said persons. If the
suit is not filed and no interim orders are obtained from the civil Court within
a period of one year from the date of receipt of a copy of this order, the
petitioner Mr.M.Mani is entitled to encash the said amount in his favour. The
writ petition is disposed of accordingly. On receipt of money, the said
petitioner shall file an affidavit into this court before the Registrar
(Judicial), Madurai Bench of Madras High Court, Madurai, undertaking to keep the
above said amount in fixed deposit for a period of one year and the Registrar
(Judicial) shall call for compliance report from the said petitioner.

9.In the result, the writ petition in W.P.(MD).No.80 of 2011 is
disposed of with directions. W.P.(MD).Nos.1300, 1807 & 1808 of 2011 will stand
dismissed with the above direction. In view of the above, all the miscellaneous
applications are closed. No costs.

gcg

To:

1.The District Collector,
Dindigul District.

2.The Special Deputy Collector
(Social Welfare Scheme)
District Collectorate Office,
Dindigul.

3.The Project Director,
National Highways, Four ways
Project, Door No.44, Pon
Nagar 3rd street, Trichy
Town & District.

4.The District Revenue Officer cum
Commissioner, National Highways,
Chennama Nayakkanpatty,
Dindiul Taluk & District.

5.The Special Tahsildar,
(Land Acquisition),
Special Tahsildar Office,
National Highways No.45,
Dindigul.

State Rep By vs K.P. Jai Xavier on 4 November, 2011

Madras High Court
State Rep By vs K.P. Jai Xavier on 4 November, 2011
       

  

  

 
 
 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 04/11/2011

CORAM
THE HONOURABLE MR.JUSTICE S.PALANIVELU

Criminal Revision Case(MD)No.224 of 2011
and
Criminal Revision Case(MD)No.226 of 2011

State rep by
The Inspector of Police,
Vigilance and Anti Corruption,
Tirunelveli.
[Cr.No.07/2005]				... Petitioner
					    [in both Crl.R.Cs.]
						
Vs.

1.K.P. Jai Xavier
2.D.Karuppasamy
3.M.Jaya Ganapathy					
4.H.S.Surianarayanan
5.M.Venkatachalapathy
6.P.Chellappa
7.C.Jose Louis				... Respondents
    {R4 to R7 impleaded suo-motu	    [in Crl.R.C.224/2011]
      as per the order of this Court
      dated 23.06.2011}

S.Sreenivasamoorthy			... Respondent
 					    [in Crl.R.C.226/2011]

PRAYER

Criminal Revision Petition filed under Section 397 and 401 of the Code
of Criminal Procedure, to set aside the common order of discharging all the
respondents passed by the Chief Judicial Magistrate, Tirunelveli in
C.M.P.Nos.2604 of 2010 and 2276 of 2010 in Special Case No.02 of 2010 dated
27.12.2010.

!For Petitioner    ... Mr. P. Kandasamy
[in both Crl.R.Cs.]    Government Advocate [Crl.side]
^For Respondents   ... in Crl.R.C.No.224 of 2011
		        Mr. S. Shanmugavelayudham
		        Senior Counsel for
		        M/s.T. Kokilavane [for R1 to R3]
 		        Mr.R. Anand [for R4 to R7]
		        in Crl.R.C.No.226 fo 2011
 			Mr. P.T.S.Narendravasan
			
:COMMON ORDER

1. The petition filed by the respondents/accused 1 to 3 for discharging
them from the case in brief is as follows:

1.(a) The petitioners 1 to 3 are the accused 1 to 3, were working as
Executive Engineer, Assistant Executive Engineer and Junior Engineer
respectively in the Tirunelveli City Municipal Corporation during the relevant
period to this case and one Tr.R.Raghunathan, who was working as City Engineer
in the said Corporation who is in superior rank to the Executive Engineer and
his subordinates in the Said Corporation, He is the head of the Engineering
Section in the said Corporation.

1.(b) In the police report filed under Section 173(2) Cr.P.C., the
Inspector of Police, Vigilance and Anti-Corruption, Tirunelveli had levelled
charges for the offences under Section 120-B, 420, 468 and 471 I.P.C. against
all the eight accused and a charge for the offence punishable under section
13(2) r/w Sec.13(1)(d) of Prevention of Corruption Act, 1988 against A1 to A3,
that All the charges levelled are found to have been based merely on surmises
and conjectures and are found to be absolutely groundless, that even if the
allegations in the police report are taken at their face value, they do not make
out the ingredients of the offences for which charges have been levelled
therein, that the charges under Section 468 and 471 I.P.C.,are found to be the
outcome of gross misconception of law and facts and that neither the allegations
contained in the police report nor in the statement of witnesses nor in the
other documents relied on by the prosecution make out the ingredients of the
offence of forgery as defined under Section 463 and 464 I.P.C.,which is a sine
qua non for attracting Sec.468 I.P.C.

1.(c) There is absolutely no scope for a charge for the offence of
“forgery for purpose of cheating” punishable u/s 468 I.P.C which is just an
aggravated form of forgery, that even if all the mens rea and overt acts for the
offence punishable u/s 468 I.P.C are presumed to be true, they do not make out
the ingredients of the said offence and that the charge u/s 468 and 478 I.P.C
are found to have been levelled not only without any basis but also quite
contrary to the facts ex-facie available in the documents relied upon the
prosecution.

1.(d) The fundamental allegation upon which the prosecution has found its
entire case is that A6 and A7 recorded false measurements in the Measurement
Books as if earth and gravel had been filled in layers of 15 cm thick (each
layer 15 cm thick) watered and consolidated layer by layer but without actually
doing this work as found in the Measurement Books, that this fundamental
allegation itself stands disproved by Sec.161(3) Cr.P.C statement of
Mr.R.Regunathan, formerly City Engineer, Tirunelveli City Municipal Corporation,
who found to have stated that he supervised the Tirunelveli New Bus-Stand works
from 15.10.2001 onwards, that in the same statement he further stated as
follows: “nkw;go xg;ge;jf;fhuu; xt;bthU 15 br.kPl;lUf;Fk; gtu; nuhyiu
gad;gLj;jp/ jz;zPu; moj;J/ ,Wf;fk; bra;Jjhd; nkw;go gs;sk; epug;g[k; ntiyia
bra;jhu;.” This situation of facts unmistakably reveals that the
measurements/entries recorded by A6 and A7 are not false one.

1.(e) The technical report dated 2.8.2004 of witness No.22 Mr.A.Rampal
Singh does not improve in any manner the above said position of the prosecution
case, that this report is nothing but a self-serving evidence generated for the
purpose, that the Technical Report, being hit by sec.162 Cr.P.C., would be
totally inadmissible in evidence during trial. The said Rampal Singh, being not
an expert, his statement or report would not fall under the category of
“expert’s evidence or expert’s opinion.”, that it is realised from his report
that he has not carried out any test for ascertaining the percentage of
compaction attained by the filled up earth, that Mr.A.Rampal Singh has not
stated anywhere either in his report or in his statement as to on what
scientific basis he excepted, that he has stated in his report that the
measurements taken during his site inspection and verification during July 2004
tally with the measurements recorded in the Measurement Books during 2001 and
relied on for payments, that the fact that there was no variation in the depth
of earth filling even after 3 . years of its formation indicates that the filled
up the earth has not sunk even a centimetre in the course of this 3 . years and
that despite this, the investigating agency for reasons best known to it has
failed to take any effort to ascertain the percentage of compaction attained by
the filled up earth by any scientific methods and to bring before the Court the
outcome of such efforts to support its case.

1.(f) It is significant to note that Mr. Rampaul Singh has not stated in
his report that the compaction made is far below the required compaction, that
he has also not stated that the filled up earth has sunk at any place in the
entire extent of 19 acres of filled up area in the Bus Stand, that the entire
Bus Stand having 19 acres of area till 2004, that is even after the elapse of 3
. years from its formation, is a sufficient proof that the filled up earth has
attained full and complete compaction, that the New Bus Stand was put into
operation from March 2003, then onwards more than 750 buses get in and out of
the bus stand every day; the bus stand receives a large flow of water; heavy
rains have sunk into the filled up earth after its formation, that inspite of
all these factors the filled up earth has not sunk at any place till today and
that if it has sunk at any place, the investigating agency which after a long
and inordinate delay has filed its final report only in February 2010, would not
have failed to bring such events into evidence to support.

1.(g) In the police report, “forgery” is alleged to have been committed
for the purpose of cheating and ultimately “cheating” and “criminal misconduct
by public servants” are alleged to have been accomplished by “using as genuine
the forged documents”, “cheating” and “criminal misconduct by public servants”
being consequential offences and therefore, as things stand, if forgery goes,
the consequential offences of “using as genuine the forged documents”
“cheating”, and “criminal misconduct by public servants” cannot stand as they
are intimately connected with each other, that if all the mens rea and overt act
alleged in the police report against A1 to A3 in support of the charge for the
offence punishable u/s 13(2) r/w Sec.13(1)(d) of the P.C. Act, 1988 are presumed
to be true, they do not make out the ingredients of the said offences and that
A1 to A3 are public servants, previous sanction of the Government of Tamilnadu
u/s.197(1) of Cr.P.C. is mandatory for a prosecution against them for the
alleged offences u/s 120-B, 420, 468 and 471 I.P.C.

1.(h) It is settled law that charge for an offence can be framed against
an accused only when the available materials arouse a strong and not a mere
suspicion as to the commission of that offence as well as the involvement of the
accused therein, that even in cases, where two views are possible, it is settled
law that the view favourable to the accused has to be followed, that the
criminal prosecution instituted against A1 to A3 in this case is wanting in
bona-fide and is frivolous, vexatious and rather oppressive.

2. In the counter filed on behalf of the respondent, it is stated as
follows:

2.(a) The materials in the form of oral as well as documentary evidences
are sufficient to establish the charges levelled against the accused, that it is
not correct to say that the allegations in the police report do not make out
the ingredients of the offences, that there is sufficient materials to make out
the charges against the accused even as per the averments stated in the police
report, that the available materials submitted along with the 173 Cr.P.C. report
are sufficient to frame charges u/s.468 and 471 I.P.C., that the allegations
contained in the police report and in the statement of witnesses and the
documents i.e., the measurements books and other documents relating to the
contract work done in the new bus stand would show that the entries made in
relation with the measurements of works done stage by stage in the measurement
books are false, due to this act the accused are liable for making false
documents, so the ingredients of the offence forgery as defined in Section 363
is made out.

2.(b) It is not correct to say that the allegations in the entire
prosecution records would not bring the case of making false documents which
amounts to forgery, that after the criminal conspiracy entered into between the
accused A1 to A8, false entries were made in the measurement books based upon
the bills were prepared, passed and the amount as per the calculations made as
if the works were done was disbursed to A8 the contractor, that the averments
whether the ingredients of the offences u/s 468 and 471 are made out or not can
be decided only after recording of the evidence and after the analysis of the
contents of the documents alleged to have been forged after let them in evidence
by marking as exhibits on the side of the prosecution.

2.(c) Witness No.21 Mr.A. Raghunathan’s statement would show that he never
check measured the work done and there is no records to show that watering and
consolidation work in the filled up layer of each 15 cm thickness were done by
the contractor, in this circumstances the presumption is he never supervised the
work by his personal inspections on the spot during the execution of the work
and so his version spoken in his statement that “nkw;go xg;ge;jf;fhuu; xt;bthU
15 br.kPl;lUf;Fk; gtu; nuhyiu gad;gLj;jp/ jz;zPu; moj;J/ ,Wf;fk; bra;Jjhd;
nkw;go gs;sk; epug;g[k; ntiyia bra;jhu;.” cannot be taken into account and it is
to be ignored.

2.(d) Witness No.22 Tr.A. Rampaul Singh is an Executive Engineer belongs
to P.W.D., at the relevant point of time worked as Executive Engineer in the
Directorate of Vigilance and Anti-Corruption, Chennai on deputation, that when
there is a technical expert available in the Headquarters of DVAC itself, it is
not necessary to address the Chief Engineer, P.W.D., Chennai, to nominate some
other officer for his assistance in technical matters during the investigation
of a case, that whether the technical report of Witness No.22 Tr.A.Rampaul Singh
has stated while testing upon the earth by making pits he found the earth is
very loose can be removable even by fingers itself without applying much force
and that in these circumstances to ascertain the compaction, it is not necessary
to test the earth with scientific methods. The non mentioning of the fact by
Mr.Rampaul sing that there are 2 or 3 different coloured layers of earth visible
on the vertical surface of the trial pits and what scientific basis he expected
are not at all a ground to suspect his report.

2.(e) The case of the prosecution is that the work was not done as per the
conditions of the contract so the earth has not sunk in the course of this 3 .
years wold not establish the fact watering and compaction were done during the
execution of the work, that the report would show that there is no sunk of earth
in the filling area where he made tests in the trial pits in 2 or 3 places, that
there is sufficient materials to prove that the measurements / entries recorded
in the measurement books are false and relied on that payments were made to the
contractor by the Tirunelveli, City Municipal Corporation, that according to the
police report it reveals that for getting pecuniary advantages the accused A1 to
A7 committed violations in relation to the entry of the actual measurements of
the works done in the Measurement Book the false measurements entered in the
Measurement Book and relied upon the bills were prepared and money for the work
is disbursed to the contractor and for that the said act, the accused are
liable for falsification of accounts for the purpose of cheating.

2.(f) There is sufficient evidence to show that the accused A1 to A3 has
committed an offence punishable u/s 13(2) r/2 13(1)(d) of the Prevention of
Corruption Act 1988, that due to the several act done by the accused A1 to A3
for wrongful gain it can be presumed that the acts were done in order to get
pecuniary advantages for themselves, that a charge of criminal conspiracy u/s
120(B) strong suspicion regarding the commission of the offence is sufficient,
meeting of minds in relation to the act to be done can be presumed from the
circumstances in which the offence is committed, that the Non-mentioning of the
provisions sec.197(1) which envisaged power to accord sanction in the sanction
order is only an omission, that it is mentioned in the Sanction Order in
G.O.Ms.No.253 dated 21.12.2009 that the Governor of Tamilnadu hereby accord
sanction for the prosecution of Tr. K.P.Jai Xavier, formerly Executive Engineer
now City Engieer and Tr.G.Karuppasamy, Assistant Executive Engineer, Tirunelveli
Municipal Corporation of the said offences by a cour to competent jurisdiction
which would show that sanction was granted for the prosecution of the accused.

2.(g) Available materials are more than sufficient to frame charges
against the accused as per the provisions of law mentioned in the police report,
that it is not correct to state that the prosecution is initiated against the
accused is not in a bona fide manner, that the power to discharge an accused in
a criminal case taken on file by the court on a police report should exercised
very sparingly and that to in the rarest of rare cases and that the petition
filed on behalf of the accused to discharge is devoid of merits and therefore it
is liable to be dismissed.

3. In the rejoinder filed on behalf of the petitioners, it is stated as
follows:

3. (a) In support of point of law urged in Para 7 touching Section 464
I.P.C.the petitioners rely on

1.State v. Parasram [AIR 1965 Rajasthan 9]

2.Md.Ibrahim & Ors v. State of Bihar & Anr.

[2009 SAR (Crl.) 961 (Supreme Court)]

3.Guru Bipin Singh v. Chontham Manihar Singh & Anr
[1997 Crl.L.J. 724]

3.(b) In support of the contention urged in Paras 25 & 26, the petitioner
rely on

1.Gowri Shankar Prasad v. State of Bihar
[AIR 2000 Supreme Court 3517]

2.Abdul Wahab Ansari v. State of Bihar & Anr.

[AiR 2000 Supreme Court 3187]

3.Suresh Kumar Bhikamchand jain v. Pandey Ajay Bhushan & Ors.
[1998 Crl.L.J.1242]

3.(c) The tenor of the counter filed by the prosecution triggers an
apprehension in the minds of the petitioners that the police report in this case
has been filed neither with a mere intention of carrying the law into effect nor
in furtherence of justice but with an ill-will of harassing the petitioners.

3.(d) As regards the principles of to be kept in view while considering
whther there is sufficient ground for proceeding against the accused the
petitioners invite the attention of this Court to the following decisions of the
Supreme Court.

i.Union of India v. Prafulla Kumar Samal & Anr
[1979 Crl.LJ 154 (Supreme Court)]

ii.Dilawar Babu Kurane v. State of Maharastra
[AIR 2002 Supreme Court 564]

iii.A.Mohemed v. State
[2006 (2) L.W.Crl. 752 (Madras High Court)]

iv.Ashok Chaturvedi and Ors v.Shitui H Chanchani & Anr.
[1998 Crl.L.J.4091 (Supreme Court)]

4. After hearing both sides, the learned Chief Judicial Magistrate,
Tirunelveli has allowed both the applications, discharging the petitioners and
also the accused who had not filed discharge petition, from the case. Hence,
the State has preferred these revisions.

5. Point for Consideration:

The following are the gist of the charge against the accused:

Some irregularities and malpractice done in executon of the construction
work of the new bus stand at Veinthankulam in Palayamkottai, Tirunelveli
District during 2000 to 2004. On a verification by way of the detailed enquiry,
it came to light that A1 to A3 in collusion with A4 to A7, private individuals
and representatives of M/s. Consulting Engineering Services Ltd., Chennai and A8
contractor [Sreepathy Associates, Erode] who executed the work, caused wrongful
loss to the Government to the tune of Rs.19,83,374.73.

6. Point:

7. Accused 1 to 3 were working as Executive Engineer, Assistant Executive
Engineer and Junior Engineer respectively in Tirunelveli Municipal Corporation.
8th accused is Managing Partner of the Contractor firm viz., Sreepathy
Associates, Erode, who had taken the contract for formation of the bus stand. A4
to A7 are the employees of private Engineering Consultancy. It is the
allegation that A1 to A3 were entrusted with the duty of supervising the works,
that A3 has recorded the measurements in the Measurement Book and A1 and A2 have
signed in the Measurement Books for having checked the measurements recorded by
A3. It is stated that they entered into a criminal conspiracy with A4 to A7
who are the employees of A8 consultancy, to do an illegal act to commit the
offence of cheating of public fund by illegal means, by preparing false
documents using them as genuine, in order to get pecuniary advantage for
themselves and thus conspired together for such purpose and hence liable to be
punished under Section 120(B) I.P.C.

8. They are further alleged to have entered into a criminal conspiracy,
fraudulently and dishonestly to cause wrongful loss to Tirunelveli Municipal
Corporation, A6 and A7 recorded false measurement/entries in the Measurement
Book as if the earth and gravel had been filled in layer of 15 cm thick (each
layer) watered and consolidated layer by layer but without actually doing the
work as found in the Measurement Book. By making false entries in the
Measurement Books, they have caused a pecuniary loss of Rs.7,24,574/- to the
said Corporation and thereby they are liable to be punished for the offences of
cheating and forgery punishable under Section 420 and 468 I.P.C. respectively.

9. In the course of the same transaction, A1 to A8 with the dishonest
intention, used forged Measurement Books and the bills and caused the bills for
Rs.7,24,574/- sanctioned and hence they are punishable under Section 471 I.P.C.

10. In the course of the same transaction A1 to A3 being public servants
by corrupt and illegal means and by abusing their official position, dishonestly
and fraudulently did several acts at every stage in committing the offence of
forgery and cheating in order to get pecuniary advantage for themselves and
thereby they have committed the offence of criminal misconduct punishable under
Section 13(2) r/w 13(1) (d) of Prevention of Corruption Act, 1988.

11. It is the first and foremost contention of the revision petitioner
that the work was not done as per the specification contained in the contract
that when the earth was filled in the site for every 15 cm, the layer should be
as per the percentage of compaction, that without carrying out the contract by
actually performing the work, all the accused conspired together, made false
entries into the measurement books and got the bills sanctioned for
Rs.7,24,574/- and hence they have caused monetary loss to the Tirunelveli
Municipal Corporation.

12. In order to prove the charges, the prosecution placed much reliance
upon the Super Check Report of one A.Rampal Singh, who was examined under
Section 161(3) Cr.P.C. as 22nd witness in this case. The total extent of site
for the formation of bus stand is 19 acres in Veithankulam village in
Tirunelveli near Palayamkottai. The said witness has taken up certain tests to
ascertain the quality of the work performed by the 8th accused. He made two
pits in different places in the site and observed in his report as follows:

5.1 Pit No.1: The size of the first pit is 2.45 m x 1.50 m x 3.40 m (Depth).
The initial level of the ground at this location before filling is 98.305 m as
per page 13 of level filed book No.1/2000. The final level of the ground at
this location after filling is 101.590 m as per page 25 of level filed book
No.5/2002. So the depth of earth filling at this location is 3.285 m
(i.e.101.590 m _ 98.305 m). It is observed that there is no variation in the
depth of earth filling at this location. But it is noticed that the earth
filling to the depth of 3.285 m has not been laid in 15 centimetre layers. As
per the specifications the earth filling to this depth of 3.285 metre has to be
done in not less than 22 layers of 15 centimetre thick earth. But at site the
entire filling has been done in three layer only. So it may be concluded that
the work has not been carried out as per agreement to the required
specifications.

5.2 Pit No.2: The size of the second pit is 1.65 m x 1.50 m x 1.55 (depth).
The initial level of the ground at this location before filling is 99.505 m as
per page 45 of level filed book No.1/2000. The final level of the ground at
this location after filling is 100.970 m as per page 57 of level filed book
No.5/2002. So the depth of earth filling at his location is 1.465 m (i.e.
100.970 m – 99.505m). it observed that there is no variation in the depth of
earth filling. But it is noticed that the earth filling to the depth of 1.465 m
has not been laid in 15 centimetre layers. As per the specifications the earth
filling to this depth has to be done in not less than ten layers of 15
centimetre thick earth. But at site the entire filling has been done in two
layers only. Also in two places in this pit the filled up earth is very loose
and the earth is removable even by fingers itself with out applying much force.
So it may be concluded that the work has not been carried out as per agreement
to the required specifications.

5.3. As per trial pits analysis it is deserved that the compaction made with
two or three layers will be for below the required compaction of 95% Due to the
low compaction the filed up earth will sink in due course of time causing
damages to the works such as roads. Pavements, bus bays, platforms, passenger
shed and other structures etc., provided over this filled up earth and thus
incurring frequent expenditure on repair and maintenance works. So it is opined
that the entire amounts paid for refilling under agreement item No.33 may be
considered as a loss to the Government.”

13. The witness is of the opinion that the earth filling to the depth is
not as per specification in both the test pits and as per the measurement and
that the filling of the depth in Pit No.1 should consist not less than 22 layers
of 15 centimetre thick earth. But he could see only two layers. As per his
opinion even the above said layers were below the required compaction of 95%.
He has also expressed his view that if such compaction was done it would lead to
sink in due course in various parts of the bus stand which are to be used for
various purposes viz., pavements, bus bays, platforms, passenger shed and other
structures etc.,

14. The witness inspected the site on 14.7.2004. The actual work was done
in the site in the year 2004. Even after three years, nobody is able to find
out damage nor sinking in the site. In this case, charge sheet was laid in 2010
and at that time also there was no damage etc., in the site. Hence, it could
not be stated that the work was not upto the specifications.

15. The witness has also observed that in two places in Pit No.2, the
earth was very loose and the same is removable even by fingers itself without
applying much force. It is not so in Pit No.1. Witness No.22 was an Executive
Engineer at the relevant period who was deputed to the Directorate of Vigilance
and Anti Corruption, Chennai, and was working as full time officer at the head
quarters of the investigating agency at Chennai. It is contended by the
respondents’ side that usual practice of the investigating officers addressing
the Chief Engineer of the Public Works Department, Chennai for nominating a
suitable officer of his choice for inspecting the site is deviated. It is also
argued that he is not an expert and he is not competent to offer any opinion,
besides contending that for ascertaining the compaction, no scientific
examination was adopted by him. Apart from physical verification of number of
layers available in the site the witnesses also tested the quality of the
compaction by utilising the fingers. Certainly, there could be a scientific
test for ascertaining the quality of the components or materials used for
filling up the earth. Such scientific method of approach was not adopted by the
witness. Ascertaining the quality of compaction by fingers is not at all a
scientific method and it is doubtful whether the same would help the prosecution
in sustaining the charge.

16. As far as the number of layers expected to be contained in the earth
filling is concerned, the Court below has expressed the opinion that the
compaction was not made in 2001 and January 2002 and hence it is remote to
expect the every layer of 15 cm could be distinguished. The said opinion
appears to be reasonable. It is also observed in the order challenged that the
sand would have been obtained from various quarries and the colour of the layers
may look different. It is also proper observation.

17. Whether the report of opinion of the witnesses could be supported by
other materials at the time of trial is another point to be borne in mind.

18. Witness No.21 is one R.Regunathan who was working as Superintending
Engineer in the office of the Commissioner of Municipal Administration, Chennai.
During the relevant period he was serving as City Engineer in the Tirunelveli
Municipal Corporation from 26.9.2001 to 4.6.2003. He had to inspect the works
which would cost more than Rs.10 lakhs. In his statement recorded under Section
161 (3) Cr.P.C., he has stated that from 15.10.2001 onwards he was supervising
the new bus stand formation work, that the contractor made the earth filling by
spreading water and used power roller and made compaction for every layer of 15
cms, of course there is no record to show the same. Witness No.21 was the City
Engineer of Tirunelveli Municipal Corporation. He is of the opinion that A8 has
carried out the work as per specification. His statement turns contra to that of
witness No.22. But the prosecution relies upon the statement of report of
witness No.22. There could be no justification to ignore the statement of
Witness No.21 as to the compaction for the layer of every 15 cms. At the time
of trial there would be every possibility for the Court to place reliance upon
the words spoken to by witness No.21. Hence, there could be no forgery nor
cheating on the part of the accused. The other consequential offences of using
forged documents as a genuine one and criminal misconduct by the accused would
not arise. The version of witness No.21 indicates that the work was done as per
the specifications contained in the contract. The Court may also record a
finding to that effect. There would be no ground for ignoring nor discarding
his evidence. Hence there is no scope for making false entries nor forging the
documents.

19. In the light of the above said observation, this Court is of the
considered view that there is no sufficient materials to frame charges against
the accused.

20. It is further contended by the accused side that necessary sanction
under Section 197(1) Cr.P.C. is wanting, since A1 to A3 are public servants.
But the Secretary to Government, Municipal Administration of Water Supply (ME-4)
Department, Government of Tamil Nadu, Chennai-9 has given a statement that after
applying his mind and satisfying himself he accorded sanction for prosecution of
A1 and A2. Hence the contention that proper sanction has not obtained has no
legs to stand.

21. The learned Government Advocate (Crl.Side) would rely upon a Full
Bench decision of the Supreme Court in 2005 SCC (Crl.) 415 [State of Orissa v.
Debendra Nath Panthi
] in which it is held that the law is that at the time of
framing charge or taking cognizance the accused has no right to produce any
material, that no provision in the Code of Criminal Procedure, 1973 grants the
accused any right to file any material or document at the stage of framing of
charge and that the said right is granted only at the stage of trial. The
observations are as under :

“18. … … … … The accused would be entitled to produce
materials and documents in proof of such a plea at the stage of framing of the
charge, in case we accept the contention put forth on behalf of the accused.
That has never been the intention of the law well settled for over one hundred
years now. It is in this light that the provision about hearing the submssions
of the accused as postulated by Section 227 is to be understood. It only means
hearing the submissions of the accused on the record of the case as filed by the
prosecution and documents submitted therewith and nothing more. The expression
‘hearing the submissions of the accused’ cannot mean opportunity to file
material to be granted to the accused and thereby changing the settled law. At
the state of framing of charge hearing the submissions of the accused has to be
confined to the material produced by the police.”

By this decision, earlier decision of the Supreme Court in Satish Mehra v. Delhi
Administration
[(1996) 9 SCC 766 : 1996 SCC (Cri) 1104] was overruled.

22. The learned Senior Counsel Mr.S. Shanmugavelayutham appearing for A1
to A3 would place reliance upon certain decisions of the Supreme Court and this
Court for supporting his contention.

(i) As to Discharge of Accused:

23. As far as the discharge of the accused from the case is concerned, the
Supreme Court has expressed its view in AIR 1979 SC 366 = 1979 Crl.L.J.154
[Union of India v.Prafulla Kumar Samal and another] that if two views are
equally possible and the Judge is satisfied that the evidence produced before
him while giving rise to some suspicion but not grave suspicion against the
accused, he will be fully within his right to discharge the accused. In the
case on hand, in the presence of the statement of witness No.21, the Court has
got reasonable suspicion over the statement of witness No.22. Hence, discharge
of the accused is proper.

24. The view expressed in Prafulla Kumar Samal’s case (supra) has been re-
stated by the Supreme Court in AIR 2002 SC 564 [Dilawar Babu Kurane v. State of
Maharashtra
]. It is also observed that the Judge cannot act merely as a post
office or a mouth piece of the prosecution, but has to consider the broad
probabilities of the case, the total effect of the evidence and the documents
produced before the Court but should not make a roving enquiry into the pros
and cons of the matter and weigh the evidence as if he was conducting a trial.

25. The decision in Prafulla Kumar Samal’s case (supra) has also been
followed by this Court in 2006(2) L.W.Crl.752 [A. Mohammed v. State rep. By The
Deputy Superintendent of Police, CBI, SCB Madras.]

(ii) as regards Forgery and using of Forged Documents as
genuine:

26. In AIR 1965 RAJASTHAN 9 [State v. Parasram] it is held that where the
prosecution case is not one of subsequent alteration of the document but is
essentially one of making initial incorrect and unauthorised entries in the
revenue record the marking of such entries cannot be said to constitute the
making of false document under Section 464 I.P.C.

27. In 1997 Crl.L.J. 724 [Guru Bipin Sing v. Chongtham Manihar Sincgh and
another] the Apex Court has observed that if forgery goes, cheating cannot
stand. So, the complaint does not make out out a case under any of the three
Sections, namely 420, 465 and 468. It may be pointed out that 468 is intimately
connected with 420 and 465 I.P.C.

28. The same view has been taken by the Supreme Court in 2009 SAR CRL.961
[Md. Ibrahim & Ors v. State of Bihar & Anr.]

(iii) As to the appreciation of expert evidence:

29. This Court in 2010 (3) M.L.J. (Crl.) 625 [K. Sulochana v. State rep.
By Inspector of Police ] has held that it is not desirable to impose a
conviction solely on the evidence of expert without corroborative evidence
either direct or circumstantial. In this decision the Court has followed the
following decisions of the Supreme Court.

1. 1996 SCC (Crl.) 792
[S.Gopal Reddy v. State of A.P. ]

2. 1977 (2) SCC 210: 1977 SCC (Cri.) 313
[Magan Bihari Lal v.State of Punjab]

3. AIR 1957 SC 381 : 1957 Crl LJ 559
[Ram Chandra v. State of U.P.,]

4. AIR 1963 SC 1728
[Ishwari Prasad Misra v. Mohdn. Isa,]

5. AIR 1964 SC 529
[Shashi Kumar Banerjee v. Subodh Kumar Banerjee]

6. AIR 1967 SC 1326 : 1967 (2) Andh LT 38
[Fakruddin v. State of M.P., ]

30. The same opinion has been rendered by this Court earlier in 2003
M.L.J.Crl.217 [K.Dhanasekaran v. State by Inspector of Police, C.B.,C.I.D.,
Erode].

(iv) with respect to conviction of non appealing accused:

31. In this case, A1 to A3 and A8 have filed petitions for discharge and
the Court below has discharged them and also the other non petitioning accused
viz., A4 to A7. It is legally permissible. The learned Senior Counsel for
respondents has cited the decisions of the Supreme Court for this proposition.
It is held by the Supreme Court in AIR 1988 SC 345 [Hari Nath v. State of U.P.]
that the conviction and sentence of non-appealing accused cannot be sustained
as the findings are inter-dependant and inextricably integrated.

32. A Full Bench of the Supreme Court in its decision JT 1992 (6) S.C.85
[Kameshwar Sing & Ram Babu Singh and others v. State of Bihar] has held that
when other accused are granted benefit of doubt, the non-appealing co-accused
are also entitled for the same grant and consequential acquittal. The same view
has been expressed by the Division Bench of this Court in 1999 (1) L.W. Crl.11
[Sobitharaj /6others v. State rep. by Inspector of Police, Kanyakumari
District.].

33. The learned Senior Counsel also submits that not only at the time of
trial such benefit will go to the accused but also at the time of interlocutory
proceedings, such as, quashing of criminal proceedings against the accused or
seeking for discharge from the case. In 1998 Crl.L.J.4091 (1) [Ashok Chaturvedi
and others v. Shitul H. Chanchani and
another] the Supreme Court while quashing
the private complaint laid against accused persons, it was also also quashed the
criminal proceedings against other accused, who did not prefer special leave
petition.

34. Following the above said decisions, this Court is of the view that
even though A4 to A7 accused have not preferred application for discharge they
are entitled to get the benefit when other co-accused are receiving the same.

35. Mr. R.Anand, learned counsel appearing for the accused 4 to 7 would
cite the decision of Prafulla Kumar Samal’s case supra, in which the Supreme
Court has formulated the Guidelines and principles in the matter of discharge of
the accused from a case followed by Courts. They are as follows:-
“10.Thus, on a consideration of the authorities mentioned above, the
following principles emerge:

(1) That the Judge while considering the question of framing the charges under
section 227 of the Code has the undoubted power to sift and weigh the evidence
for the limited purpose of finding out whether or not a prima facie case against
the accused has been made out:

(2) Where the materials placed before the Court disclose grave suspicion against
the accused which has not been properly explained the Court will be, fully
justified in framing a charge and proceeding with the trial.

(3) The test to determine a prima facie case would naturally depend upon the
facts of each case and it is difficult to lay down a rule of universal
application. By and large however if two views are equally possible and the
Judge is satisfied that the evidence produced before him while giving rise to
some suspicion but not grave suspicion against the accused, he will be fully
within his right to discharge the accused.

(4) That in exercising his jurisdiction under section 227 of the Code the Judge
which under the present Code is a senior and experienced Judge cannot act merely
as a Post office or a mouth-piece of the prosecution, but has to consider the
broad probabilities of the case, the total effect of the evidence and the
documents produced before the Court, any basic infirmities appearing in the case
and so on. This however does not mean that the Judge should make a roving
enquiry into the pros and cons of the matter and weigh the evidence as if he was
conducting a trial.”

36. A conspectus of the materials available in this case in the light of
the illuminating judicial pronouncements of the Supreme Court, it is concluded
that the accused are entitled to discharge from the case. This Court does not
find any valid ground to disturb the findings of the court below. The order of
the lower Court is not suffering from any infirmity, legally or factually. It
has to be confirmed and it is accordingly confirmed. These revision petitions
suffer dismissal.

37. In the result, both the Criminal Revision Cases are dismissed.

ggs

To
The Chief Judicial Magistrate,
Tirunelveli.