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

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.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.

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.

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.

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.

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.

Bhagchand Uttamchand vs The Inspector Of Police on 4 November, 2011

Madras High Court
Bhagchand Uttamchand vs The Inspector Of Police on 4 November, 2011
       

  

  

 
 
 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 04/11/2011

CORAM
THE HONOURABLE MS.JUSTICE R.MALA

Crl.O.P.(MD) No. 8741 of 2011
and
Crl.O.P.(MD) No.9385 of 2011
&
M.P.Nos. 1 and 1 of 2011
and
Crl.O.P.(MD) Nos.8765 to 8767, 8773, 9058, 9282 of 2011

Bhagchand Uttamchand                    .. Petitioner/Accused-1
  Galada		                    in Crl.O.P.(MD)No.8741/2011

E.N.Palanisamy		                 .. Petitioner/Accused-2		
				            in Crl.O.P.(MD)No.9385/2011

vs.

1.The Inspector of Police
   Kodaikanal Police Station
   Dindigul District.                    .. 1st Respondent/Complainant
2.John Roger			         .. 2nd Respondent/Defacto
                                                    complainant
                                                  (in both Crl.O.P.(MD) Nos.
                                                           8741 and 9385 of 2011)
1.C.Vijayakumar
2.Sudhir D.Jain                          .. Petitioners/Accused in
                                            Crl.O.P.(MD)No.8765/2011

J.Govindan				 .. Petitioner/Accused in
                                            Crl.O.P.(MD)No.8766/2011

D.Reuban				 .. Petitioner/Accused in
                                            Crl.O.P.(MD)No.8767/2011

K.C.A.Kurian Abraham			 ..  Petitioner/Accused in
                                             Crl.O.P.(MD)No.8773/2011	
Kannan					 ..  Petitioner/Accused in
                                             Crl.O.P.(MD)No.9058/2011

Bhagchand Uttamchand
Galada/A1				 ..  Petitioner/Accused in
                                             Crl.O.P.(MD)No.9282/2011
vs.

$The state rep. by Inspector of Police
Kodaikkanal Taluk
Kodaikkanal.
(Crime No.203 of 2011)

Prayer

Petitions in Crl.O.P.(MD) Nos. 8741 and 9385 of 2011 filed under
Section 482 of the Code of Criminal Procedure, to call for the records
pertaining to F.I.R.No.203 of 2011 on the file of the first respondent police
and to quash the same.

!For Petitioner
in Crl.O.P(MD)No.8741/2011 … Mr.Vijay Narayan, senior counsel
for Mr.R.R.Kannan
For Petitioner
in Crl.O.P(MD)No.9385/2011 … Mr.R.Yashod Vardhan
senior counsel for
Mr.K.Muthuramalingam
^For Respondent No.1 … Mr.K.Chellapandian
Addl. Advocate General for
Govt. of Tamil Nadu in all Crl.OPs.

For Respondent No.2 … Mr.M.Ajmalkhan in both Crl.O.Ps.

For Petitioners in
Crl.O.P.(MD)Nos.8765,      ... Mr.S.Prabakaran for
8767, 9282/2011                Mr.Arunprasad
For Petitioner in
Crl.O.P(MD)No.8766/2011    ... Mr.S.Muthukumar
For Petitioner in
Crl.O.P(MD)No.8773/2011    ... Mr.S.Alagumani
For Petitioner in
Crl.O.P(MD)No.9058/2011    ... Mr.T.Lenin Kumar

:COMMON ORDER

The petitions in Crl.O.P.Nos.8741 and 9385 of 2011 have been filed by the
first and second accused in Crime No.203 of 2011 on the file of the Inspector of
Police, Kodaikanal.

2.The averments in the petitions are as follows:

(i) The case has been registered against the petitioners/A1 & A2 and
others under Crime No.203 of 2011 for the offences under Sections 147, 148, 448,
294(b), 387 and 420 I.P.C.

(ii) The property bearing D.No.41/67, Welwyn inn Cottage, Kodaikanal
town, Dindigul District, is originally belongs to one John Tapp and he
bequeathed the property to his legal heirs by a will dated 09.10.1939 and the
same was probated vide order dated 16.12.1941 in O.P.No.58 of 1941 on the file
of the District Judge, Madurai.

(iii) On 24.04.1989, the said property has been purchased by Bhagchand
Uttamchand Galada/A1 and his other family members from the legal heirs of John
Tapp vide registered sale deeds. The patta is also stands in their names.

(iv) In the above said property, there were two tenants, one is Mani Iyer
and another Zavior Michael, the father of the second respondent herein. In order
to evict the tenants, the said Galada/A1 has filed R.C.O.P.Nos.2 & 3 of 2001
before the District Munsif at Kodaikanal against the above said tenants. Pending
R.C.O.P. Proceedings, one tenant Mr.Mani Iyer entered into compromise between
Galada, accordingly he vacated the premises by filing joint memo before the Rent
Control Court.

(v) On 10.12.2003, eviction order was passed in R.C.O.P.No.3 of 2001
against Zavior Michael. Against that order, he filed R.C.A.No.1 of 2004 and the
same was allowed on 09.10.2009 by the Appellate authority/Subordinate Judge at
Palani and thereby the eviction order was reversed. Thereafter, the said
Galada/A1 filed C.R.P.(NPD)(MD)No.853 of 2010 before this Hon’ble Court and on
24.08.2010, both parties entered into compromise and accordingly joint memo has
been filed and consent decree was passed by this Court. As per the joint memo,
the said Zavior Michael handed over the possession to Galada in compliance of
the consent decree passed by this Court.

(vi) While being so, on 02.09.2010, Galada/A1 and his family members have
decided to sell the property to one Reuban and executed power of attorney in his
favour. Taking advantage of the circumstances that both the parties are at
Chennai, the said Zavior Michael started to create problem by trespassing into
the property and he demanded further amount for vacating the illegal occupation
in violation of the consent decree passed by this Hon’ble Court.

(vii) In order to purchase peace, the said Galada/A1 and Reuban/A4, the
purchaser of the property have agreed to settle the illegal demands of Zavior
Michael and accordingly, a house property was purchased on 07.02.2011 in the
name of Zavior Michael vide registered sale deed and entire sale consideration
for this purchase of property has been paid by Reuban.The petitioner herein is
the first accused. On perusal of an F.I.R., no offence is made out and that the
entire proceedings arising out of a civil transaction, which is according to the
petitioners/accused have already been settled and attained finality. The present
complaint has been preferred by the defacto complainant only in order to threat
and harass the petitioner for certain extraneous reasons and considerations.

(viii)In order to justify the illegal occupation of the property, on
25.09.2010, son of Zavior Michael, the second respondent herein made a
representation to the Director General of Police, Chennai, seeking police
protection for him and his family members. The above said petition was enquired
by the then Deputy Superintendent of Police in C.S.R.No.501 of 2010 on
15.10.2010. In that enquiry, the defacto complainant and his family members
have requested not to proceed further and prayed to close the said petition,
since the matter was already settled and the second respondent and his family
members have stated that the said petition was sent due to some distress and
without consent of Zavior Michael. Accordingly, the said complaint was closed on
15.10.2010.

(ix) Galada/A1 is a permanent resident of Chennai and even the defacto
complainant is a resident of Chennai and it is only the father of the defacto
complainant who is living in Kodaikanal. The complaint failed to lay down the
factual foundation for making out the offence as alleged.

(x)E.N.Palanisamy/A2 is the Managing Director of M/S.Mookambikai Textile
Mills at Vada Madurai and he is having high reputation and respect in the
society. In fact, the second respondent and his family members are very well
known to the petitioner since from the year 1990 and on several occasions, the
petitioner had helped the second respondent monetarily and on humanitarian
grounds. They had also approached the petitioner to get aid for education and
medical expenses. While being so, the second respondent had lodged a false
complaint and without appreciation of facts and materials, the first respondent
registered the case and investigated the matter in an improper way.

(xi)The entire complaint does not disclose the essential ingredients of an
offence under Sections 147, 148, 448, 294(b), 387 and 420 I.P.C. The entire
proceedings arise out of a civil transaction, which has been already settled and
attained finality by the decree passed by this Court in C.R.P.(NPD)(MD)No.853 of
2010 dated 24.08.2010. Since the consent decree is in existence, the second
respondent has estopped from making contradictory statements in other forum.

(xii)The Apex Court consistently held that there should not be second
F.I.R. for the same offence, in this case also on the complaint, an enquiry was
conducted in C.S.R.No.501 of 2010 on the file of the first respondent and after
enquiry, the matter was closed on 15.10.2010, thereafter on 27.04.2011, the
impugned F.I.R. has been registered on the very same complaint, which is totally
against the principles laid down by the Apex Court.

(xiii)On perusal of F.I.R., the date of alleged occurrence said to have
taken place on 23.04.2010 and the complaint was sent to the Director General of
Police on 25.09.2010 and thereafter, after enquiry on 15.10.2010, C.S.R.No.501
of 2010 was closed as withdrawn. The impugned F.I.R. has been registered on
27.04.2011 after one year from the date of alleged occurrence and there is no
explanation for the said delay in registering the case. The complaint lodged by
the second respondent is clear abuse of the process of the Court and clear
violation of the consent decree passed in civil revision petition. Hence, they
prayed for quashing the F.I.R.

3.The gist and essence of the counter affidavit filed by both the
respondents are as follows:

(i)On the complaint preferred by the defacto complainant before the
Director General of Police, Tamil Nadu, on 25.09.2010, preliminary enquiry was
conducted and inasmuch as prima facie case was established to proceed against
the accused, a case was registered in Crime No.203 of 2011 on the file of the
Kodaikanal Police Station under Sections 147, 148, 448, 294(b), 387 and 420
I.P.C. and investigation was going on.

(ii) The first accused filed a petition before the Rent Controller-cum-
District Munsif, Kodaikanal and obtained a decreetal order in R.C.O.P.No.3 of
2001 dated 10.12.2003 in his favour, against which, the father of the defacto
complainant had preferred R.C.A.No.1 of 2004. On 09.10.2009, the Rent Control
Appellate Authority and Sub-Court, Palani allowed the appeal and eviction order
was set aside, against which, the petitioner/A1 filed C.R.P.(NPD)(MD)No.853 of
2010. In the civil revision petition, which was ended in compromise, without
the knowledge of the family of the defacto complainant, a joint memo of
compromise was entered purportedly at the behest of the second accused, who
acted as the power agent of the father of the defacto complainant and one Reuban
with the active connivance of certain powerful persons just to grab the lands
held by the family of the defacto complainant for more than 40 years. The joint
memo submitted before the Court was mislead to the effect that the possession of
the property was handed over to the petitioner herein which resulted in this
Court passing the said order closing the Civil Revision Petition on 24.08.2010.
On coming to know of the order passed against the father of the defacto
complainant, he has filed an application to recall the order which is pending in
C.R.P.SR.No.38719 of 2011. They have not vacated on their own volition from the
premises. On the other hand, they were forcibly evicted by using force and the
building which stood for more than 85 years were demolished on 07.02.2011 by one
Reuban and his henchmen, who came to the spot with pockalines and bulldozers
took possession of the building forcibly before demolishing them. The strong arm
act was perpetrated with active connivance of powerful people and land grabbers.

(iii) The defacto complainant presented a petition before the Director
General of Police, Chennai on 25.09.2010 stating that at the behest of certain
powerful people, his family is being harassed to vacate the property which was
under their possession and enjoyment for more than 40 years. He was also alleged
that they have been receiving threatening calls and the family head, being a
pastor, a peace loving person engaged in welfare activities were forced to sign
blank papers and inasmuch as the rowdy elements armed with deadly weapons are
frequently visiting their abode, they fear for their life and hence requested
necessary action. The Inspector General of Police, South Zone, also directed the
Deputy Superintendent of Police, Kodaikanal, to take action on the complaint
dated 25.09.2010. With the active connivance of several high-ups, the father of
the defacto complainant was forced to sign a petition withdrawing the said
complaint on 15.10.2010. On the same day, it appears that they got in touch with
one Father Joseph, 72 years old leader of the Minority Community Education
Foundation and appraised of their predicament and on seeing their plight, he
took up cudgels on his behalf and sent petition to the President of India among
others which was forwarded to the hierarchy of Officials and reached the
Superintendent of Police, Dindigul, who verified the veracity of the complaint
and directed the Deputy Superintendent of Police, Nilakottai, in-charge,
Kodaikanal Sub-Division to register a case and investigate the same. On the
instructions given by the Deputy Superintendent of Police, Nilakottai, in-charge
of Kodaikanal Sub-Division on 27.04.2011, the aforesaid case has been registered
and the investigation was taken up which is perfectly legal.

(iv) This is a case where the accused No.1 has used his political and
police power so as to throw away the defacto complainant’s family without
following the due process of law. Since the accused No.1 had continuously
threatened the informant family, the informant’s father Zavior Michael met his
childhood friend one Sivanandi, who is arrayed as A3 in this case. The said
Sivanandi who is serving as Inspector General of Police, Tamil Nadu had
introduced one Palanisamy, who is the petitioner/accused No.2 herein, a mill
owner so as to render assistance to the informant family. The petitioner/A2 had
given a false hope that he would give all legal assistance. The
petitioner/accused No.1 had gained confidence of informant’s family by giving
suggestions to the family. In the mean while, A2 and A3 have been gained by A1
and they have shifted their loyalty in favour of A1 for extraneous
considerations. From 06.06.2010 and 04.10.2010, A2/Palanisamy had continuously
threatened the informant’s father to vacate the premises and A3 had also
threatened to vacate the premises and hand over the same to A1. On 23.04.2010,
the defacto complainant appeared before the Director General of Police and
lodged the present complaint seeking action against the accused No.1 and other
accused persons. The said complaint was forwarded to the Inspector General of
Police, South Zone, Madurai for enquiry. On receipt of the said complaint, the
Inspector General of Police, South Zone, Madurai, had forwarded the same to the
Deputy Superintendent of Police, Kodaikanal to register a case and investigate
into the matter. Though, a specific direction was given by the then Inspector
General of Police, South Zone, that the then Deputy Superintendent of Police,
Kodaikanal had colluded with the accused and not registered any F.I.R. against
the accused. Instead the then D.S.P. Kodaikanal under the pressure from the then
Inspector General of Police, West Zone (Sivanandi) had closed the complaint on
15.10.2010 as if the informant’s father Zavior Michael had requested him to drop
all further proceedings against the accused persons and withdrawn the complaint.
The accused persons had misused the order obtained behind the back of
informant’s family in C.R.P.(NPD)(MD)No.853 of 2010 and the signatures obtained
in the blank sheets by A2.

(v)On 04.10.2010, the Kodaikanal Municipality Chairman one Ibrahim/A5 came
to informant’s house and taken the informant’s father, mother and aunty Rubi to
the house of the former Municipal Chairman one Kurian Abraham/A6. The
petitioner/A2, Reuban/A4, Deva/A6, Soleman/A7, Subbaiah/A12, Thannashi/A13 were
present in the house. At that time, all the accused had threatened the
informant’s father and his family members and obtained signatures in blank and
unfilled documents and white sheet under coercion. Due to the illegal
confinement and life threat made to the informant’s family members, they had no
other go than to sign in the documents as directed by the accused persons.

(vi)The respondent police has come forward to register the case against
the accused, because of the consistent effort of informant’s family. One of the
accused is presently serving as Inspector General of Police and others are
highly influential persons. There is a specific allegations and averments made
in the F.I.R. as well as the statements given under Section 161(3) of Cr.P.C. by
the informant and his family members against A2. That on 04.10.2010, the first
accused and other accused had threatened the informant’s family members and
obtained their signatures under coercion so as to use the same for illegal
purpose. So the averments made in the quash petitions are not correct. The
documents relied on by him are fabricated to grab the property. If really the
possession was handed over by virtue of the order passed in C.R.P., there was no
necessity to enter into a memorandum of understanding on 27.01.2011 for vacating
and handing over the vacant possession of the property. The inconsistent stand
taken by the petitioners/accused in taking possession of the property would go
to prove the case that the defacto complainant and his family members had been
put in fear of death and dishonestly induce them to sign in documents to deprive
of their valuable property.

(vii)A prima facie case of criminal force being used to vacate the family
members of the defacto complainant, prima facie criminal nexus and intention
are clearly made out as an outcome of the investigation, as culled out from the
testimony of Tvl.Fathinathan, Rajesh, Raja, Doss, Vasu, Julie, Kannan, Beulah,
Pandi and Bala who dwell in close proximity to the land in question. It has been
held in cantina of cases both by Apex Court as well as this Court that only in
rare and rarest of cases quashing of F.I.R. should be ordered. The Apex Court
held that the power of quashing an F.I.R. and criminal proceedings should be
exercised sparingly by the Courts. Indeed, the High Court has the extraordinary
or inherent powers to reach out injustice and quash the F.I.R. and criminal
proceedings keeping in view the guidelines laid down by this Court in various
judgements. Hence, they prayed for the dismissal of the petitions.

4.The petitioners in Crl.O.P.(MD)Nos.8765 to 8767, 8773, 9058, 9282 of
2011 filed the above said petitions for anticipatory bail stating that they are
innocent and their names have been falsely implicated in this case. Now they are
apprehending for arrest at the hands of the respondent police, hence they have
come forward with these petitions for seeking anticipatory bail. Heard the
learned counsel for the petitioners/accused and the learned Additional Advocate
General for respondent.

5.It is appropriate to consider the backdrop of the case. The quash
petitions have been filed by the first and second accused to quash the F.I.R.
registered in crime No.203 of 2011 for the alleged offence under Sections 147,
148, 448, 294(b), 387 and 420 I.P.C. pending on the file of the first
respondent police. Even though the complaint was nil dated, it was received by
the Director General of Police on 25.09.2010. So hereafter, for our convenience
sake, it was mentioned as compliant dated 25.09.2010.

6.Admittedly, the property bearing D.No.41/67, Welwyn inn Cottage,
Kodaikanal town, Dindigul District, is originally belongs to one John Tapp and
he bequeathed the property to his legal heirs by a will dated 09.10.1939 and the
same was probated vide order dated 16.12.1941 in O.P.No.58 of 1941 on the file
of the District Judge, Madurai. John Tapp bequeathed all the reminder of his
property movable and immovable wherever situated to his nephew Victor Tapp and
that has been properly probated, after the death of the said John Tapp, Victor
Tapp was filed O.P.No.58 of 1941 before the District Court, Madurai and Letters
of Administration has been issued. The said Victor Tapp/Legatee died on
14.07.1972 at Greenwich, London. The Reserve Bank of India has given a
permission in favour of the legal heirs of Victor Tapp to hold the immovable
properties mentioned therein in terms of Section 31(1) of the Foreign Exchange
Regulation Act, 1973. The licence to hold the immovable properties in India has
been granted in favour of the following four persons viz., (1) John Edward Tapp
(2) Mary Eleanor Rogers (3) Victor Alfred Henry Tapp and (4) Robert Arthur
William Tapp. This disputed property is mentioned as item No.1. Since the heirs
of the said Victor Tapp want to dispose the property, they obtained a
permission from Reserve Bank of India. On 08.08.1988, the heirs executed the
power of attorney in favour of one Rajendrakumar Pukharajmal Lunkad. The first
accused had purchased the property along with three persons vide registered sale
deed dated 24.04.1989 from the power of attorney of legal heirs of Victor Tapp.
The land and building namely, ‘Welwyn’ bearing D.No.17/99 is situated at Old
S.No.50, New T.S.No.22, Kodaikanal Town with an extent of 1.44.0 hec. and the
said property was rented out to the tenants namely, Zavior Michael, who is the
father of the defacto complainant/R2 and one Mani Iyer. Since dispute arose
between the above referred tenants, the petitioner/first accused had preferred
R.C.O.P.Nos.2 and 3 of 2001 against Mani Iyer and Zavior Michael before the Rent
Controller-cum-District Munsif Court, Kodaikanal. R.C.O.P.No.2 of 2001 was
ended in compromise and dismissed as settled out of Court and R.C.O.P.No.3 of
2001 was ordered in his favour. Since the eviction was ordered, the said Zavior
Michael had preferred R.C.A.No.1 of 2004 on the file of the Rent Control
Appellate Authority-cum-Sub-Court Palani, which was allowed on reversing the
fair and decreetal order dated 10.12.2003 made in R.C.O.P.No.3 of 2001, against
which, the first accused herein had preferred C.R.P.(NPD)(MD)No.853 of 2010
against the father of the defacto complainant/R2 and the same has been ended in
compromise on 24.08.2010. The order was passed by recording joint memo filed by
them. The present complaint was presented by the defacto complainant on
25.09.2010 to the Director General of Police for taking steps. That complaint
was closed as withdrawn on the basis of statement given by defacto complainant
and his family members on 15.10.2010. Subsequently, on the intervention of the
Hon’ble President of India, the said complaint was forwarded to the
Superintendent of Police, Dindigul and on the basis of the above complaint dated
25.09.2010, the case has been registered in Crime No.203 of 2011 on 27.04.2011.

7.The learned senior counsels appearing for the petitioners/accused raised
the following grounds for quashing F.I.R.

(i) This case has been generated only on the property dispute. So this
dispute is civil in nature.

(ii) C.R.P.(NPD)(MD)No.853 of 2010 has been disposed of recording the
compromise memo filed by both the parties. Judges’ record is conclusive.

(iii) On the basis of the complaint dated 25.09.2010, which was taken on
file in C.S.R.No.501 of 2010 was closed as withdrawn on 15.10.2010. So the
F.I.R. is liable to be quashed, since F.I.R. has been registered only on the
basis of the complaint dated 25.09.2010.

(iv) Subsequent events proved that the F.I.R. is abuse of process of Court
(i.e.) on 27.01.2011, a memorandum of understanding was entered. In pursuance of
that the defacto complainant’s father got the property on 07.02.2011.

(v) The ingredients of offences have not been prima facie made out, which
was mere abuse of process of Court.

To substantiate their arguments, they relied upon the decisions of Apex Court
and this Court.

8.The learned counsel for the second respondent/defacto complainant
contended that without the knowledge of the defacto complainant,
C.R.P.(NPD)(MD)No.853 of 2010 was disposed of by recording compromise and they
are taking steps to set aside that order. He further submitted that F.I.R. is in
initial stage and there is no necessity to quash the same. The documents
produced by the accused need not be relied upon. To substantiate his argument,
he also relied upon the decisions of the Apex Court and this High Court.

9.The learned counsel for the second respondent Mr.M.Ajmalkhan would
further submit that it is pre-matured to consider the documents filed by the
petitioners. They may very well produce the documents before the investigating
agency and put forth their case. If the charge sheet is filed, they can work
out their remedy to file the petition to quash the charge sheet. It is pre-
matured to quash the F.I.R. at this initial stage, since the case has been
registered only on 27.04.2011.

10.The learned Additional Advocate General has submitted that as soon as
they received the complaint, it was closed as withdrawn. But as soon as the
complaint received from the office of the Hon’ble President, they registered
the case. Now the investigation is going on, witnesses were examined and
Sections 161 & 164 Cr.P.C. statements were recorded. So it is very pre-matured
stage to decide the quash petitions. Hence, he prayed for the dismissal of the
petitions.

11.Considering the rival submissions as well as perusal of the record,
this Court has considered the following points.

Whether the documents filed by the accused to be looked into?
The learned counsel for the defacto complainant/R2 has submitted that the
documents filed by the petitioners/accused could not be relied upon, since the
case is in initial stage and the documents are not accepted by the defacto
complainant. Hence he prayed for the dismissal of the quash petitions.

12.At this juncture, it is appropriate to consider the following decisions
relied upon by both sides counsel.

(i)AIR 1992 SC 1379 (Smt.Chand Dhawan v. Jawahar Lal and others) in
paragraphs-6 and 8, it is held as follows:

“6.The High Court, relying on the decision of this Court in State of Bihar
v. Murad Ali Khan, AIR
1989 SC 1, pointed out that when the High Court is called
upon to exercise the jurisdiction to quash a proceeding at the stage of the
magistrate taking cognizance of an offence, the High Court is guided by the
allegations whether those allegations set out in the complaint or the charge-
sheet do not in law constitute or spell out any offence and that resort to
criminal proceedings within the circumstances amount to an abuse of the process
of the court or not. The High Court, has however, in approaching the question
misdirected itself in analysing the truth or otherwise of the allegations on the
basis of the materials which could not be relied on without legal proof. It is
not disputed that the complaint filed by the appellant does disclose an offence
under section 494, I.P.C. The allegations made by the complainant in law
constitute and spell out an offence. If so, the only question that could have
been considered at this stage is whether the continuance of the proceedings
would be an abuse of the process of the court. This court has in various
decisions examined the scope of the power under section 482, Cr.P.C., and has
reiterated the principle that the High Court can exercise its inherent
jurisdiction of quashing a criminal proceedings only when the allegations made
in the complaint do not constitute an offence or that the exercise of the power
is necessary either to prevent the abuse of the process of the court or
otherwise to secure the ends of justice. No inflexible guidelines or rigid
formula can be set out and it depends upon the facts and circumstances of each
case wherein such power should be exercised. When the allegations in the
complaint prima facie constitute the offence against any or all of the
respondents in the absence of materials on record to show that the continuance
of the proceedings would be an abuse of the process of the court or would defeat
the ends of justice, the High Court would not be justified in quashing the
complaint.

8. .. .. The High Court was not justified in reaching the conclusion that
the proceedings were liable to be quashed on the basis of additional materials
produced by the accused as those were required to be proved. When those
materials were not accepted by the complainant.

(ii)AIR 2005 SC 359 (State of Orissa v. Debendra Nath Padhi) in paragraph-
21, it is held as follows:

“Regarding the argument of accused having to face the trial despite being
in a position to produce material of unimpeachable character of sterling
quality, the width of the powers of the High Court under Section 482 of the Code
and Article 226 of Constitution of India is unlimited whereunder in the
interests of justice the High Court can make such orders as may be necessary to
prevent abuse of the process of any Court or otherwise to secure the ends of
justice within the parameters laid down in Bhajan Lal’s case.”

“21. It is evident from the above that this Court was considering the rare
and exceptional cases where the High Court may consider unimpeachable evidence
while exercising jurisdiction for quashing under Section 482 of the Code. In the
present case, however, the question involved is not about the exercise of
jurisdiction under Section 482 of the Code where along with the petition the
accused may file unimpeachable evidence of sterling quality and on that basis
seek quashing, but is about the right claimed by the accused to produce material
at the stage of framing of charge.”

(iii) (2011) 3 SCC 351 (Harshendra Kumar D. v. Rebatilata Koley and
others
) in paragraphs-25 and 26, it is held as follows:

“25.In our judgment, the above observations cannot be read to mean that in
a criminal case where trial is yet to take place and the matter is at the stage
of issuance of summons or taking cognizance, materials relied upon by the
accused which are in the nature of public documents or the materials which are
beyond suspicion or doubt, in no circumstance, can be looked into by the High
Court in exercise of its jurisdiction under Section 482 or for that matter in
exercise of revisional jurisdiction under Section 397 of the Code. It is fairly
settled now that while exercising inherent jurisdiction under Section 482 or
revisional jurisdiction under Section 397 of the Code in a case where complaint
is sought to be quashed, it is not proper for the High Court to consider the
defence of the accused or embark upon an enquiry in respect of merits of the
accusations. However, in an appropriate case, if on the face of the documents –
which are beyond suspicion or doubt – placed by accused, the accusations against
him cannot stand, it would be travesty of justice if accused is relegated to
trial and he is asked to prove his defence before the trial court. In such a
matter, for promotion of justice or to prevent injustice or abuse of process,
the High Court may look into the materials which have significant bearing on the
matter at prima facie stage.

26.Criminal prosecution is a serious matter; it affects the liberty of a
person. No greater damage can be done to the reputation of a person than
dragging him in a criminal case. In our opinion, the High Court fell into grave
error in not taking into consideration the uncontroverted documents relating to
the appellant’s resignation from the post of Director of the Company. Had these
documents been considered by the High Court, it would have been apparent that
the appellant has resigned much before the cheques were issued by the Company. ”

(iv) (2009) 1 SCC 681 (B.Jagdish and another v. State of Andhra Pradesh
and another) in paragraph-24, it is held as follows:

“24.The question is as to whether the High Court should have
interfered with the order summoning the appellant at this stage? It is now a
well settled principle of law that at the stage of quashing of an order taking
cognizance, an accused cannot be permitted to use the material which would be
available to him only as his defence. In his defence, the court would be left to
consider and weigh materials brought on record by the parties for the purpose of
marshalling and appreciating the evidence. The jurisdiction of the Courts, at
this stage, is limited as whether a case of reckless/gross negligence has been
made out or not will depend upon the facts of each case.”

In the above citations, it was held that in the quash application,
unimpeachable, sterling document can be looked into. But, in the case on hand,
most of the documents filed by the petitioners/accused are public documents
either Court proceedings or the registered documents. In such circumstances, as
per the dictum of the Apex Court, I am of the considered view that the Court is
empowered to be considered those documents in quash applications.

13.Now this Court has to consider the following decisions relied upon by
both sides for what circumstance, the F.I.R. is liable to be quashed.

(i) 1992 SCC (Crl) 426 (State of Haryana and others v. Bhajan Lal and
others
), in para-102, it is held as follows:

“102. In the backdrop of the interpretation of the various relevant
provisions of the code under Chapter XIV and of the principles of law enunciated
by this Court in a series of decisions relating to the exercise of the
extraordinary power under Article 226 or the inherent powers under Section 482
of the Code which we have extracted and reproduced above, we give the following
categories of cases by way of illustration wherein such power could be exercised
either to prevent abuse of the process of any Court or otherwise to secure the
ends of justice, though it may not be possible to lay down any precise, clearly
defined and sufficiently channelised and inflexible guidelines or rigid formulae
and to give an exhaustive list of myriad kinds of cases wherein such power
should be exercised.

(1) Where the allegations made in the first information report or the
complaint, even if they are taken at their face value and accepted in their
entirety do not prima facie constitute any offence or make out a case against
the accused.

(2) Where the allegations in the First Information Report and other
materials, if any, accompanying the F.I.R do not disclose a cognizable offence,
justifying an investigation by police officers under Section 156(1) of the Code
except under an order of Magistrate within the purview of Section 155(2) of the
Code.

(3) Where the uncontroverted allegations made in the F.I.R. or complaint
and the evidence collected in support of the same do not disclose the commission
of any offence and make out a case against the accused.

(4) Where the allegations in the F.I.R. do not constitute a cognizable
offence but constitute only a non-cognizable offence, no investigation is
permitted by a police officer without an order of a Magistrate as
contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and
inherently improbable on the basis of which no prudent person can ever reach a
just conclusion that there is sufficient ground for proceeding against the
accused.

(6) Where there is an express legal bar engrafted in any of the provisions
of the Code or the concerned Act (under which a criminal proceeding is
instituted) to the institution and continuance of the proceedings and/or where
there is a specific provision in the Code or the concerned Act, providing
efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide
and/or where the proceeding is maliciously instituted with an ulterior motive
for wreaking vengeance on the accused and with a view to spite him due to
private and personal grudge.”

(ii) (1995) 6 SCC 194 (Rupan Deol Bajaj (MRS) and another v. Kanwar Pal
Singh Gill and Another) and (B.R.Bajaj v. State of Punjab and others) in
paragraph-8, it is held as follows:

“8.The question under what circumstances and in what categories of cases
the High Court can quash an F.I.R. or a complaint in exercise of its powers
under Article 226 of the Constitution of India or under Section 482 Cr.P.C. has
had been engaging the attention of this Court for long. Indeed, the learned
counsel for the parties invited our attention to some of those decisions. We
need not, however, refer to them as in State of Haryana v. Bhajan Lal 1992 Supp
(1) SCC 335 this Court considered its earlier decisions. ..
.. .. We also give a note of caution to the effect that the power of
quashing a criminal proceeding should be exercised very sparingly and with
circumspection and that too in the rarest of rare cases; that the court will not
be justified in embarking upon an enquiry as to the reliability or genuineness
or otherwise of the allegations made in the FIR or the complaint and that the
extraordinary or inherent powers do not confer an arbitrary jurisdiction on the
court to act according to its whim or caprice.”

(iii) 1995 SCC (cri) 387 (State of T.N. v. Thirukkural Perumal), in
paragraph-4, it is held as follows:

“4.M.S.K.Shanmugovol Chettiyar lodged a first information report at P.S.
Tallakulam against the respondents alleging commission of offences under
Sections 147/148/342/323/395/506 (ii) and 109 IPC. Investigation was taken in
hand and some evidence was collected by the investigating agency. The respondent
filed a petition under Section 482 Cr.P.C. in the High Court and by the impugned
order the petition was allowed and the proceedings emanating from Crime Case
No.246 of 1992 (supra) were quashed. From a bare perusal of the order of the
learned single Judge it appears that while quashing the proceedings, reliance
has been placed upon some evidence collected by the investigating agency during
the investigation. The approach of the learned Judge in relying upon such
evidence, which is yet to be produced before the trial court, to quash the
criminal proceedings in Crime Case No.246 of 1992 (supra) was not proper. The
power of quashing an FIR and criminal proceedings should be exercised sparingly
by the Courts. Indeed, the High Court has the extra-ordinary or inherent power
to reach out injustice and quash the First Information Report and criminal
proceedings, keeping in view the guidelines laid down by this Court in various
judgments (reference in this connection may be made with advantage to State of
Haryana v. Bhajan Lal
(1992 Supp. (1) 335) but the same has to be done with
circumspection. The normal process of the criminal trial cannot be cut short in
a rather casual manner. The Court, is not justified in embarking upon an enquiry
as to the reliability or genuineness of the allegations made in the FIR or the
complaint on the basis of the evidence collected during investigation only while
dealing with a petition under Section 432 Cr.P.C. seeking the quashing of the
FIR and the criminal proceedings. The learned single Judge apparently fell into
an error in evaluating the genuineness and reliability of the allegations made
in the FIR on the basis of the evidence collected during the investigation. The
order of the learned single Judge cannot, therefore, be sustained. This appeal
succeeds and is allowed. The impugned order of the High Court is hereby set
aside.”

(iv) (2000) 8 SCC 115 (Mahavir Prashad Gupta and another v. State of
National Capital Territory of Delhi and others) in paragraph-5, it is stated as
follows:

“If complaint itself discloses an offence, High Court should not embark
upon an inquiry as to genuineness of the allegations made in the complaint or
whether those allegations were likely to be established on evidence or not.
“5.The law on the subject is very clear. In the case of State of Bihar v.
Murad Ali Khan
reported in 1988 (4) SCC 655, it has been held that jurisdiction
under Section 482 of the Code of Criminal Procedure has to be exercised
sparingly and with circumspection. It has been held that at an initial stage a
Court should not embark upon an inquiry as to whether the allegations in the
complaint are likely to be established by evidence or not. Again in the case of
State of Haryana v. Bhajan Lal reported in 1992 Supp (1) SCC 335, this Court has
held that the power of quashing criminal proceedings must be exercised very
sparingly and with circumspection and that too in the rarest of rare cases. It
has been held that the Court would no be justified in embarking upon an inquiry
as to the reliability or genuineness or otherwise of the allegations made in the
FIR or the complaint. It has been held that the extraordinary or inherent powers
did not confer an arbitrary jurisdiction on the Court to act according to its
whim or caprice.

(v)(2002) 3 SCC 89 (State of Karnataka v. M.Devendrappa and another) in
paragraphs-7 to 9, it is held as follows:

“7. In R.P.Kapur v. State of Punjab, this Court summarized some categories
of cases where inherent power can and should be exercised to quash the
proceedings.

(i) Where it manifestly appears that there is a legal bar against the
institution or continuance, e.g. want of sanction;

(ii) Where the allegations in the first information report or complaint taken
at its face value and accepted in their entirety do not constitute the offence
alleged;

(iii) Where the allegations constitute an offence, but there is no legal
evidence adduced or the evidence adduced clearly or manifestly fails to prove
the charge.

8. .. .. At the same time the section is not an instrument handed over to
an accused to short-circuit a prosecution and bring about its sudden death. The
scope of exercise of power under Section 482 of the Code and the categories of
cases where the High Court may exercise its power under it relating to
cognizable offences to prevent abuse of process of any Court or otherwise to
secure the ends of justice were set out in some detail by this Court in State of
Haryana v. Bhajan Lal. A
note of caution was, however, added that the power
should be exercised sparingly and that too in rarest of rare cases. .. ..

9.As noted above, the powers possessed by the High Court under Section 482
of the Code are very wide and the very plenitude of the power requires great
caution in its exercise. Court must be careful to see that its decision in
exercise of this power is based on sound principles. The inherent power should
not be exercised to stifle a legitimate prosecution. The High Court being the
highest Court of a State should normally refrain from giving a prima facie
decision in a case where the entire facts are incomplete and hazy, more so when
the evidence has not been collected and produced before the Court and the issues
involved, whether factual or legal, are of magnitude and cannot be seen in their
true perspective without sufficient material. Of course, no hard-and-fast rule
can be laid down in regard to cases in which the High Court will exercise its
extraordinary jurisdiction of quashing the proceeding at any stage. [See: Janata
Dal v. H.S. Chowdhary and Raghubir Saran (Dr)
v. State of Bihar). It would not
be proper for the High Court to analyse the case of the complainant in the light
of all probabilities in order to determine whether a conviction would be
sustainable and on such premises arrive at a conclusion that the proceedings
are to be quashed. It would be erroneous to assess the material before it and
conclude that the complaint cannot be proceeded with. In proceeding instituted
on complaint, exercise of the inherent powers to quash the proceedings is called
for only in a case where the complaint does not disclose any offence or is
frivolous, vexatious or oppressive. .. .. ”

(vi) (2008) 2 SCC (cri) 430 (Central Bureau of Investigation v.
K.M.Sharan)
in paragraphs-25 and 26, it is stated as follows:
“25.This court in Janata Dal v. H.S. Chowdhary observed thus: (SCC p.355,
para 132)

132. The criminal courts are clothed with inherent power to make such
orders as may be necessary for the ends of justice. Such power though
unrestricted and undefined should not be capriciously or arbitrarily exercised,
but should be exercised in appropriate cases, ex debito justitiae to do real and
substantial justice for the administration of which alone the courts exist. The
powers possessed by the High Court under Section 482 of the Code are very wide
and the very plenitude of the power requires great caution in its exercise.
Courts must be careful to see that their decision in exercise of this power is
based on sound principles.

26.This court in Roy V.D. v. State of Kerala observed thus: (SCC p.597,
para 18)
“18. It is well settled that the power under Section 482 Cr.P.C has to be
exercised by the High Court, inter alia, to prevent abuse of the process of any
court or otherwise to secure the ends of justice. Where criminal proceedings are
initiated based on illicit material collected on search and arrest which are per
se illegal and vitiate not only a conviction and sentence based on such material
but also the trial itself, the proceedings cannot be allowed to go on as it
cannot but amount to abuse of the process of the court; in such a case not
quashing the proceedings would perpetuate abuse of the process of the court
resulting in great hardship and injustice to the accused. In our opinion,
exercise of power under Section 482 Cr.P.C. to quash proceedings in a case like
the one on hand, would indeed secure the ends of justice.

(vii)(2009) 8 SCC 787 (State of Maharashtra v. Sayed Mohammed Masood and
Another)
in paragraph-11, it is held as follows:

“11. The legal position in regard to exercise of jurisdiction by the High
Court for quashing of an FIR is now well settled. It is not necessary for us to
delve deep thereinto as the propositions of law have recently been stated by
this Court in R.Kalyani v.Janak C.Mehta (2009) 1 SCC 516 in the following terms:

15. Propositions of law which emerge from the said decisions are :
(1) The High Court ordinarily would not exercise its inherent jurisdiction
to quash a criminal proceeding and, in particular, a First Information Report
unless the allegations contained therein, even if given face value and taken to
be correct in their entirety, disclosed no cognizable offence.
(2) For the said purpose, the Court, save and except in very exceptional
circumstances, would not look to any document relied upon by the defence.
(3) Such a power should be exercised very sparingly. If the allegations
made in the FIR disclose commission of an offence, the court shall not go beyond
the same and pass an order in favour of the accused to hold absence of any mens
rea or actus reus.

(4) If the allegation discloses a civil dispute, the same by itself may
not be a ground to hold that the criminal proceedings should not be allowed to
continue.

The cantina of citations would settle the legal position regarding the exercise
of jurisdiction for quashing of criminal proceedings by the High Court, the
power of quashing criminal proceedings should be exercised very sparingly and
with circumspection and that too in the rarest of rare cases.

14.Now this Court has to decide whether the case on hand is rarest in rare
cases?. At this juncture, it is appropriate to consider the dictum laid down in
State of Haryana v. Bhajan Lal’s case. The learned counsel for the
petitioners/accused would rely upon the clauses-3 and 7 in para-102 of the above
said decision reported in 1992 SCC (Crl) 426 (State of Haryana and others v.
Bhajan Lal and others
), which are extracted hereunder:
“(3) Where the uncontroverted allegations made in the F.I.R. or complaint
and the evidence collected in support of the same do not disclose the commission
of any offence and make out a case against the accused.

(7) Where a criminal proceeding is manifestly attended with mala fide
and/or where the proceeding is maliciously instituted with an ulterior motive
for wreaking vengeance on the accused and with a view to spite him due to
private and personal grudge.”

15.Now this Court has to decide whether the present F.I.R. is abuse of
process of law, where the proceeding is maliciously instituted with an ulterior
motive for wreaking vengeance on the accused.

(i) It is appropriate on the part of this Court to consider the arguments
advanced by both sides in respect of previous civil dispute. The subject matter
of the issue is only the property situated at Kodaikanal town. While perusing
the documents filed by the accused, the said Zavior Michael, who is none other
than the father of the defacto complainant/R2 has declared as a tenant. In his
own document, he himself filed a suit in O.S.No.30 of 1989 on the file of the
District Munsif Court, Kodaikanal against John Edward Tapp and R.P.Lunkad and
sought for a prayer as follows:

“For declaring the plaintiff is the “statutory tenant” under the Rent
Control Act and consequently, pass an order of permanent injunction against the
defendant restraining the defendant, their subordinates, men or agents seeking
to interfere with the plaintiff’s peaceful possession and enjoyment until the
plaintiff evicts under due process of Court of law. ”

(ii) It is pertinent to note that the first accused herein filed
O.S.No.179 of 1990 for declaration of title and recovery of possession. The
written statement filed by Zavior Michael on 12.04.1993, in which, he has stated
as follows:

“The defendant is in physical possession of the entire extent of suit
property and all the building therein. The defendant took the suit property on
lease from Mrs.Henderson the power agent of Mr.Victor Tapp who was managing the
suit property as care taker. Ever since tenancy in 1974, the defendant has been
in exclusive possession of the suit property which is called Welwyn Bungalow.”

(iii) Furthermore, Zavior Michael filed another suit on 17.05.1995 for
declaration of title that he is the owner of the property and also for
consequential injunction. He was examined as R.W.1 in R.C.O.P.No.3 of 2001 in
that, he has fairly conceded in his cross-examination that he has filed
O.S.No.30 of 1989. His candid admission is that the property belongs to Victor
Tapp and he is a tenant under him and paid rent of Rs.65/-. So his statement has
clearly proved that the father of the defacto complainant was only a tenant.
Furthermore, the first accused herein had filed R.C.O.P.No.3 of 2001 and
eviction has been ordered against which, Zavior Michael preferred R.C.A.No.1 of
2004, which was allowed, against which, the land lord, who is the first accused
herein had preferred C.R.P.(NPD)(MD)No.853 of 2010, which was ended in
compromise. A joint compromise memo has been filed and that has been recorded.
But now the second respondent/defacto complainant has disputed the compromise
memo filed before this Court. So the above facts are clearly proved that it is
only a civil dispute.

16.As already discussed that there was a civil dispute, which was ended in
compromise on 24.08.2010. Thereafter, this complaint has been generated on
25.09.2010. At this juncture, it is appropriate to consider the complaint given
by the second respondent, in which, it was stated as follows:
“Subject: Request for police protection since our entire family is facing
threatening of life by anti-social elements with deadly weapons and lot of
muscle power-immediate action requested.”

While perusing the complaint, he never mentioned that since R.C.A.No.1 of 2004
has been allowed, C.R.P.(NPD)(MD)No.853 of 2010 has been filed and ended in
compromise. The complaint was received by the Director General of Police, Tamil
Nadu, Camp on 25.09.2010 and forwarded the same to the Inspector General of
Police, Southern Zone, Madurai, for enquiry and report. Then, Deputy
Superintendent of Police, Kodaikanal was directed by the Inspector General of
Police, Southern Zone, Madurai to register the case and investigate. After
enquiry, report has been sent on 09.11.2010 to the Director General of Police,
Chennai, in which, it was specifically mentioned that the defacto complainant
has given a letter stating that no need to pursue the same. The letter dated
05.10.2010 was signed by the defacto complainant, son-in-law, daughter,
daughter-in-law. On that basis, C.S.R.No.501 of 2010 has been closed. But it is
not the case of the defacto complainant/R2 that after giving complaint on
25.09.2010, he was forced to give such statement and their signatures were
obtained. Admittedly, no complaint was preferred after 25.09.2010 till F.I.R.
registered on 27.04.2011.

17.At this juncture, it is pertinent to note that the defacto complainant
had brought to the notice of his plight to the religious heads in minority
community. One Rev.Fr. Joseph, leader of Minority Community Education and
Foundation on knowing the plight of the defacto complainant, had written a
letter to the Hon’ble President of India and other officials and a communication
was given to the Superintendent of Police, Dindigul District from the office of
the Hon’ble President of India for taking appropriate action. On receipt of the
said communication, on 27.04.2011, a case has been registered in Crime No.203
2011 for the offences under Sections 147, 148, 448, 294(b), 387 and 420 I.P.C.
against the accused 1 and 2.

18.On perusal of the file relating to C.S.R.No.501 of 2010, it is seen
that one Rev.Fr.Joseph, Chennai Education Foundation, Chennai, Tamil Nadu, has
sent a representation to the Hon’ble President on 01.10.2010 stating that
atrocities at Minority(Christian) Community at Dindigul, Tamil Nadu. That
complaint was sent along with the news published in Nakkeeran (Tamil Bi-Weekly
Magazine). On that basis, report has been called for on 20.04.2011 and result
of enquiry was forwarded by Additional Superintendent of Police, Dindigul.
Thereafter, the case has been registered on 27.04.2011. It is pertinent to note
that there is no complaint was preferred by the defacto complainant after
05.10.2010.

19.The learned senior counsel for the petitioners/accused submitted that
clauses-(3) and (7) in the referred para-102 in 1992 SCC (Crl) 426 (cited supra)
are applicable to the facts of the present case. Clause-(3) is extracted
hereunder:

“(3)Where the uncontroverted allegations made in the F.I.R. or complaint
and the evidence collected in support of the same do not disclose the commission
of any offence and make out a case against the accused.”

They mainly focussed their forceful argument that the defacto complainant’s
father is a tenant, who was evicted under due process of law. He has not filed
any application to set aside the order passed in C.R.P.(NPD)(MD)No.853 of 2010.
He filed only C.R.P.Sr.No.38719 of 2011 to recall the order made in C.R.P.,
which was yet to be numbered. It is pertinent to note that after filing of
counter affidavit by R1 in quash petitions, the petitioners initiated contempt
proceedings against R1. Then only, R2 filed C.R.P.Sr.No.38719 of 2011.
Admittedly, on 07.02.2011, after the complaint, the property worth about
Rs.40,00,000/- has been registered in the name of the tenant viz., Zavior
Michael and wherein the family members of the defacto complainant are residing
and the same was also admitted in the counter affidavit filed by the defacto
complainant/second respondent. Since it is a civil dispute, if at all Zavior
Michael is having any ill feeling, he can very well work out his remedy before
the Civil Court of law instead of filing criminal proceedings.

20.Now this Court has to follow the dictum laid down in 1992 SCC (Crl) 426
(State of Haryana and others v. Bhajan Lal and others). Considering the facts of
the case, the property was purchased by the first accused, who also filed
R.C.O.P.No.3 of 2001 against the father of the second respondent and obtained an
order of eviction. That eviction order was set aside by the Rent Controller
Appellate Authority, Sub-Court Palani in R.C.A.No.1 of 2004, against which, the
first accused had preferred a revision in C.R.P.(NPD)(MD)No.853 of 2010, which
was ended in compromise on 24.08.2010.

21.The learned counsel for the defacto complainant/second respondent would
submit that the aforestated joint compromise memo has not been signed by the
father of the defacto complainant, who is a tenant and a fraud has been played
upon before the Court and obtained an order. They had filed an application to
recall that order which is still pending.

22.At this juncture, the learned counsel for the petitioners would rely
upon the following decisions for the propositions (i.e.) consent/ compromise
decree is valid, until it was set aside by the same Court and Judges’ record is
conclusive.

(i) (2010) 5 SCC 104 (Shanti Budhia Vesta Patel and others v. Nirmala
Jayprakash Tiwari and others
), in which, it was held as follows:
“Consent decree recorded on basis of compromise entered into on behalf of
appellants by their power of attorney holder. Burden to prove that compromise
was tainted by coercion or fraud lies upon party alleging the same. If coercion
or fraud is alleged, it must be set out with full material particulars.
Appellants failed to furnish full and precise particulars with regard to the
alleged fraud. Consent decree is valid.”

(ii) (2007) 1 MLJ 257 (Hawa Ummal v. Mohammed Yousuf (deceased) and
others) in paragraphs-10 and 23, it was held as follows:
“10. .. .. the Supreme Court has held that on compliance of order 23 Rule
3 C.P.C., in terms of Order 3 Rule 1 C.P.C., the counsel can act on behalf of
the parties and held that it is not open to the appellant to contend to the
contrary.

23.The record of the proceedings made by the Court is sacrosanct and the
parties cannot dispute the correctness of the Court proceedings on record. ‘The
Judges’ record was conclusive. Neither lawyer nor litigant may claim to
contradict it, except before the Judge himself, but nowhere else. The Court
could not launch into inquiry as to what transpired in the High Court.”

(iii) AIR 2003 SC 4596 (Jineshwardas (D) by Lrs. and others v. Smt.Jagrani
and another) in paragraphs-39 and 40, it was held as follows:
“39. To insist upon the party himself personally signing the agreement or
compromise would often cause undue delay, loss and inconvenience, especially in
the case of non-resident persons. It has always been universally understood that
a party can always act by his duly authorized representative. If a power of
attorney holder can enter into an agreement or compromise on behalf of his
principal, so can counsel, possessed of the requisite authorization by
vakalatnama, act on behalf of his client. Not to recognise such capacity is not
only to cause much inconvenience and loss to the parties personally, but also to
delay the progress of proceedings in Court. If the legislature had intended to
make such a fundamental change, even at the risk of delay, inconvenience and
needless expenditure, it would have expressly so stated.

40. Accordingly, we are of the view that the words ‘in writing and signed
by the parties’, inserted by the C.P.C. (Amendment) Act, 1976, must necessarily
mean, to borrow the language of Order III, Rule 1 C.P.C.

“any appearance, application or act in or to any Court, required or
authorised by law to be made or done by a party in such Court, may except where
otherwise expressly provided by any law for the time being in force, be made or
done by the party in person, or by his recognized agent or by a pleader,
appearing, applying or acting as the case may be, on his behalf.
Provided that any such appearance shall, if the Court so directs, be made
by the party in person.”

(iv) AIR 1988 SC 400 (Gurpreet Singh v. Chatur Bhuj Goel), in paragraph-
10, it is held as follows:

“10.Under R. 3 as it now stands, when a claim in suit has been adjusted
wholly or in part by any lawful agreement or compromise, the compromise must be
in writing and signed by the parties and there must be a completed agreement
between them. To constitute an adjustment, the agreement or compromise must
itself be capable of being embodied in a decree. When the parties enter into a
compromise during the hearing of a suit or appeal, there is no reason why the
requirement that the compromise should be reduced in writing in the form of an
instrument signed by the parties should be dispensed with. The Court must
therefore insist upon the parties to reduce the terms into writing.”

(v) (2007) 4 SCC 241 (Bhagubhai Dhanabhai Khalasi and another v. State of
Gujarat and others) in paragraph-13, it is held as follows:
“13.There is nothing on record to show that the Division Bench while
entertaining the letters patent appeal intended to enter into any other
question. Judges’ record as is well known is final and conclusive. Any dispute
in relation thereto must be raised before the same Court.”

(vi) (2005) 4 SCC 120 (Commissioner of Endowments and others v. Vittal Rao
and others
) in which, it was stated as follows:

“On facts held, compromise order cannot be annulled on ground that compromise
was not in writing and was not signed by the petitioner.”

(vii) AIR 1982 SC 1249 (State of Maharashtra v. Ramdas Shrinivas Nayak and
another) in paragraphs-4 and 7, it is held as follows:

“4. .. .. If the Judges say in their judgment that something was done,
said or admitted before them, that has to be the last word on the subject. The
principle is well-settled that statements of fact as to what transpired at the
hearing, recorded in the judgment of the court, are conclusive of the facts so
stated and no one can contradict such statements by affidavit or other evidence.
If a party thinks that the happenings in Court have been wrongly recorded in a
judgment, it is incumbent upon the party. While the matter is still fresh in the
minds of the Judges, to call the attention of the very Judges who have made the
record to the fact that the statement made with regard to his conduct was a
statement that had been made in error.

7.So the Judges’ record is conclusive. Neither lawyer nor litigant may
claim to contradict it, except before the Judge himself, but nowhere else.”

So unless the order passed in C.R.P.(NPD)(MD)No.853 of 2010 has been set aside,
that order is valid and conclusive.

23. Order of this Court in C.R.P.(NPD)(MD)No.853 of 2010 dated 24.08.2010,
in which, it was stated as follows:

“The respondent accept that the revision petitioner is the landlord and
also handed over the possession to the revision petitioner and the revision
petitioner took possession of the same and as on today he is in actual
possession.”

In the decreetal order, it was stated as follows”

“1)That the petitioner be and hereby is declared as the land lord since
the respondent already handed over the possession of the property.

2)That the respondents shall not have any interest in respect of the
property.

3)That this petition be and hereby is closed as per the joint memo.”

After a month only, the present complaint has been preferred by the defacto
complainant. Admittedly, the defacto complainant had suppressed the order
passed in C.R.P.(NPD)(MD)No.853 of 2010 on 24.08.2010. As per the counter
affidavit filed by the defacto complainant, in paragraph-8, he has stated that
on coming to know of the order passed against his father, he has filed a
petition for recall before this Court in C.R.P.SR.No.38719 of 2011 and the same
is pending and filed only after filing of the application which is yet to be
numbered, as per the version of the learned counsel for the second respondent.
It is clearly proved that the dispute between the first accused and the defacto
complainant’s father is only a civil dispute.

24.It is pertinent to note as per the dictum of the Bhajanlal’s case,
criminal proceedings should not be encouraged, when it is found to be mala
fide or otherwise an abuse of the process of the Court. Superior Courts while
exercising this power should also strive to serve the ends of justice. Now it is
appropriate to consider the decisions relied upon by the learned counsel for the
petitioners/accused.

(i) (2007) 14 SCC 776 (All Cargo Movers (India) Private Limited and others
v. Dhanesh Badarmal Jain and
another) in paragraph-16, it is held as follows:

“16. .. .. Where a civil suit is pending and the complaint petition has
been filed one year after filing of the civil suit, we may for the purpose of
finding out as to whether the said allegations are prima facie correct, take
into consideration the correspondences exchanged by the parties and other
admitted documents. It is one thing to say that the Court at this juncture would
not consider the defence of the accused but it is another thing to say that for
exercising the inherent jurisdiction of this Court, it is impermissible also to
look to the admitted documents. Criminal proceedings should not be encouraged,
when it is found to be mala fide or otherwise an abuse of the process of the
Court. Superior Courts while exercising this power should also strive to serve
the ends of justice.”

(ii) AIR 2008 SC 1683 (Suryalakshmi Cotton Mills Ltd., v. Rajvir
Industries Ltd., & Others)
in paragraph-22, it is held as follows:
“22.Ordinarily, a defence of an accused although appears to be plausible
should not be taken into consideration for exercise of the said jurisdiction.
Yet again, the High Court at that stage would not ordinarily enter into a
disputed question of fact. It, however, does not mean that documents of
unimpeachable character should not be taken into consideration at any cost for
the purpose of finding out as to whether continuance of the criminal proceedings
would amount to an abuse of the process of Court or that the complaint petition
is filed for causing mere harassment to the accused. While we are not oblivious
of the fact that although a large number of disputes should ordinarily be
determined only by the civil courts, but criminal cases are filed only for
achieving the ultimate goal namely to force the accused to pay the amount due to
the complainant immediately. The Courts on the one hand should not encourage
such a practice; but, on the other, cannot also travel beyond its jurisdiction
to interfere with the proceeding which is otherwise genuine. The Courts cannot
also lose sight of the fact that in certain matters, both civil proceedings and
criminal proceedings would be maintainable.”

(iii) (2010) 10 SCC 673 (Manoj Mahavir Prasad Khaitan v. Ram Gopal Poddar
and
another) in para-12, it is held as follows:

“12.We reiterate that when the criminal Court looks into the complaint, it
has to do so with an open mind. True it is that that is not the stage for
finding out the truth or otherwise in the allegations; but where the allegations
themselves are so absurd that no reasonable man would accept the same, the High
Court could not have thrown its arms in the air and expressed its inability to
do anything in the matter. Section 482 Cr.P.C. is a guarantee against injustice.
The High Court is invested with the tremendous powers thereunder to pass any
order in the interests of justice. Therefore, this would have been a proper case
for the High Court to look into the allegations with the openness and then to
decide whether to pass any order in the interests of justice. In our opinion,
this was a case where the High Court ought to have used its powers under Section
482 Cr.P.C.”

(iv) (2008) 1 SCC (Cri) 259 (Inder Mohan Goswami and another v. State of
Uttaranchal and others) in paragraphs-29,30 and 37, it is held as follows:
“29. In Chandrapal Singh v. Maharaj Singh in a landlord and tenant matter
where criminal proceedings had been initiated, this Court observed in para 1 at
page 467 as under:

“A frustrated landlord after having met his waterloo in the hierarchy of
civil courts, has further enmeshed the tenant in a frivolous criminal
prosecution which prima facie appears to be an abuse of the process of law. The
facts when stated are so telling that the further discussion may appear to be
superfluous.”

30. The court noticed that the tendency of perjury is very much on the
increase. Unless the courts come down heavily upon such persons, the whole
judicial process would come to ridicule. The court also observed that chagrined
and frustrated litigants should not be permitted to give vent to their
frustration by cheaply invoking jurisdiction of the criminal court.

37. In Indian Oil Corporation v. NEPC India Ltd., this Court again
cautioned about a growing tendency in business circles to convert purely civil
disputes into criminal cases. The Court noticed the prevalent impression that
civil law remedies are time consuming and do not adequately protect the
interests of lenders/creditors. The Court further observed that:(SCC page 749,
para 13)
“13. … Any effort to settle civil disputes and claims, which do not involve
any criminal offence, by applying pressure through criminal prosecution should
be deprecated and discouraged. ” ”

The above citations along with the facts of the present case would prove because
of the civil dispute, the defacto complainant with a malafide intention initiate
the criminal proceedings against the petitioners.

25. Whether F.I.R. is liable to be quashed, since the same complaint is
closed as withdrawn.

At this juncture, it is appropriate on the part of this Court to consider
the argument advanced by the learned counsel for the petitioner that the
complaint was given by the defacto complainant on 25.09.2010, which was closed
on 15.10.2010. For the same set of facts, no second complaint will be
entertained, so it is liable to be quashed. To substantiate his argument, he
relied upon the decision reported in 2007 (2) MLJ (Cri) page 1647 (A.Yousuf Khan
and others v. Inspector of Police)
in paragraphs-8 and 14, it is stated as
follows:

“8.It is also pertinent to note that in the very same order, this Court
further observed and quashed the proceedings as follows:

“As the complainant suppressed earlier proceedings and memo filed between the
parties, this Court without any hesitation is of the opinion that the
proceedings pending in C.C.No.325 of 2004 has got to be quashed. Accordingly,
the same is quashed.”

14.This Court has no hesitation to hold that the present complaint in this case
squarely comes within the above said guideline stipulated by the Hon’ble Apex
Court for quashing the F.I.R. In view of the sequence of events, viz.,
suppression of present first complaint, preferring second complaint, findings of
this Court regarding suppression of material facts by the defacto complainant in
the order dated 11.10.2004 in Crl.O.P.No.23083 of 2004 and the findings of the
learned Judicial M Class Magistrate No.II, Kochi, this present complaint is
liable to be quashed. ”

Considering the above citation along with the facts of the present case,
admittedly, on the basis of the complaint given on 25.09.2010, the case was
taken on file in C.S.R.No.501 of 2010 and the same was closed as withdrawn.
Again, the case has been registered on 27.04.2011 on the basis of the complaint
dated 25.09.2010. Till 27.04.2011, R2 had not taken any steps and preferred any
complaint stating that the signatures obtained forcibly from the complainants
for closing C.S.R.No.501 of 2010. Only in the counter affidavit, R2 raised such
a plea. In such circumstances, as per the decision reported in 2007(2) MLJ (Cri)
page 1647(cited supra), I am of the considered view, it is only deemed to be
second complaint, on the basis of the complaint dated 25.09.2010. Since the
first complaint dated 25.09.2010 was closed as withdrawn, I am of the view
that the F.I.R. is liable to be quashed, since the case has been registered on
the basis of the complaint dated 25.09.2010.

26.It is appropriate to consider the arguments advanced by the learned
counsel appearing for the petitioners/accused that on 07.02.2011, property
worth about Rs.40,00,000/- has been purchased in the name of the defacto
complainant’s father, where they are put up. In the counter affidavit, the
defacto complainant himself has stated that now they are residing at Lobo
Cottage, which was purchased on 07.02.2011 in the name of Zavior Michael and the
amount has been paid by the agent of the first accused. It is also pertinent to
note that on 27.01.2011, there was a compromise agreement entered into between
one of the accused viz., Reuban and the defacto complainant’s father. Clause-1
of the said compromise agreement was stated as follows:
@1) 1tJ ghh;l;o 2tJ ghh;l;of;F bfhilf;fhdy; lt[d;. ky;yp nuhL fhd;btz;l;
nuhL nrUk; gFjpapy; 25 brz;l; epyKk;. nkw;go epyj;jpy; cs;s nyhngh fhl;nl$; vd;w
bgahpy; cs;s tPLk; nrh;j;J 1tJ ghh;l;o jdJ brhe;j brytpy; 2tJ ghh;l;of;F 04-02-
2011?k; njjpf;Fs; fpiuak; Koj;J bfhLf;f ntz;oaJ/ nkYk; 2tJ ghh;l;of;F 1tJ
ghh;l;o U:/2.50.000-? U:gha; ,uz;L yl;rj;J Ik;gjhapuk; bfhLf;ft[k; xg;g[f;
bfhz;L. mjd;go moapw;fz;l rhl;rpfs; Kd;dpiyapy; 1tJ ghh;l;oaplkpUe;J 2tJ
ghh;l;oa[k;. mtUila FLk;gj;jhh;fSk; nrh;e;J nkw;go bjhifapy; ehsJ njjpapy;
U:gha;- U:gha; Ik;gjhapuj;ij 1tJ ghh;l;oaplkpUe;J 2tJ ghh;l;o buhf;fk; bgw;Wf;
bfhz;oUf;fpwhh;fs;/ v”;rpa U:gha;- U:gha; ,uz;L yl;rj;ij nkw;go fpiuak;
gjpa[k; njjpapy; 1tJ ghh;l;oaplkpUe;J 2tJ ghh;l;o bgw;Wf; bfhs;s ntz;oaJ/@

In the above clause, it was stated that the ‘Lobo cottage’ is going to be
registered in the name of the defacto complainant’s father. In pursuance of
that, ‘Lobo Cottage’ has been purchased and registered on 07.02.2011, in which,
the defacto complainant had appeared before the sub-Registrar’s office,
Kodaikanal and he signed and affixed his Left Thumb impression before the Sub-
Registrar at Kodaikanal. After the complaint dated 25.09.2010, Lobo Cottage has
been purchased in the name of the defacto complainant’s father and he is in
possession. It was also admitted by the defacto complainant/R2. But the case was
registered on 27.04.2011 on the basis of the complaint given on 25.09.2010.

27.Even though the defacto complainant has stated that on 07.02.2011, one
Reuban demolished the structures and they had transferred from Welwyn Cottage
(disputed property) to Lobo Cottage in his counter, but admittedly no complaint
was lodged either on 07.02.2011 or after or before registering this case on
27.04.2011 for the alleged occurrence said to have been taken place on
07.02.2011. As already stated that the case in Crime No.203 of 2011 has been
registered on 27.04.2011 only on the complaint given by the defacto complainant
on 25.09.2010. Considering this aspect, I am of the view that without any
basis, the case has been registered in Crime No.203 of 2011, even after
complaint dated 25.09.2010 was closed as withdrawn.

28.At this juncture, it is appropriate to consider the following decisions
relied upon by the learned counsel for the second respondent.

(i) (2001) 6 SCC 181 (T.T.Antony v. State of Kerala and others), in which,
it is held as follows:

“There can be no second F.I.R. and no fresh investigation on receipt of
every subsequent information in respect of the same cognizable offence or same
occurrence giving rise to one or more cognizable offences. All such subsequent
information will be covered by Section 162 Cr.P.C. Officer in charge of the
police station has to investigate not merely the cognizable offence reported in
the F.I.R. but also other connected offences found to have been committed in the
course of the same transaction or the same occurrence and file one or more
reports as provided in Section 173 Cr.P.C.”

(ii) AIR 1993 SC 1637 (Ajay Agarwal v. Union of India and others), in
para-25, it is held as follows:

“25. A conspiracy thus is a continuing offence and continues to subsist
and committed wherever one of the conspirators does an act or series of acts. So
long as its performance continues, it is a continuing offence till it is
executed or rescinded or frustrated by choice or necessity A crime is complete
as soon as the agreement is made, but it is not a thing of the moment. It does
not end with the making of the agreement. It will continue so long as there are
two or more parties to it intending to carry into effect the design. Its
continuance is a threat to the society against which it was aimed at and would
be dealt with as soon as that jurisdiction can properly claim the power to do
so. The conspiracy designed or agreed abroad will have the same effect as in
India, when part of the acts, pursuant to the agreement are agreed to be
finalised or done, attempted or even frustrated and vice versa.”

He submitted that even though the complaint has been given on 25.09.2010, the
case has been registered on 27.04.2011 and the occurrence has been taken place
on 07.02.2011. Hence, it is only a continuing offence and prayed for dismissal
of the quash petitions. On the basis of the complaint, the case has been
registered only under the provisions under Sections 147, 148, 294(b), 387, 448
and 420 I.P.C. not under Section 120B I.P.C. Considering the ingredients of the
offence, it is not a continuing offence and hence, the above citations are not
applicable to the facts of the present case.

29.In the counter affidavit filed by the second respondent, he would
clearly averred that only on 07.02.2011, they were physically evicted from the
disputed property and the entire structures situated in the disputed property
were demolished. At this juncture alone, the learned counsel Mr.Ajmal Khan would
submit that second F.I.R. is not necessary, since it is a continuing offence.
But the citations reported in (2001) 6 SCC 181 (cited supra) and AIR 1993 SC
1637 (cited supra) are not applicable to the facts of the present case, because
in the Antony’s case, it was specifically mentioned that no second F.I.R. in
respect of the same transaction or same occurrence. But here, in the complaint,
it was stated that the accused are attempted to trespass into the property. But
as per the averment in the counter affidavit filed by the second respondent, it
was specifically mentioned that they have been physically shifted from the
disputed property to the Lobo Cottage only on 07.02.2011. So the argument
advanced by the learned counsel for the second respondent does not merit
acceptance. I am of the considered view that the occurrence alleged to have been
taken place on 07.02.2011 is not a continuing offence. The complaint has been
given on 25.09.2010. The alleged occurrence said to have been taken place after
entering into compromise. In the complaint, it was specifically mentioned that
the signatures were obtained. But admittedly, it was not produced before the
Court in C.R.P.(NPD)(MD)No.853 of 2010. Filing of C.R.P.(NPD)(MD)No.853 of 2010
and pendency and disposal of the same have not been disclosed in the complaint
dated 25.09.2010. As per the counter affidavit filed by the defacto
complainant/R2, on 07.02.2011 alone they were shifted from the disputed
property to Lobo cottage and the superstructure in the disputed property has
been demolished. So the incident alleged to have been taken place on 07.02.2011
is not a continuing offence. So the decisions reported in (2001) 6 SCC 181
(cited supra) and AIR 1993 SC 1637 (cited supra) are not applicable.

30.The learned counsel for the petitioners/accused submitted that the
ingredients of the penal provisions have not been made out, for the reason he
would rely upon the decision reported in AIR 2001 SC 3721 (Charanjit Singh
Chadha and others v. Sudhir Mehra)
in paragraph-17, it is held as follows:
“17.The hire-purchase agreement in law is an executory contract of sale
and confers no right in rem on hirer until the conditions for transfer of the
property to him have been fulfilled. Therefore, the re-possession of goods as
per the term of the agreement may not amount to any criminal offence. .. ..”

31. As per the dictum laid down in Janata Dal v. H.S. Chowdhary and
Raghubir Saran (Dr)
v. State of Bihar, there is no hard-and-fast rule can be
laid down in regard to cases in which the High Court will exercise its
extraordinary jurisdiction of quashing the proceedings at any stage. Now it is
appropriate to consider the following decisions relied upon by the learned
counsel for the second respondent.

(i) (2002) 3 SCC 89 (State of Karnataka v. M.Devendrappa and another), in
paragraph-9, it is held as follows:

“9.As noted above, the powers possessed by the High Court under Section
482 of the Code are very wide and the very plenitude of the power requires great
caution in its exercise. Court must be careful to see that its decision in
exercise of this power is based on sound principles. The inherent power should
not be exercised to stifle a legitimate prosecution. The High Court being the
highest Court of a State should normally refrain from giving a prima facie
decision in a case where the entire facts are incomplete and hazy, more so when
the evidence has not been collected and produced before the Court and the issues
involved, whether factual or legal, are of magnitude and cannot be seen in their
true perspective without sufficient material. Of course, no hard-and-fast rule
can be laid down in regard to cases in which the High Court will exercise its
extraordinary jurisdiction of quashing the proceeding at any stage. [See: Janata
Dal v. H.S. Chowdhary and Raghubir Saran (Dr)
v. State of Bihar). It would not
be proper for the High Court to analyse the case of the complainant in the light
of all probabilities in order to determine whether a conviction would be
sustainable and on such premises arrive at a conclusion that the proceedings
are to be quashed. It would be erroneous to assess the material before it and
conclude that the complaint cannot be proceeded with. In proceeding instituted
on complaint, exercise of the inherent powers to quash the proceedings is called
for only in a case where the complaint does not disclose any offence or is
frivolous, vexatious or oppressive. .. .. ”

Considering the above citation, there is no hard-and-fast rule for
quashing the F.I.R.

(ii) (2004) 1 SCC 691 (State of M.P. v. Awadh Kishore Gupta and others) in
paragraphs-11 and 13, it is held as follows:

“11. .. .. If the allegations set out in the complaint do not constitute
the offence of which cognizance has been taken by the Magistrate, it is open to
the High Court to quash the same in exercise of the inherent powers under
Section 482 of the Code. It is not, however, necessary that there should be
meticulous analysis of the case before the trial to find out whether the case
would end in conviction or acquittal. The complaint has to be read as a whole.
If it appears that on consideration of the allegations in the light of the
statement made on oath of the complainant that the ingredients of the offence or
offences are disclosed and there is no material to show that the complaint is
mala fide, frivolous or vexatious, in that event there would be no justification
for interference by the High Court. When an information is lodged at the police
station and an offence is registered, then the mala fides of the informant would
be of secondary importance. It is the material collected during the
investigation and evidence led in the Court which decide the fate of the accused
person. The allegations of mala fides against the informant are of no
consequence and cannot by itself be the basis for quashing the proceedings.

13.It is to be noted that the investigation was not complete and at that
stage it was impermissible for the High Court to look into materials, the
acceptability of which is essentially a matter for trial. While exercising
jurisdiction under Section 482 of the Code, it is not permissible for the Court
to act as if it was a trial Judge. Even when charge is framed at that stage, the
Court has to only prima facie be satisfied about existence of sufficient ground
for proceeding against the accused. For that limited purpose, the Court can
evaluate material and documents on records but it cannot appreciate evidence.
The Court is not required to appreciate evidence to conclude whether the
materials produced are sufficient or not for convicting the accused. In Chand
Dhawan v. Jawahar Lal,
it was observed that when the materials relied upon by a
party are required to be proved, no inference can be drawn on the basis of those
materials to conclude the complaint to be unacceptable. The Court should not act
on annexures to the petitions under Section 482 of the Code, which cannot be
termed as evidence without being tested and proved. When the factual position of
the case at hand is considered in the light of principles of law highlighted,
the inevitable conclusion is that the High Court was not justified in quashing
the investigation and proceedings in the connected case (Crime No. 116 of 1994)
registered by the Special Police Establishment, Lokayukta, Gwalior. We set aside
the impugned judgment. The State shall be at liberty to proceed in the matter
further.”

(iii) (2007) 12 SCC 93 (T.Vengama Naidu v. T.Dora Swamy Naidu and others)
in paragraph-8, it is held as follows:

“8.A glance at FIR suggests that there were serious allegations against
both the accused, respondents 1 and 2 herein inasmuch as it was specifically
alleged that inspite of the revocation of the general power of attorney and
inspite of a specific notice to that effect by the complainant to the first
respondent, the first respondent went on dishonestly to execute the sale deed in
favour of his own daughter on the basis of the said revoked general power of
attorney. It is alleged against the first respondent that he had no right over
the property and yet he had executed a document in favour of the second
respondent without any authority with an intention to cause loss to the
complainant and to cheat him. It was alleged against the second respondent that
she was well aware that the first respondent was not competent to sell the
property so as to defraud and cheat the complainant and, therefore, she also was
liable to be punished under Sections 464, 423, 420 read with Section 34 IPC. It
was not for the learned Judge at the stage of investigation to examine the
nature of the transaction and further to examine as to whether any offence was
actually committed by the accused persons or not. At that stage the only inquiry
which could have been made was as to whether the complaint or FIR did contain
allegations of any offence. Whether those offences were made out, even prima
facie, could not have been examined at that stage as the investigation was
pending then. We, therefore, do not agree with the learned Single Judge that FIR
was liable to be quashed. We also do not agree with the learned Judge that there
are no ingredients of the offences complained of in the FIR and this was a civil
dispute. .. ..”

(iv) (2009) 15 SCC 429 (Ramesh Dutt and others v. State of Punjab and
others
), in which, it is held as follows:

“The appellants had committed acts of criminal misconduct while trying to
obtain orders of mutation but it is another thing to say that only because they
filed such an application, the same by itself would tantamount to commission of
a criminal offence. Hence, institution of a criminal case must be held to be an
act of mala fide on the part of the respondents.”

(v) (2011) 4 SCC 593 (Kaushalya Devi Massand v. Roopkishore Khore) in
paragraph-11, it is held as follows:

“11.Having considered the submissions made on behalf of the parties, we
are of the view that the gravity of a complaint under the Negotiable Instruments
Act cannot be equated with an offence under the provisions of the Penal Code,
1860 or other criminal offences. An offence under Section 138 of the Negotiable
Instruments Act, 1881, is almost in the nature of a civil wrong which has been
given criminal overtones.”

As per the above citations, it is clearly held that ingredients of the offences
shall prima facie made out in the complaint/F.I.R.

32.It is well settled dictum that F.I.R. is not an encyclopaedia as per
the decision reported in CDJ 2007 MHC 4147 (G.Jeyaseelan v.T.Chandran). But
however, there must be some prima facie case to take cognizance of an offence
and there must be some elements of ingredients of the offence to be mentioned in
the F.I.R. On perusal of the F.I.R. along with penal provisions under Sections
147, 148, 448, 294(b), 387 and 420 I.P.C., no ingredients for the above offences
have been prima facie made out. It is true, it would not be proper for the
High Court to analyse the case of the accused, in order to determine whether the
conviction would be sustainable. But here, this Court is not analysing the
evidence. But this Court has made cursory glance over this F.I.R. and the
Ingredients of the penal provisions were not prima facie made out.

33.Now it is appropriate to incorporate the entire complaint, which is as
follows:

“Subject:Request for police protection since our entire family is facing
threatening of life by anti-social elements with deadly weapons and lot of
muscle power-Immediate action requested-Reg.

We have been in peaceful possession and enjoyment of bearing property
Block No.14, T.S.No.50, New Survey No.22, Door No.41/67, Old No.17/99,
Kodaikanal Taluk, in an extent of 3 acres and 98 cents for the past 40 years.
Patta stood in the name of one Thiru.Tapp & Zavior Michael, Pastor & head of our
family. Zavior Michael has been doing a dedicated service to the religious
people at large and has been doing welfare activities, charitable work etc. to
the local people. All these activities are being done only from the above
mentioned address. EB connection, telephone connection, revenue receipts all
stood only in the name of one Thiru.Tapp and Zavior Michael.

While that being so, some anti-social elements with the intention to grab
the said property from us started threatening us to vacate the property and hand
it over to them. In this regard, we have been receiving weapons.

Further the women members of the family more particularly were, tortured,
harassed, and shouted at by filthy language. In this regard we have preferred a
police complaint on 23.04.2010 before the Kodaikanal police station the copy of
the receipt issued by the police station is enclosed herewith.

One Thiru.Bhagchand Uttamachand Galada a business man from Chennai and his
aides are the main culprits, who have been indulging in all the above said
illegal and atrocious activities. It is relevant to state here that the said
Galada had filed a rent control suit in District Munsif Court, Kodaikanal vide
R.C.O.P.No.3/2001. The said suits were decreed in his favour vide order dated
10.12.2003. Thereafter, Zavior Michael our family head preferred an appeal
before the Sub-Court, Palani (Kodaikanal Camp Court) vide appeal No.1/2004. In
the said appeal lower Court order was set aside and appeal was allowed in favour
of Zavior Michael, our family head. Therefore, there is no right in any manner
to Thiru.Galada or any of his aides over the above mentioned property.

In the aforesaid circumstances, we have been repeatedly receiving
threatening calls, as stated earlier. Further, Zavier Michael, our family head
was threatened and forced to sign on various papers including blank papers
recently. Thereafter, more such threatening calls are being received and also
frequent visits of rowdy elements with deadly weapons are being made and our
life put to peril and danger.

It is pertinent to state here that the said Thiru. Galada a business
heavy weight Chennai is being supported by Thiru.P.Sivanandi, I.G. of Police,
Coimbatore Range and E.N. Palanisamy, Mill Owner, Dindigul. Only with their
assistance and background the said Galada has been ending rowdy elements,
threatening our lives, to grab the property. It is very unfortunate that a
Police Officer in the rank of Inspector General supporting land grabbers and
anti social elements. Moreover, signatures were forcefully obtained from
Zavier Michael, our family head to the effect that he would vacate the premises
and hand over the possession to them. So, it is utmost necessary that the
honourable Director General intervenes in the above matter and take necessary
actions. We are helpless, ordinary people with our family head doing religious
activities & belonging to minority community and now are at your mercy. Kindly
protect our lives from business heavy weights, anti-social elements.”

34. The case was registered under Sections 147, 148, 294(b), 387, 448 and
420 I.P.C. As per Section 420 I.P.C. is concerned, on perusal of F.I.R.,
elements of cheating has not been made out. Neither the defacto complainant nor
his family members have been cheated the valuable of the property belonging to
them. Because it is not the case of the defacto complainant that his property
has been cheated by the accused. Now it is appropriate to consider the essential
ingredients of following Sections, which are extracted hereunder:

Section 294(b):

(1)Accused did some act.

(2)Accused sang, recited or uttered a song or ballad.

(3)It was obscene.

(4)It was done in a public place.

(5)It caused annoyance to others.

Section 387
(1)Accused put some person or attempted to put some person in fear of death or
grievous hurt.

(2) He did so to commit extortion.

Section 420
(1)Accused cheated the complainant.

(2)Accused did so dishonestly.

(3)Thereby induced the complainant:

(i) to deliver some property to accused or to some other person.

(ii) to make, alter or destroy the whole or any part of the valuable security
or anything which was signed, sealed, and which was capable of being converted
into valuable security.

Section 448
(1)Complainant was in possession of the property.

(2)Accused entered into such building, tent or vessel.
(3)Accused having lawfully entered into such building remained there unlawfully.
(4)With intent to commit offence of insult, annoyance, intimidation.
On considering the ingredients of penal provisions along with the complaint, I
am of the view that the ingredients of the provisions under Sections 147, 148,
294(b), 387, 448 and 420 I.P.C. have not been prima facie made out.

35.As per the dictum of (2010) 10 SCC 673 (cited supra), it is held that
Section 482 Cr.P.C. is a guarantee against injustice. The High Court is invested
with the tremendous powers thereunder to pass any order in the interests of
justice. Therefore, this would have been a proper case for the High Court to
look into the allegations with the openness and then to decide whether to pass
any order in the interests of justice. In our opinion, this was a case where
the High Court ought to have used its powers under Section 482 Cr.P.C.

36.To sum up, the conclusions are as follows:

(i) There was a civil dispute (i.e.) in Rent Control proceedings in
respect of the disputed property in between the first accused and the defacto
complainant’s father, C.R.P.(NPD)(MD)No.853 of 2010 has been disposed of by
recording joint compromise memo on 24.08.2010. The compromise decree is valid
till it was set aside by the concerned Court. The Judges’ record is conclusive.

(ii)The present complaint was preferred on 25.09.2010, in which, the
defacto complainant had sought for protection. On perusal of the complaint,
ingredients of penal provisions have not been prima facie made out.

(iii) After the disposal of the case in C.R.P.(NPD)(MD)No.853 of 2010, son
of the tenant, who is the defacto complainant herein has taken vengeance and
gave a complaint, which is abuse of process of law.

(iv) Already on the basis of the complaint dated 25.09.2010, the case has
been closed as withdrawn and for the same, the defacto complainant/R2 had not
taken any steps.

(v) On 07.02.2011, though they were alleged to transfer from the disputed
property to Lobo cottage, no complaint has been given till the case has been
registered on 27.04.2011 on the basis of the complaint given on 25.09.2010,
which was already closed. Hence, F.I.R. was registered on the basis of the
complaint dated 25.09.2010, which is not sustainable.

(vi) On 27.01.2011, a Memorandum of Understanding was entered into between
the father of the defacto complainant and one of the accused viz., Reuban, Lobo
cottage has been purchased in the name of the father of the defacto complainant
and he was put in possession.

(vii) The conduct of the defacto complainant and his family members has
shown that the clause-7 of the para-102 of the dictum laid down in (State of
Haryana and others v. Bhajan Lal and others
) (i.e.) where a criminal proceeding
is manifestly attended with mala fide and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance on the accused abuse
of process of Court.

37.For the foregoing reason, I am of the view that it is a fit case for
quashing the F.I.R.

38.In fine,
The Criminal Original Petitions in Crl.O.P.(MD) Nos. 8741 and
9385 of 2011 are allowed.

F.I.R. in Crime No.203 of 2011 on the file of the first
respondent police, Kodaikanal Police Station, Dindigul District, is
hereby quashed.

Consequently, connected Miscellaneous Petitions are closed.
Since the F.I.R. in respect of the Crime No.203 of 2011 is
quashed, Anticipatory Bail petitions in Crl.O.P.(MD) Nos.8765
to 8767, 8773, 9058, 9282 of 2011 are dismissed as
infructuous.

kj

To

1.The Inspector of Police
Kodaikanal Police Station
Dindigul District.

2.The Public Prosecutor
Madurai Bench of Madras High Court.

3.The Record Keeper
V.R.Section, High Court.