IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07.6.2011 C O R A M : THE HONOURABLE MR. JUSTICE K. CHANDRU W.P.No.2585 of 2007 M.P.Nos.1 and 2 of 2007 & Contempt Petition No.725 of 2008 Kunjan @ Krishnan .. Petitioner in WP and Contempt petition -vs- 1.The Superintendent Engineer, Public Works Department, Upper Cauvery Basin Circle, Hastham Patty, Salem -7. 2.The Assistant Superintendent Engineer, Public Works Department, Old Sooramangalam, Salem. 3.The Chief Engineer, State Highways Department, Chennai. 4.Salem Corporation, Rep. By its Commissioner, Salem. 5.Mr.R.Pandiyan, Ex-Councilor, 232-A, Ramasamy Nagar, Kilakku Thiruvagoundar, Bye pass Road, Salem. 6.Mr.Moorthy, Contractor, 232-A, Ramasamy Nagar, Kilakku Thiruvagoundar Bye-pass Road, Salem. .. Respondents in W.P and in contempt petition PRAYER in W.P.No. 2585 of 2007: Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of mandamus forbearing the respondents from putting up a Public Toiler just in front of the house of the petitioner at 146-1, Thiruvagoundanour (East), Sooramangalam, Salem District. PRAYER in Cont.P.No. 725 of 2008: Petition filed under Section 10 and 12 of the Contempt of Courts Act, 1971 to punish the respondents for wilfully and wantonly disobeying the order of this Court dated 24.01.2007 and Order dated 23.03.2007 in M.P.No.1 of 2007 in W.P.No.2585 of 2007. For petitioner : Mr. K.Selvaraj For respondents : Ms.C.Devi, Government Advocate for R1 to R3 ***** O R D E R
The petitioner has filed the present writ petition seeking for a mandamus forbearing the respondents from putting up a public toilet just in front of the house of the petitioner at 146-1, Thiruvagoundanour (East) Sooramangalam, Salem District.
2. Notice of motion was ordered in the writ petition on 24.1.2007. Pending the writ petition, this Court granted interim injunction till 07.2.2007, which stood extended from time to time. Aggrieved by the order of injunction, a vacate stay application was filed in M.P.No.2 of 2007 by the Superintending Engineer, Salem, together with a counter affidavit, dated 21.5.2007.
3. The petitioner, however, filed a contempt petition in Contempt Petition No.725 of 2008 seeking to punish the respondents for having disobeyed the order of this Court in M.P.No.1 of 2007 dated 23.3.2007.
4. When the contempt petition came up on 02.9.2008, notice was taken by the respondents. On behalf of first and second respondents, a counter affidavit dated 02.9.2008 was filed. The fifth respondent had filed a counter affidavit, dated 31.8.2008 and the sixth respondent had filed a counter affidavit, dated 16.9.2008. It must be noted that in the writ petition, an interim order was initially granted for a period upto 07.2.2007 and by order dated 23.3.2007, it stood extended until further orders. However, the respondents have filed M.P.No.2 of 2007 seeking to vacate the stay order and the same was not listed. Therefore, this Court felt that unless the respondents were also heard in the main writ petition, the question of proceeding with the contempt will not arise and, hence, with the consent of the parties, the main writ petition itself was directed to be posted.
5. Heard Mr.K.Selvaraj, learned counsel for the petitioner and Ms.C.Devi, learned Government Advocate for official respondents 1 to 3 and Mr.R.Martin Jayakumar appearing for the sixth respondent.
6. The facts of the case are as follows:-
The petitioner resides with his family at 146-1, Thiruvagoundanour (East) in Salem District His original property was a vacant site without any structure. Subsequently, the petitioner has put up a structure in the property. It was stated that there was an old toilet found in the said location at the junction of Kannagi Street in the road leading to Sivathapuram and the road also leading to Salem Junction Main Road. It was constructed by the Panchayat Board Sooramangalam in the year 1947 for the use of the public of the area. The said toilet was used by the public for over 50 years and there was no objection from anyone regarding the existence of the toilet. The survey records of the concerned village made by the District Collector vide proceedings dated 01.6.1947 showed that the land was allotted for construction of public toilet in the Sooramangalam Panchayat Board in the year 1991. It became a municipality and the municipality renovated the toilet building and subsequently it became the corporation and the toilet was maintained by the Salem Municipal Corporation. The old building became dilapidated.
7. Therefore, at the request of the general public, the Member of the Legislative Assembly Veerapandi Constituency allotted a sum of Rs.4 lakhs from the constituency development fund of the MLAs for construction of a new toilet in the same place after demolishing the old toilet building. The District Collector gave an administrative sanction for the new toilet and also allotted funds from the building construction maintenance division of the public works department on 08.2.2002. The Commissioner of Salem Corporation handed over the site to the PWD on 28.2.2006 after demolition of the old toilet. Subsequently, tenders were called for and after adopting the formalities and due procedure, the PWD on 22.2.2006 allotted the contract to the lowest tenderer by name Sri Amman Construction vide agreement entered into with the contractor. The work for the construction of new toilet commenced on 09.2.2006. It is at this stage one K.Doraisamy, who is said to be a resident of 145/A/13(1) Kannagi Street filed a writ petition before this Court in W.P.No.10285 of 2006 as a public interest litigation objecting to the construction of the toilet in front of his house. A Division Bench of this Court by order, dated 15.6.2006 directed the Highways authorities to consider the objection and to decide whether the public toilet should be constructed in the site in question or in any other alternative site within two months. On 19.2.2006, the public interest petitioner gave his consent to proceed with the construction. The consent was attested by a notary public with two witnesses. Accordingly, the Divisional Engineer, Highways granted permission to proceed with the construction vide proceedings, dated 06.12.2010. It is at this stage, the petitioner has filed the present writ petition and obtained an interim order.
8. By the time the toilet has come up to roof level, the contractor was also paid Rs.1,25,000/- on 12.2.2007. The contractor thereafter requested for cancellation of the contract and returned the Earnest Money Deposit. The agreement with the original contractor was cancelled by the Executive Engineer on 31.10.2007. Nevertheless, the petitioner moved this Court by way of contempt.
9. The contention raised by the petitioner objecting to the construction of the toilet was based upon the allegation that he was staying in the road and if it is constructed, it will be in the public road belonging to the State Highways and will be violative of Articles 14, 21 and 30 of the Constitution. The petitioner and his family cannot have free ingress and egress. However, these allegations have been squarely denied in the counter affidavit filed by the respondents, dated 27.7.2007. Necessary formalities for constructing the toilets have been gone through and the petitioner cannot have any objection when the funds were sanctioned from the MLA Fund and Administrative sanction was given by the District Collector and the Highways Engineers have no objection. The petitioner cannot forestall the public toilet coming up in the area in the place of the old toilet which has been in existence for over 60 years put up by the then Panchayat Board. The petitioners interest projected herein is a private interest.
10. In this context, it is necessary to refer to the judgment of this Court in R.Tamilarasi vs- District Collector reported in (2010) 8 MLJ 3662. In that case, this Court after referring to the long history of public sanitation in this country and the need for providing public toilets by the local bodies rejected the case of the private owner which was made on personal and selfish grounds. The present case is akin to the case referred to above.
11. In the light of the above, no case is made out. Hence, the writ petition stands dismissed. Consequently the connected miscellaneous petition is also dismissed. No costs. There is no case made out to pursue contempt against the respondents. The Court is willing to accept the explanation offered by the contemners in the contempt petition. In view of the fact there is no case made out in the writ petition and there being no infringement of any order passed by this Court, the contempt petition also stands dismissed.
js
To
1.The Superintendent Engineer,
Public Works Department,
Upper Cauvery Basin Circle,
Hastham Patty, Salem -7.
2.The Assistant Superintendent Engineer,
Public Works Department,
Old Sooramangalam, Salem.
3.The Chief Engineer,
State Highways Department, Chennai.
4.Salem Corporation,
Rep. By its Commissioner,
Salem