Contempt Petition

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 23/12/2010

CORAM

THE HONOURABLE Mrs.JUSTICE R.BANUMATHI

AND

THE HONOURABLE Mr.JUSTICE R.SUBBIAH

Contempt Petition(MD)No.596 of 2010

Contempt Petition(MD)No.597 of 2010

Contempt Petition(MD)No.598 of 2010

Contempt Petition No.596 of 2010:

M.Marimuthu ... Petitioner

vs.

Sankaranayarayanan

Tahsildar,

Rajapalayam ... Respondent

Contempt Petition No.597 of 2010:

M.Marimuthu ... Petitioner

vs.

S.Santhi

Commissioner of Panchayat Union,

Rajapalayam. ... Respondent

Contempt Petition No.598 of 2010:

M.Marimuthu ... Petitioner

vs.

R.Ganeshwari

President of Dhalavaypuram Panchayat,

Dhalavaypuram. ... Respondent

Prayer

These Contempt Petitions are filed under Sec.11 of the Contempt of

Courts Act, 1971 for the disobedience of the direction issued in W.P.(MD)

No.14222 of 2009 dated 24.02.2010.

!For Petitioner ... Mr.T.Mohan for

   Mr.M.Ganesan in all the Petitions.

^For Respondents ... Mr.K.Balasubramanian

   Addl. Government Pleader for

   Respondent in C.P.No.596 & 597/2010

   Mr.A.V.Arun for

   Mr.Meenakshi Rama Prabhu for

   Respondent in C.P.No.598/2010

:COMMON ORDER

R.BANUMATHI,J

The issue in these Contempt Petitions relates to shifting of burial ground

from S.F.No.4/3 to S.F.No.4/8 of Chettiarpatti Kanmai.  Alleging disobedience of

the order passed in W.P.(MD) No.14222 of 2009 [24.02.2010] and that the

Respondents have committed contempt of court, Petitioner has filed these

Contempt Petitions.  Since all the Contempt Petitions are arising out of the

order made in W.P.(MD)No.14222/2009, all the Contempt Petitions were taken up

together and disposed of by this Common Order.

2. In W.P.(MD) No.14222 of 2009, recording the statement of the counsels

on record that the burial cum cremation ground has been shifted to S.F.No.4/8,

Chettiarpatti Kanmai, the said Writ Petition was disposed of with the following

order:-

"3. Since we cannot go into the veracity of shifting of burial or cremation

place at this stage, recording the statement made by the learned counsel

appearing for the first and second respondents as well as the learned Special

Government Pleader appearing for the third and fourth respondents, we close this

Writ Petition.  If the petitioner finds that some body is buried/cremated at

another place and not at 4/8 Chettiarpatty Kanmai, it is open to thim to move

this Court by filing a Miscellaneous Petition in this Writ Petition itself and

the Registry shall number it, if any such petition is filed."

3. Praying to strictly implement the order of the Court in W.P.(MD)

No.14222/2009, Petitioner filed M.P.(MD)No.1 of 2010.  By the order dated

16.08.2010, the Bench has closed the Petition observing that "in the event of

the earlier order dated 24.02.2010 is disobeyed, it is for the Petitioner to

approach the Court with appropriate application alleging non-compliance of that

order or violation of the same".

4. Alleging non-compliance of the order made in W.P.(MD)No.14222/2009

dated 24.02.2010, now the Petitioner has filed C.P.No.596/2010 against the

Tahsildar, Rajapalayam; C.P.No.597/2010 against the Commissioner of Panchayat

Union, Rajapalayam and C.P.No.598/2010 against the President of Dhalavaypuram

Panchayat.  Case of Petitioner is that Respondents have duty and responsibility

to obey the orders of the Court as well as the direction of the superior

authority.  Petitioner has averred that inspite of the statement made in the

Court that the burial ground has been shifted to S.F.No.4/8, acts of burying and

cremating the dead bodies are allowed to continue in S.F.No.4/3.  Between

1.1.2010 to 27.5.2010 about  18 persons died and all the dead bodies were

buried/cremated in S.F.No.4/3 which amounts to wilful disobedience of the order

of the Court and Respondents are liable to be punished for  Contempt of Court

for their contumacious disregard of the order of the Court.

5. Mr.T.Mohan, learned counsel for Petitioner contended that as per

Sec.2(b) of Contempt of Courts Act, 1971 any wilful disobedience to any

direction or order or to process of the Court would tantamount to Contempt of

Court.  Drawing our attention to the various orders and communications, learned

counsel for Petitioner would further contend that the alleged contemners who are

not only prevaricating in their stand at different stages in different

proceedings but also intending to prolong the litigation one way or other.

Learned counsel for Petitioner would further contend that the contemners have

made a statement before the Court that the burial ground has been shifted to

S.F.No.4/8 and thereby deliberately flouted the order which would certainly

amount to deliberate attempt to disobey the orders of the Court.

6. Stand of Respondents is that they have taken steps to shift the burial

ground from S.F.No.4/3 to S.F.No.4/8, but there is no co-operation from the

villagers and villagers continue to bury the dead bodies only in S.F.No.4/3.

Taking us through the various litigations including filing of the Civil Suits,

learned counsel for Respondents/contemners contended that if they insist the

villagers to have the burial ground at S.F.No.4/8, there would be law and order

problem in the village.  It was further contended that in view of the pendency

of civil suit, Respondents/contemners are handicapped in taking any independent

decision to comply the direction of the Court made in W.P.(MD)No.14222/2009.

7. It is well settled principle of law that purpose of contempt is not to

enforce the order, but to maintain the dignity of the Institution.  The alleged

acts of contempt is to be examined in the light of the chequered history which

the matter had.    Relating to issue of burial ground, the parties are entangled

in several rounds of litigation for nearly a decade.

8. Thoppiamkulam Sree Subramania Swamy Temple is situated in S.F.No.4/1.

S.F.No.4/3 is said to have been used as burial ground from time immemorial.

S.F.No.4/8 has been classified as Kanmai.  In the year 2002, Tahsildar has

issued proceedings to shift the burial ground from S.F.No.4/3, Chettiyarpatti

tank which came to be challenged by the villagers in W.P.(MD) No.35694/2002.  In

the said Writ Petition, the villagers prayed to quash the Proceedings in

Rc.No.B.5/1323/2002 dated 30.04.2002 and to forbear the Respondents 1 and 2

therein from shifting the grave yard, cremation and burial ground and

crematories lying in S.F.No.4/3.  The said Writ Petition was disposed of by the

order dated 12.04.2005 directing the Tahsildar, Rajapalayam taluk to conduct a

fresh enquiry with reference to the representation made by the Petitioners

therein and also to get the statement from the persons concerned.   A peace

committee was held on 14.08.2006 and a decision was taken to shift the burial

ground.  The Tahsildar, Rajapalayam taluk communicated the same to the

Commissioner of Panchayat Union, Rajapalayam on 12.09.2006.  Even at that stage

the local people objected to shift the burial ground to S.F.No.4/8 which is also

classified  as Chettiarpatty kanmai and they continue to bury the dead bodies

only in S.F.No.4/3.

9. W.P.(MD)No.6064/2007 - Petitioner [Marimuthu] has filed this Writ

Petition seeking for issuance of Writ of Mandamus to direct the Respondents to

take expedite action to pass the  order in time bound manner for shifting the

burial ground and cremation shed as issued by the Tahsildar, Rajapalayam in Memo

Ref.No.B5/4134/2005 dated 12.09.2006.  The said Writ Petition was filed without

impleading the President of the Village Panchayat.  By the order dated

31.07.2007 in W.P.(MD) No.6064/2007, the Court has observed as follows:-

"3. Mr.Pala Ramasamy, learned Special Government Pleader filed a set of

documents, containing a recent communication dated 11.1.2006 sent by the

Tahsildar to the Commissioner, Rajapalayam Panchayat Union.  In the said

communication, it is stated by the first repondent that it was originally agreed

to shift the burial cum cremation ground to a place in Survey No.4/8,

Chettiarpattikulam Channel.  But there were objections to the same and hence a

new place had been identified for the shifting of the burial ground.  Under such

circumstances, the first respondent had requested the Panchayat Union

Commissioner by the communication dated 11.11.2006 to expedite the whole

process, so that the grievance of the devotees stand redressed.

4. In view of the steps taken by the 1st respondent as seen from the

communication dated 11.11.2006, the grievance of the petitioner appears to have

been redressed to a great extent.  Hence, this writ petition is closed.

However, the 2nd respondent shall ensure that the project of shifting the burial

cum cremation ground is expedited at the earliest.  No costs".

10. Thereafter, the Panchayat has passed a resolution stating that

S.F.No.4/8 is not feasible for shifting the burial ground.  Challenging the

communication of the Tahsildar dated 06.09.2007 addressed to the Commissioner of

Rajapalayam Panchayat Union, by giving direction to shift the burial ground to

S.F.No.4/8 to comply the order dated 31.07.2007 in W.P.(MD)No.6064/2007,

Dhalavaipuram Village President has filed W.P.(MD) No.10768/2007.  In the said

Writ Petition after referring to the contentions of the President, the learned

single Judge held that there are number of disputed questions involved and

directed the parties to workout the remedies before the competent civil court.

The relevant portion of the order reads as under:-

"9. Admittedly, there are a lot of disputed questions of fact involved in the

writ petitio.  Whether the place where the cremation cum burial ground is going

to be established is within the prohibited distance or not is broadly a disputed

question of fact, which cannot be resolved without having evidence before this

court.  Further whether the proposed place would be detrimental to the interest

of the public or not is also a matter to be resolved only on evidence.  The said

disputed questions of facts cannot be resolved by the writ court.  If the

parties are so advised, they can very well work out their remedies before the

competent civil court by getting the above disputed questions of fact resolved.

In my considered opinion, it would be very difficult to resolve the issue

involved in this writ petition, without deciding the above disputed questions of

fact.  In view of the same, the writ petition is not maintainable and therefore

the same is liable to be dismissed".

11. Pursuant to the direction, Thalavaipuram Village Panchayat President

has filed the suit in O.S.No.601/2009  before the District Munsif Court,

Srivilliputhur.   In the said suit, Petitioner received summons on 20.12.2009.

It is stated by the Respondents that after the receipt of suit summons, W.P.(MD)

No.14222/2009 has been filed on 22.12.2009 without disclosing the filing of

civil suit in O.S.No.601/2009.   For the sake of brevity, we are not referring

to the Contempt Petition in C.P.No.429/2007 filed against the order made in

W.P.(MD)No.6064/2007 and also the Review Application No.61/2010 filed in

W.P.(MD)No.10635/2010.

12. W.P.(MD)No.10635/2010 was filed by one Baskaran seeking for Writ of

Mandamus forbearing the Respondents therein from shifting the burial cum

cremation ground/grave yard lying in S.F.No.4/3 to S.F.No.4/8 which is

classified as Kanmai.  Referring to the earlier Writ Petition filed by the

villagers [W.P.(MD)No.10768/2007], the Bench has directed the Writ Petitioner-

Baskaran to workout his remedy in the civil Court by impleading himself in the

pending suit filed by the President.  One Arjunan has filed Civil Suit in

O.S.No.323/2010  on the file of District Munsif Court, Srivilliputhur in

representative capacity of Chettiyarpatti villagers.  In the said suit, the

officials are arrayed as Defendants 1 to 4 and Petitioner-Marimuthu was arrayed

as 5th Defendant.  The two suits O.S.No.601/2009 and O.S.No.323/2010 were filed

for declaration that the Proceedings of the Tahsildar, Rajapalayam in

Na.Ka.B5/4134/05 dated 06.09.2009 as null and void and for permanent injunction

restraining the Defendants from forming cremation ground in the disputed land.

13. Now the case of Petitioner is that inspite of the statement made in

the court in W.P.(MD)No.14222/2009, steps have not been taken to shift the

burial ground and the bodies continued to be buried in S.F.No.4/3 which amounts

to wilful disobedience of the order of the Court.  As pointed out earlier,

without disclosing the filing of civil suit regarding the same issue in

O.S.No.601/2009 in which the Petitioner was also served with summons, Petitioner

has filed W.P.(MD)No.14222/2009.  Orders were passed in W.P.(MD)No.14222/2009

that burial ground has been shifted from S.F.No.4/3 to S.F.No.4/8 on the

statement made by the counsels.  Learned counsel for Respondents have brought to

our notice regarding the display board put up in S.F.No.4/3.  The xerox copy of

photograph of the display board reads as under:-

mwptpg;g[

brd;id cah;ePjpkd;w kJiu fpis bg R cj;jput[[ vz;/ W.P.(MD) No:14222/2009; ehs;

24/2/2010?d;go ,we;jth;fspd; rly';fis g[ijf;fnth (my;yJ) vhpf;fnth brl;oahh;gl;o

fz;kha; g[y vz;/4-8I kl;Lnk gad;gLj;jntz;Lk;/  khwhf ,e;j ,lj;jpy; g[y vz;/4-3y;

g[ijf;fnth. vhpf;fnthTlhJ vd;W brd;di cah;ePjpkd;wk; kJiu fpisahy;

jilbra;ag;gl;Ls;sJ/  ,e;j cj;jputpid kPWgth;fs; kPJ rl;lg;goahd eltof;if

vLf;fg;gLk;/

cj;jput[g;go

According to Respondents they have taken all steps to shift the burial ground

from S.F.No.4/3 to S.F.No.4/8, but the village people are raising objections to

have the burial ground inside the Kanmai in S.F.No.4/8 stating that the entire

village people are using the burial ground in S.F.No.4/3 from time immemorial.

It was further stated during rainy season the entire Kanmai in S.F.No.4/8 is

inundated with water making it impossible to use the same as burial ground.

14. Placing reliance upon (2004) 7 SCC 261 [Prithawi Nath Ram v. State of

Jharkhand and others], the learned counsel for Petitioner contended that the

Court dealing with the application against the alleged non-compliance with its

earlier order cannot examine the rightness or wrongness of that order and it was

for the party alleging that it is impracticable to implement the earlier order

to approach the Court that has passed the order or the Appellate Court.  It was

further contended that review of the decision, contempt in respect of which is

in question is impermissible.   Contending that Court cannot examine the

correctness of the earlier decision or traverse beyond it and take a different

view from what was taken therein, the learned counsel for Petitioner placed

reliance upon (2006) 1 SCC 613 [Union of India and others v. Subedar Devassy

PV].  Reliance was also placed in (2005) 6 SCC 98 [Director of Education,

Uttaranchal and others v. Ved Prakash Jopshi and others].

15. Ofcourse, we have no quarrel over the proposition that in the contempt

proceedings, Court cannot examine the correctness of the earlier decision or

traverse beyond it.  On the question of impossibility to carry out the

direction,  in T.R.Dhananjaya v. J.Vasudevan [(1995) 5 SCC 619], the Supreme

Court held that "when the claim inter se had been adjudicated and had attained

finality, it is not open to the respondent to go behind the orders and dilute

the effect thereof".

16. Ofcourse earlier, the President has filed M.P.(MD) No.3/2010 in

W.P.(MD)No.14222/2009 seeking for modification of the order passed in

W.P.(MD)No.14222/2009 dated 16.08.2010 and the same came to be dismissed as

withdrawn [vide order dated 01.11.2010].  Since the Civil Court has already

seized up the matter, perhaps, the President might have thought fit to pursue

the relief in the pending civil suit.  Therefore in our considered view,

Respondents cannot be faulted.

17. As pointed out earlier, in W.P.(MD) No.14222/2009, the inter se

dispute between the parties had not been adjudicated.  Only recording the

statement of the counsels appearing for the parties, the Writ Petition was

disposed off.  Ofcourse in pursuance to the direction of the Court, Respondents

have also displayed the board in S.F.No.4/3.  Shifting of burial ground from

S.F.No.4/3 to S.F.No.4/8 involves co-operation of the villagers.  Death and

funeral rites and place of burial involve emotions. At the time of death,

grieved people cannot be compelled to burry the body in S.F.No.4/8.  In the

counter-affidavit filed by the officials, it is clearly stated that if the

villagers are so compelled, definitely law and order problem would arise in the

village.  That apart death being occasional, the officials cannot be compelled

to monitor the compliance of the order.  Only because of the resistance by the

villagers, it has become impracticable to implement the order and it cannot be

said that there is wilful disobedience on the part of the Respondents.

18. Serious disputed questions of fact are involved and civil cases are

also pending between the parties.  The issues (i) whether S.F.No.4/3 has been

used as burial ground from time immemorial; (ii) whether S.F.No.4/8 is feasible

for being used as burial ground; (iii) whether S.F.No.4/8 is within the

prohibited distance and other disputed questions are involved.  Those issues are

to be resolved only in the pending civil suits.  Pendency of civil suit in

O.S.No.601/2009 ought to have been brought to the notice of the Court.

Petitioner who was also served with summons in the civil suit, now cannot take

advantage of the order in W.P.(MD)No.14222/2009 and seek to enforce the shifting

of burial ground by filing the Contempt Petitions.  The issue of burial cum

cremation ground being a sensitive issue, Court should be slow to haul all the

officials for contempt.

19. The purpose of contempt is not to enforce the order, but to maintain

the dignity of the institution.  Contempt of Court is a matter between the Court

and the contemner.  In (2000) 4 SCC 400 [R.N.Dey and others v. Bhagyabati

Pramanik and others], the Supreme Court has held as under:-

"7. We may reiterate that the weapon of contempt is not to be used in abundance

or misused.  Normally, it cannot be used for execution of the decree or

implementation of an order for which alternative remedy in law is provided for.

Discretion given to the court is to be exercised for maintenance of the court's

dignity and majesty of law.  Further, an aggrieved party has no right to insist

that the court should exercise such jurisdiction as contempt is between a

contemner  and the court.  It is true that in the present case, the High Court

has kept the matter pending and has ordered that it should be heard along with

the first appeal.  But, at the same time, it is to be noticed that under the

coercion of contempt proceeding, appellants cannot be directed to pay the

compensation amount which they are disputing by asserting that claimants were

not the owners of the property in question and that decree was obtained by

suppressing the material fact and by fraud.  Even presuming that the claimants

are entitled to recover the amount of compensation as awarded by the trial court

as no stay order is granted by the High Court, at the most they are entitled to

recover the same by executing the said award wherein the State can or may

contend that the award is a nullity.  In such a situation, as there was no

wilful or deliberate disobedience of the order, the initiation of contempt

proceedings was wholly unjustified."

20. Learned counsel for Respondents submitted that Petitioner wants to

take undue advantage of the order in W.P.(MD)No.14222/2009 and seeks to coerce

the Respondents in shifting the burial ground which issue is otherwise seized up

by the competent civil court.  In our considered view since the disputed

questions of facts are involved, the issue has to be resolved only in the civil

court.  We do not find any wilful disobedience of the order of the court in

W.P.(MD)No.14222/2009 to punish the Respondents for Contempt of Court.

21. In the result, all the Contempt Petitions are dismissed.  No costs.

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