Madras High Court
S.Meenatchi vs The Additional Collector ... on 3 February, 2022
W.P.(MD)No.3148 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 22.03.2022
DELIVERED ON : 01.04.2022
CORAM
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
W.P.(MD)No.3148 of 2022
and
W.M.P.(MD)Nos.3377 and 3989 of 2022
S.Meenatchi ... Petitioner
vs.
1.The Additional Collector (Development),
District Rural Development Agency,
Dindigul.
2.The Assistant Director (Panchayat),
Dindigul.
3.The Block Development Officer,
Batlagundu Panchayat Union,
Batlagundu, Dindigul District.
4.The Revenue Divisional Officer,
Dindigul District.
5.The Tahsildar,
Nilakottai Taluk, Dindigul District.
6.The Sub Inspector of Police,
Viruveedu Police Station,
Dindigul District.
1/25
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W.P.(MD)No.3148 of 2022
7.The Commissioner of Land Reforms,
Commissionerate of Land Reforms,
Ezhilagam, Chepauk, Chennai.
8.M/s.F.Robin Power Solutions Private Limited,
represented by its General Manager, S.Johnson,
Dindigul District. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India for issuance of Writ of Certiorarified Mandamus, to call for the
records from the third respondent and quash his orders / advice
Na.Ka.No.138/2022/2Thi, dated 03.02.2022 and Na.Ka.No.
138/2022/2Thi, dated 07.02.2022 and order valuation of the materials by
the engineer Panchayat Union then permit the petitioner office or any
competent office this Court deems fit and to call for auctionor this
materials attached.
For Petitioner :Mr.K.Surendran
For R1, R2, R4 to R7 :Mrs.S.Jeyapriya
Government Advocate
For R3 :Mr.D.S.Nedunchezhian
Government Advocate
For R8 :Mr.M.Ajmal Khan, Senior Counsel
for M/s.Ajmal Associates
*****
ORDER
The question that arises for consideration in this Writ Petition is
whether an order passed by the third respondent/Block Development
Officer, dated 03.02.2022 stating that the attachment of building
materials by the petitioner, who is a Panchayat President, cannot be done
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without the permission of the District Collector and revenue officials, can
be challenged by the petitioner in a Writ Petition.
2.The petitioner is the Panchayat President of Nadakottai
Panchayat, Nilakottai Taluk, Dindigul District. She has effected
attachment of materials lying in the premises of the eighth respondent
situated at S.Nos.260/2, 260/4, 262/1, 262/2, 262/3, 262/4, 262/5, 318/3,
318/5, 319/1, 319/3A, 319/3B, 319/3C, 319/4A, 320/1, 321/2B2,
321/2B3, 321/3 and 364/5 at Nadakottai Village, Nilakottai Taluk,
Dindigul District, under Section 143-A of the Tamil Nadu Panchayats
Act, 1994.
3.According to the petitioner, the aforementioned lands are
bhoodan and gramadhan lands and cannot be alienated. It is the
contention of the petitioner that a gramasabha of Nadakottai Panchayat
passed a resolution on 02.10.2021 that the lands, which are in illegal
possession of the eighth respondent should be retrieved by the
authorities. According to the petitioner, there is an error in the UDR
patta issued in favour of the eighth respondent. According to the
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petitioner, the eighth respondent can never become the owner of the
subject lands.
4.It is the contention of the petitioner that the eighth respondent
has encroached upon the Government lands in S.Nos.244/1, 244/8,
251/2, 253/1, 256/1B, 264, 321/2B1 and 322/3, measuring approximately
ten acres. It is also the contention of the petitioner that the eighth
respondent has also encroached and destroyed streams, regular pathway,
ooranis, public wells and bore wells, which are directly maintained by
the Panchayat.
5.According to the petitioner, without approval of the Panchayat
Union, the eighth respondent has initiated construction work in the
subject property. According to the petitioner, on 12.01.2022, she issued a
statutory notice under Section 143-A of the Tamil Nadu Panchayats Act,
1994, to the eighth respondent calling upon them to stop the construction
work and remove the construction materials from the site within a period
of seven days from the date of receipt of the notice.
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6.It is the contention of the petitioner that no reply was received by
the petitioner to the statutory notice and only thereafter, the petitioner
ordered attachment of building materials lying in the eighth respondent's
premises. However, according to the petitioner, arbitrarily and illegally,
without taking action against the eighth respondent, the third respondent
has issued the impugned notice to the petitioner, dated 03.02.2022 stating
that the attachment of building materials by the petitioner cannot be done
without the permission of the District Collector and revenue officials.
According to the petitioner, the act of the third respondent under the
impugned order would tantamount to helping a wrong doer, who is the
eighth respondent herein. It is the contention of the petitioner that the
third respondent does not have any legal authority to issue the impugned
direction to the petitioner. In such circumstances, this Writ Petition has
been filed.
7.A counter affidavit has been filed by the eighth respondent
denying the allegations made by the petitioner. According to the eighth
respondent, the Writ Petition filed by the Panchayat President is not
maintainable. It is their contention that a person in the capacity of
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implementing an order under law cannot challenge an order passed by
another statutory authority by filing a Writ Petition and a Writ Petition
assailing such an action is ex facie not maintainable.
8.It is the contention of the eighth respondent that the subject lands
do not belong to the eighth respondent, but belong to five other
companies, namely, ACV Products Private Limited, Coimbatore,
M/s.Kayar Exports Private Limited, M/s.VeeBee Yarnntex Private
Limited, M/s.Subburaj Cotton Mills Private Limited and Mahavishnu
Spinning Mills Private Limited. According to them, they are merely an
installation agency hired by the said companies for the purpose of setting
up solar power plant unit for generation of electricity to be fed into the
grid through Sitthargal Natham Sub Division, Dindigul District. Since
the owners of the said lands have not been made as party respondents, the
present Writ Petition is not maintainable.
9.According to the eighth respondent, instead of giving effect to
the orders passed by the third respondent/Block Development Officer, the
petitioner, who is the Panchayat President, is acting in defiance and
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therefore, she is liable for removal as per Section 205 of the Tamil Nadu
Panchayats Act, 1994. The petitioner had already filed a Writ Petition in
W.P.(MD)No.19764 of 2021 in connection with the same subject matter
as a public interest litigation and the same is pending for disposal. Such
being the case, having subjected herself to an earlier litigation on the
same subject matter, the petitioner cannot file another Writ Petition
seeking to undertake parallel proceedings.
10.According to the eighth respondent, the subject lands are patta
lands belonging to the aforesaid companies. They had purchased the
same for valuable consideration and all the revenue records in respect of
the subject lands stand in the names of the said companies. The
allegations that Nadaottai Gramdan Sarvodaya Sangam is having title
over the said lands and the possession and enjoyment of the same is with
the farmers of the village is false. The subject lands are neither bhoodan
nor gramadhan lands, but, are private properties of the aforementioned
entities.
11.The allegations that in the year 1985, during UDR survey, the
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patta has been erroneously updated in the name of the private entities is
misplaced and no such allegation is borne out of records. Being patta
lands, the petitioner, as a Panchayat President, has no jurisdiction to
interfere with the rights of the private entities to deal with their
respective properties.
12.The eighth respondent never encroached upon the Government
lands, as alleged by the petitioner. The project of the eighth respondent
does not affect the public streams/pathways or bore wells, as alleged by
the petitioner. Section 143 and Section 143-A of the Tamil Nadu
Panchayats Act, 1994, have no relevance. Section 143 of the Act deals
with precautions in case of tanks and wells, but whereas, Section 143-A
of the Act deals with permission to sink a well.
13.According to the eighth respondent, in a solar power plant, no
construction is made, but only solar power plant units are installed,
which is not a construction or development as per the provisions of the
Tamil Nadu Panchayats Act, 1994 and therefore, it is not a building under
Section 2(1)(A) of the Act and consequently, it neither requires planning
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permission nor it is governed by the Tamil Nadu Building Panchayat
Rules.
14.According to the eighth respondent, the petitioner is known for
demanding illegal gratification from various entities to unjustly enrich
herself. In fact, the eighth respondent had preferred a complaint to the
police stating inter alia that certain anti social elements are indulging in
extortion and have been demanding huge sums of money or threatening
to not to allow the implementation of the project. The said complaint has
been taken on file as Cr.No.23 of 2022, dated 27.01.2022 on the file of
the Viriveedu Police Station. In addition to the above, the eighth
respondent has moved this Court seeking police protection in view of the
above apprehension and this Court by its order, dated 01.11.2021 in W.P.
(MD)No.19706 of 2021 had directed the police to grant adequate police
protection for the implementation of the solar power project.
15.All the above facts, despite being within the knowledge of the
petitioner, have been suppressed in this Writ Petition. There is no power
conferred in the Tamil Nadu Panchayats Act, 1994, to pass order for
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attachment of properties or for auction of the same. The third respondent
had rightly issued the impugned direction to the petitioner in the present
Writ Petition. The petitioner has no legal right to assail the impugned
proceedings. Further, it is to be noted that the petitioner had already
preferred an appeal against the order impugned in the present Writ
Petition to the Inspector of Panchayat on 09.02.2022 and having already
approached the first respondent, the present Writ Petition is not
maintainable, as it lacks bona fides. The instant Writ Petition is an abuse
of process of law, tainted by suppression of material facts, actuated by
malice and without a semblance of legal right.
16.Heard Mr.K.Surendran, learned Counsel for the petitioner,
Mrs.S.Jeyapriya, learned Government Advocate appearing for R1, R2
and R4 to R7, Mr.D.S.Nedunchezhian, learned Government Advocate
appearing for the third respondent and Mr.M.Ajmal Khan, learned Senior
Counsel for the eighth respondent.
17.Mr.K.Surendran, learned Counsel for the petitioner reiterated
the contents of the affidavit filed in support of this Writ Petition and
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would submit that the subject lands are bhoodan lands, which cannot be
alienated and belong to farmers of Nadakottai village. According to the
petitioner, the eighth respondent is in illegal possession of the said lands
and only in such circumstances, the materials lying in the subject lands
belonging to the eighth respondent were attached exercising the power
under Sections 143 and 143-A of the Act. According to him, due to an
error during UDR survey, the names of the land owners has been altered.
Therefore, according to him, the eighth respondent is in illegal
possession of the subject lands.
18.He would submit that the eighth respondent has encroached
upon the Government lands measuring approximately 10 acres and the
eighth respondent has also encroached and destroyed streams, regular
pathway, ooranis and bore wells, which are directly maintained by the
Panchayat. According to the petitioner, without the approval of the
Panchayat Union, the eighth respondent has started construction work in
the subject property. According to him, as per the provisions of Section
143-A of the Act, the petitioner, who is the Panchayat President, is
entitled to call upon the eighth respondent to stop the construction work
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and to remove the construction materials from the site within a period of
seven days from the date of receipt of the notice.
19.According to him, no reply was also received for the notice sent
by the petitioner under Section 143-A of the Act. According to the
learned Counsel for the petitioner, the act of the eighth respondent, as
seen from the impugned order, would tantamount to helping a wrong
doer, who is the eighth respondent herein. According to him, the third
respondent does not have any legal authority to issue the impugned
direction to the petitioner.
20.Per contra, Mr.M.Ajmal Khan, learned Senior Counsel for the
eighth respondent would submit that the Writ Petition is not
maintainable. He would submit that Section 143-A of the Act has no
relevance for the facts of the instant case. He drew the attention of this
Court to Section 143-A of the Act, which deals with grant of permission
to sink a well, which has no relevance to the facts of the instant case.
21.He would further submit that the petitioner instead of
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implementing the orders of the Block Development Officer and the
District Collector, has disobeyed the same by filing this Writ Petition.
According to him, the petitioner has no locus standi to institute this Writ
Petition. He drew the attention of this Court to a Full Bench Judgment of
this Court in the case of Union of India vs Member Secretary, CMDA,
reported in 2006 (4) CTC 460, and would submit that a person in the
capacity to implement an order under law cannot challenge such order by
filing a Writ Petition and a Writ Petition assailing such action is ex facie
not maintainable.
22.The learned Senior Counsel would further submit that the
subject lands does not belong to the eighth respondent, but belongs to a
group of companies, who have not been arrayed as party respondents in
this Writ Petition. Therefore, this Writ Petition is not maintainable for
non joinder of necessary parties. Further, he would submit that the
eighth respondent is only an installation agency and is not the owner of
the subject lands.
23.Mr.M.Ajmal Khan, learned Senior Counsel would submit that
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the subject lands are patta lands belonging to a group of companies and
therefore, the petitioner has no locus standi to institute this Writ Petition.
According to him, the eighth respondent has not violated any of the
provisions of the Tamil Nadu Panchayats Act, 1994 and its rules.
24.Mr.M.Ajmal Khan, learned Senior Counsel also drew the
attention of this Court to Section 202 of the Act and would submit that
the District Collector, who is the Inspector of Panchayat, is empowered
to suspend or cancel any resolution passed, order issued or licence or
permission granted by the petitioner, who is the Panchayat President.
Therefore, according to him, only in accordance with the provisions of
Section 202 of the Act, the Block Development Officer, concurred with
the District Collector and has issued the impugned communication to the
petitioner. He would further submit that the petitioner has attempted to
attach the movables lying in the subject lands without the permission of
the District Collector under Section 143-A of the Act, which is ex facie
illegal.
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Discussion:
25.The petitioner is the Panchayat President. The impugned
communication, dated 07.02.2022 has been sent to her, wherein, the third
respondent/Block Development Officer has intimated the petitioner that
the attachment of building materials by her in the eighth respondent
premises under Section 143-A of the Tamil Nadu Panchayats Act, 1994,
has been done without the permission of the District Collector and
revenue officials and therefore, the same is bad in law. Under the
impugned communication, a further direction has been issued to the
petitioner to remove the notice affixed in the eighth respondent's
premises regarding alleged attachment issued under Section 143-A of the
Tamil Nadu Panchayats Act, 1994. Section 143-A of the Tamil Nadu
Panchayats Act, 1994, reads as follows:
“143. (I) If any tank, pond, well, hole, stream, dam, bank
or other place appears to him to be, for want of sufficient repair,
protection or enclosure, dangerous to the public health or safety,
the commissioner or executive authority may with the approval of
the panchayat union council or village panchayat, as the case
may be, by notice require the owner to fill in, remove, repair,
protect or enclose the same so as to prevent any danger
therefrom.”
26(A).As seen from the aforesaid section, it deals with seeking
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permission to sink a well. It is not empower a Panchayat President to
attach movables, as was done by the petitioner on 30.01.2022 in her
attachment notice.
26.It is not in dispute that the subject lands are patta lands.
According to the eighth respondent, they are owned by five entities,
namely, ACV Products Private Limited, Coimbatore, M/s.Kayar Exports
Private Limited, M/s.VeeBee Yarnntex Private Limited, M/s.Subburaj
Cotton Mills Private Limited and Mahavishnu Spinning Mills Private
Limited, for the purpose of setting up a solar power plant unit for
generation of electricity to be fed into the grid through Sitthargal Natham
Sub Division, Dindigul District. The aforesaid companies have not been
made as party respondents, despite a categorical stand having been taken
by the eighth respondent in their counter affidavit that they are not the
owners of the subject lands, but they are only an installation agency.
Therefore, this Court is of the considered view that the Writ Petition will
have to be dismissed for non joinder of necessary parties.
27.No documentary evidence has been produced by the petitioner
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to prove that the subject lands are bhoodan or gramadhan lands. On the
contrary, the contentions of the eighth respondent and other official
respondents is that the subject lands are patta lands owned by various
entities referred to in the counter affidavit filed by the eighth respondent,
have also not been denied by the petitioner by filing a reply affidavit to
the counter affidavit filed by the eighth respondent. Even during the
submissions made by the learned Counsel for the petitioner, the
statements made by the eighth respondent in its counter affidavit that the
subject lands are patta lands and owned by five different entities have not
been denied. Therefore, it will have to be presumed that the subject
lands are patta lands owned by different entities and cannot be classified
as bhoodan or gramadhan lands.
28.The petitioner had issued the attachment notice on 30.01.2022
on the ground that the eighth respondent is an encroacher of the subject
lands measuring 10 acres. It is also the contention of the petitioner that
the eighth respondent has also encroached and destroyed streams, regular
pathway, ooranis, and bore wells, which are directly maintained by the
Panchayat. However, no documentary evidence has been produced by
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the petitioner before this Court in support of the said contention. On the
contrary, all the official respondents have not denied the fact that the
subject lands are patta lands. The petitioner has also not denied the same
either through an affidavit or in the submissions made by her Counsel
before this Court.
29.The attachment notice has been issued by the petitioner, as a
Panchayat President on 30.01.2022 without the approval of the District
Collector. The third respondent/Block Development Officer has also
issued the impugned communication to the petitioner on the ground that
the petitioner has issued the attachment notice without getting approval
of the District Collector and other revenue officials. It is also the
contention of the official respondents that only with the concurrence of
the District Collector, the impugned communication has been issued to
the petitioner, who is the Panchayat President. Section 202 of the Tamil
Nadu Panchayat Act, 1994, reads as follows:
“202. (1) The Inspector may, by order in writing,-
(i) suspend or cancel any resolution passed, order issued, or
licence or permission granted, or
(ii) prohibit the doing of any act which is about to be done or is
being done, in pursuance or under colour of this Act, if in his
opinion,
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(a) such resolution, order, licence, permission or act has not been
legally passed, issued, granted or authorised, or
(b) such resolution, order, licence, permission or act is in excess
of the powers conferred by this Act or any other law or an abuse
of such powers or is considered by the Inspector to be otherwise
undesirable, or
(c) the execution of such resolution or order, or the continuance
in force of such licence or permission or the doing of such act is
likely to cause danger to human life, health or safety, or is likely
to lead to a riot or an affray:
Provided that nothing in this sub-section shall enable the
Inspector to set aside any election which has been held.
(2) The Inspector shall, before taking action on any of the
grounds referred to in clauses (a) and (b) of sub-section (1), give
the authority or person concerned an opportunity for
explanation.
(3) The power conferred on the Inspector under clause (c) of sub-
section (I) may be exercised by the Collector in accordance with
the provisions of that clause.”
30.As seen from the aforementioned section, the District Collector
is having the power to prohibit the doing of any act, which is about to be
done or is being done in pursuance or under colour of the Tamil Nadu
Panchayats Act, if in his opinion, such a resolution, order, licence,
permission or act has not been legally passed, issued, granted or
authorised. The Inspector referred to the above Section is the District
Collector. Hence, it is clear that the District Collector is having the
power to issue communication, as in the nature of one, which is
impugned in this Writ Petition. Though the same has been issued by the
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Block Development Officer, a categorical stand has been taken that the
said communication has been issued only with the approval of the
District Collector. None of the respondents have also not denied the
same. The petitioner has also not contended that the impugned
communication has been issued without the approval of the District
Collector. Therefore, it is to be presumed that prior approval was
obtained by the third respondent/Block Development Officer from the
District Collector before issuing the impugned communication to the
petitioner. The act of the third respondent under the impugned
communication would not tantamount to helping a wrong doer, as alleged
by the petitioner. There are no materials/evidence placed before this
Court to show that the eighth respondent is a wrong doer. When there
are no materials/evidence against the eighth respondent, the aforesaid
contention of the petitioner has to be necessarily rejected.
31.The District Collector, being the Executive Head of the district,
exercises overall supervision on other Government agencies in his
district. He is, in short, the head of the district administration, a
coordinating officer among various departments and a connecting link
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between the public and the government so far as he executes the policies,
administers the rules and regulations framed by the government from
time to time. Hence, the impugned communication issued by the third
respondent/Block Development Officer, after obtaining approval from
the District Collector, cannot be considered to be not in accordance with
law. Only in accordance with the statutory powers granted to a District
Collector, the third respondent, on his approval, has issued the impugned
communication to the petitioner, who is a Panchayat President.
32.The project, which is attempted to be stalled by the petitioner, is
a public project and it relates to installation of a solar power plant.
Without any documentary evidence, this Writ Petition has been filed by a
Panchayat President, which goes against the public interest. The eighth
respondent has already lodged a criminal complaint against the petitioner
and an FIR has also been registered in Cr.No.23 of 2022 on 27.01.2022
on the file of the Viriveedu Police Station. The eighth respondent has
already obtained police protection through an order passed by this Court
on 01.11.2021 in W.P.(MD)No.19706 of 2021.
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33.The eighth respondent has also raised a contention that the
petitioner is known for demanding illegal gratification from various
entities to unjustly enrich herself. Though the said contention has been
raised without any documentary evidence, this Court cannot totally
ignore the said contention to be false, as the conduct of the petitioner
raises some suspicion on the minds of the Court. However, the present
issue is not one concerning the integrity of the petitioner and therefore,
there is no necessity for this Court to make a roving enquiry against those
allegations levelled by the eighth respondent in their counter affidavit.
34.The petitioner is a Panchayat President and is a responsible
person in the Society, who has been vested with certain statutory powers.
She must act responsibly, while discharging her function and should not
have any personal interest. The petitioner has now challenged the
impugned communication sent by the third respondent/Block
Development Officer, which is not an adverse order passed against the
petitioner, but is only a communication intimating the petitioner that the
attachment notice issued by her against the eighth respondent is not in
accordance with law, as it has been issued without the approval of the
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District Collector and other revenue officials.
35.As observed earlier, the attachment notice, dated 30.01.2022
issued by the petitioner against the eighth respondent is not in
accordance with law, and hence, the impugned communication cannot be
challenged by the petitioner, who is also having certain statutory powers
under the Tamil Nadu Panchayats Act, 1994, to implement certain orders.
36.The decision relied upon by the learned Senior Counsel for the
eighth respondent in the case of Union of India vs Member Secretary,
CMDA, reported in 2006 (4) CTC 460, applies to the facts of the present
case, as it is also a case, where, the petitioner, who is the Panchayat
President, instead of implementing the order of the third
respondent/Block Development Officer, has challenged the same by
filing this Writ Petition.
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37.For the foregoing reasons, there is absolutely no merit in this
Writ Petition. Accordingly, this Writ Petition is dismissed. No costs.
Consequently, connected miscellaneous petitions are closed.
Index :Yes / No 01.04.2022
Internet :Yes
cmr
To
1.The Additional Collector (Development),
District Rural Development Agency,
Dindigul.
2.The Assistant Director (Panchayat),
Dindigul.
3.The Block Development Officer,
Batlagundu Panchayat Union,
Batlagundu, Dindigul District.
4.The Revenue Divisional Officer,
Dindigul District.
5.The Tahsildar,
Nilakottai Taluk, Dindigul District.
6.The Sub Inspector of Police,
Viruveedu Police Station,
Dindigul District.
7.The Commissioner of Land Reforms,
Commissionerate of Land Reforms,
Ezhilagam, Chepauk, Chennai.
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ABDUL QUDDHOSE, J.
cmr
Order made in
W.P.(MD)No.3148 of 2022
01.04.2022
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