Madras High Court
Agri Horticultural Society vs The Principal Secretary Cum on 6 March, 2023
W.A.No.2678 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 15.02.2023
DATE OF DECISION : 06.03.2023
CORAM :
THE HON'BLE MR.T.RAJA, ACTING CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
W.A.No.2678 of 2022
Agri Horticultural Society
Society Registered under the
Tamil Nadu Societies Registration Act
having its office at No.18, Cathedral Road
Chennai 600 086 rep by its
Hon.Secretary, Mr.V.Krishnamurthy .. Appellant
v.
1. The Principal Secretary cum
Commissioner of Land Administration
Chepauk, Chennai 600 005
2. The Collector of Chennai
Rajaji Salai, Chennai 600 001
3. Y.Bhuvanesh Kumar
(R3 impleaded as per Court order
dt. 04.12.2012 in MP No.1 of 2012) .. Respondents
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Appeal filed under Clause 15 of the Letters Patent, against the order
dated 25.11.2022 passed in W.P.No.26255 of 2011.
For Appellant :: Mr.G.Rajagopalan
Senior Counsel for
M/s G.R.Associates
For Respondents :: Mr.J.Ravindran
Addl.Advocate General assisted by
Mr.A.Selvendran
Special Government Pleader
for R1 & R2
Mr.P.Wilson
Senior Counsel
for M/s P.Wilson Associates for R3
JUDGMENT
The Hon'ble Acting Chief Justice
Agri Horticultural Society represented by its Honorary Secretary
Mr.V.Krishnamurthy has brought this writ appeal challenging the impugned
order dated 25.11.2022 passed by the learned single Judge in Writ Petition
No.26255 of 2011.
2. The appellant/writ petitioner has unsuccessfully challenged the
show cause notice dated 01.11.2011 issued by the Principal Secretary and
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Commissioner of Land Administration before the learned single Judge,
calling upon the writ petitioner to show cause as to why the orders passed by
the District Revenue Officer/Collector (FAC) should not be cancelled for the
reasons inter alia that the entire extent of land in R.S.No.64 of Mylapore
Village has all along been registered as Government poramboke land; that
there was no documentary evidence produced by the appellant to establish
absolute title over the suit land; etc.
3. Mr.G.Rajagopalan, learned Senior Counsel appearing for the
appellant argued that the appellant society was formed on 15 July 1835 as
the Madras Agri-Horticultural Society. From the date of establishment of
the society, the appellant had purchased lands through private negotiations
and even during the period 1910, the Collector also had stated in one of his
reports that the society has purchased lands measuring 17 cawnies, 21
grounds and 185 square feet by private negotiations. With regard to 22
grounds situated on the southern side of the Cathedral Road, there is an
entry in the encumbrance register. Besides, the Government also had granted
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land to the appellant society from time to time. However, during the year
1964, there was an attempt to resume the land granted to the appellant
society, which was challenged before this Court. Subsequently, the matter
was compromised and the proceedings were dropped. Later on, in the year
1980, the Government again attempted to resume the land belonging to the
appellant society on the alleged ground of violation of the conditions of
grant. After detailed discussions, the appellant society unconditionally
accepted the Government's title to the land mentioned therein and the said
land was re-granted to the appellant society under G.O.Ms.No.513 dated
04.03.1980. But the right of ownership of the Government was confined
only to the extent mentioned in the said Government Order. While so, the
Government issued a show cause notice in July 1989 calling upon the
appellant to show cause as to why the land granted to the appellant society
by G.O.Ms.No.513 dated 04.03.1980 should not be resumed on certain
alleged grounds mentioned therein. As the Government passed
G.O.Ms.No.1259 dated 05.08.1989 grossly violating the principles of
natural justice and also took possession of the land, the appellant society
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filed W.P.Nos.11058 and 11059 of 1989 and this Court passed an order of
status quo to be maintained. Finally in its order dated 19.06.1998, this
Court allowed the writ petitions quashing the order of resumption on the
ground that it was politically motivated and there was no material to show
that the lands were really required by the Government. Aggrieved by the
order passed by the learned single Judge, W.A.Nos.1030 and 1031 of 1998
were filed and the same were also allowed by order dated 11.04.2008, as
against which, when appeals were filed before the Hon'ble Apex Court, the
said appeals were also finally dismissed in the year 2019 upholding the
resumption of the land. In the meanwhile, a notice dated 29.09.2010 was
issued calling upon the appellant society to produce the document in support
of their claim with regard to the land in question within 15 days time
doubting the ownership of the property. The appellant also sent a reply
dated 29.10.2010 questioning the jurisdiction of the District Collector to call
upon the appellant to establish their title and further informed the District
Collector that the Government land was only to the extent mentioned in
G.O.Ms.No.1259 dated 05.08.1989 and nothing more. But, ignoring the
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detailed reply, the District Collector proceeded to pass an order dated
08.12.2010 directing the appellant society to vacate from the land in
R.S.No.64 (part) on or before 15.12.2010. Therefore, questioning the said
order passed by the District Collector, the appellant filed W.P.No.28447 of
2010 contending that it was politically motivated and it is also against the
record.
4. Mr.G.Rajagopalan, learned Senior Counsel further contended that
the learned single Judge vide the order dated 29.03.2011 in W.P.No.28447
of 2010, recording the statement made by the learned Advocate General that
the appellant would be heard and thereafter the District Collector would pass
orders in accordance with law, setting aside the order impugned dated
08.12.2010 on the ground that the appellant's explanation was not
considered by the District Collector, had disposed of the writ petition with a
further direction to the appellant to file additional documents. Pursuant
thereto, the appellant produced all the documents, the District Collector,
carefully considering the same, passed an order on 22.08.2011 confirming
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the title in favour of the appellant society in respect of R.S.No.64 (part)
(O.S.R.No.3412) measuring 4 cawnies, 18 grounds and 1683 sq.ft,
Mylapore Village, Mylapore-Triplicane Taluk. When the appellant was
under the impression that the issue has been settled, yet again, the order
dated 01.11.2011 has been issued by the Principal Secretary and
Commissioner of Land Administration, the first respondent herein staying
the orders of the District Collector dated 22.08.2011 and 23.09.2011 and
thereupon issued a show cause notice on 01.11.2011 calling upon the
appellant to show cause as to why the orders of the District Collector dated
22.08.2011 and 23.09.2011 should not be cancelled. Mr.Rajagopalan
further contended that a mere reading of the show cause notice would go to
show that the show cause notice itself is without jurisdiction and does not
appear to be bona fide, for the reason that the revisionary power of the
Commissioner of Land Administration was terminated in the year 2008,
therefore, the suo motu power cannot be exercised under R.S.O.31.8(A).
This vital aspect has been overlooked by the learned single Judge. Secondly,
when the first respondent claims that the land in question belonged to the
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Government, the Government cannot be a judge of its own cause and this
would run contrary to the principle that no one shall be a judge in his own
cause. Thirdly, the provisions of Revenue Standing Orders are applicable
only in cases where the dispute is between two individuals and not when the
Government itself is a rival claimant. These vital aspects also have been
overlooked by the learned single Judge. Therefore, the findings and the
justification given for the dismissal of the writ petition are unsustainable in
law, hence, they are liable to be set aside and the writ appeal is bound to be
allowed, he pleaded.
5. A detailed counter affidavit has been filed by the third respondent.
Mr.P.Wilson, learned Senior Counsel appearing for the third respondent,
urging this Court to dismiss the writ appeal on the ground that the appellant
cannot file the writ petition questioning the show cause notice dated
01.11.2011 issued by the first respondent, contended that the appellant
cannot take a double stand before this Court, inasmuch as no one will be
entitled to approbate and reprobate. Learned Senior Counsel further argued
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that when the first respondent has issued the impugned notice dated
01.11.2011 calling upon the appellant to produce the relevant documents of
title and ownership with regard to the land in question covered in R.S.No.64
(part) in exercise of the suo motu power vested under R.S.O.31.8(A),
without proving the case, filing the writ petition before the learned single
Judge is unsustainable in law, in the light of the ratio laid down by the
Hon'ble Apex Court in the case of Union of India and another v. Kunisetty
Sathyanarayana, (2006) 12 SCC 28, wherein the Apex Court has clearly
held that ordinarily no writ shall be entertained against a show cause notice
or a charge sheet, because a mere show cause notice or charge sheet does
not give rise to any cause of action, because it does not amount to an adverse
order which affects the rights of any party unless the same has been issued
by a person having no jurisdiction to do so. The Apex Court, deprecating
the attitude of challenging the show cause notice, has settled the issue by a
series of decisions holding that ordinarily no writ lies against a charge sheet
or show cause notice. (See Executive Engineer, Bihar State Housing Board
v. Ramesh Kumar Singh, (1996) 1 SCC 327, Special Director v. Mohd.
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Ghulam Ghouse, (2004) 3 SCC 440, Ulagappa v. Divisional
Commissioner, Mysore, (2001) 10 SCC 639, State of U.P. v. Brahm Datt
Sharma, (1987) 2 SCC 179).
6. Explaining how the appellant has been taking a double stand,
Mr.P.Wilson further contended that when the appellant was issued with a
show cause notice dated 29.09.2010, after considering their reply dated
29.10.2010, the Collector had passed the order dated 08.12.2010 directing
the appellant to vacate from the said R.S.No.64 (part) on or before
15.12.2010. Questioning the same, W.P.No.28447 of 2010 was filed on the
ground that the appellant was not heard before passing the order. Learned
single Judge, accepting the case of the appellant that they were not heard
and their detailed representation was not considered properly, by setting
aside the impugned order, remanded the matter back to the District Collector
giving liberty to the appellant to produce additional documents with a
further direction to the District Collector to decide the case on merits and as
per law, by the order dated 29.03.2011. Pursuant thereto, the District
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Collector has decided the title of the land in issue in favour of the appellant.
The appellant, having accepted the jurisdiction of the District Collector in
the earlier round and obtained a favourable order in their favour, cannot now
say that there was lack of jurisdiction and mala fide, because the first
respondent cannot be the judge of their own cause. Such an approach is
against the principles of approbation and reprobation.
7. Answering the contention advanced by Mr.G.Rajagopalan, learned
Senior Counsel that the revisionary power of the Commissioner of Land
Administration was removed in the year 2008, therefore, suo motu power
cannot be exercised under R.S.O.31.8(A), Mr.P.Wilson argued that the suo
motu power of the first respondent has not been deleted or removed and only
the second revision against the order of the District Revenue Officer to the
Commissioner of Land Administration in patta transfer matter has been
withdrawn. That does not mean that the first respondent has been deprived
of the suo motu power under R.S.O.31.8(A) by the said Government Order.
In support of his submissions, he has also referred to an order passed by the
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Division Bench of this Court in Writ Appeal No.1930 of 2003 dated
24.02.2004 (Mrs.Rajeswari & another v. Commissioner of Land
Administration and others) dealing with a similar issue holding that the
Commissioner of Land Administration has the general power of suo motu
revision to call for the records of the District, Divisional and Taluk, when
representations are made to him about the procedural, material and legal
irregularities in the order passed by the subordinates and the revisional
authority can examine the case and decide legally. The Division Bench in the
aforementioned case has clearly held that the Commissioner of Land
Administration has got the suo motu power to review the order passed by
the District Revenue Officer. This legal aspect also has been rightly
considered by the learned single Judge. Therefore, the contention made by
the learned Senior Counsel for the appellant that the first respondent has no
power or jurisdiction to exercise the suo motu power under R.S.O.31.8(A) is
without any merit.
8. Mr.J.Ravindran, learned Additional Advocate General appearing
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for the respondents 1 and 2 argued that when the appellant has already
appeared before the District Collector and obtained an order that they have
title and ownership to the land in question, nothing prevents the appellant to
appear before the first respondent. Secondly, when the learned single Judge
vide the order dated 29.03.2011 passed in W.P.No.28447 of 2010 has
remanded the matter back directing the appellant to appear before the
District Collector to produce additional documents and accepting the same,
the appellant also appeared before the District Collector, it is not now open
to the appellant to say that he will not appear before the first respondent to
substantiate their claim with valid documents, on the ground that the first
respondent cannot decide the title when there is a dispute between the
appellant and the respondents. Therefore, the appeal is not maintainable and
the impugned order passed by the learned single Judge, being well-reasoned,
does not call for any interference.
9. We have heard the learned counsel appearing for the parties and
perused the materials available on record.
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10. When the appellant suffered an order dated 08.12.2010 passed by
the District Collector, Chennai, the second respondent herein holding against
them that they are not the owner of the land in question covered in
R.S.No.64 (part), the said order was questioned in W.P.No.28447 of 2010
before the learned single Judge, on the ground that when the District
Collector issued a notice dated 29.09.2010 calling upon the appellant to
produce the relevant documents showing the title and ownership of the land
in question, a detailed reply dated 29.10.2010 was given. But the same was
not considered. The learned single Judge, in the first round of litigation,
accepting the case of the appellant that their reply dated 29.10.2010 given to
the show cause notice issued by the very same Collector dated 29.09.2010
was not considered, by setting aside the order, had remanded the matter
back to the District Collector for fresh consideration on merits. The appellant
also, accepting the order passed by the learned single Judge, appeared before
the District Collector and produced the relevant documents and finally had
obtained a favourable order confirming their title to the land in question.
Further, the District Collector in his order dated 22.08.2011 has held that
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the title of the land covered in O.S.R.No.3412 Extent 4C - 18G - 1683 sq.ft
clearly forms part of RSR No.64 and there cannot be any ambiguity. When
this order is sought to be reviewed by the first respondent as a revisional
authority exercising the suo motu power vested in R.S.O.31.8(A) and his
power of suo motu revision, as rightly held by the learned single Judge, has
not been deleted, we do not find any error or infirmity in the impugned order
passed by the learned single Judge. This apart, the argument advanced by
the learned Senior Counsel appearing for the appellant that the suo motu
power vested in R.S.O.31.8(A) has been deleted, has already been found
against the appellant by the order passed by a Division Bench of this Court
in Writ Appeal No.1930 of 2003 dated 24.02.2004 (Mrs.Rajeswari &
another v. Commissioner of Land Administration and others) and this has
been rightly considered by the learned single Judge. The relevant paragraph
of the Division Bench order is reproduced below:-
"9. From the above Revenue Standing Order, it is
seen that the Commissioner of Land Administration
has the general power of suo motu revision to call for
the records of the District, Divisional and Taluk,
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when representations are made to him about the
procedural, material and legal irregularities in the
order passed by the subordinates, examine the case
and decide. The show cause notice in question was
issued on the basis of the report of the District
Collector, Kancheepuram. When the report of the
Head of the District Administration is received as to
the manner in which the order of the District
Revenue Officer was made in respect of the
classification of "dry Anadeenam" land, as "private
patta land" with further direction to transfer the
patta, there is absolutely no want of power on the
Commissioner of Land Administration, while he
exercised the suo motu power under Revenue
Standing Order 31.8(A). The report has given the
right to the cause for the Commissioner of Land
Administration to invoke the Revenue Standing
Order 31.8(A). Hence, we neither find any force nor
any merit in the contention of the learned Senior
Counsel that the Commissioner of Land
Administration has no suo motu power to review the
order of District Revenue Officer."
Yet another Division Bench of this Court in W.A.(MD) No.513 of 2017
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dated 10.08.2017 (The Commissioner of Land Administration, Chennai and
others v. P.Karmegam and others), while considering the same argument
that the revisional power vested on the first respondent in R.S.O.31.8(A) has
been deleted by way of G.O.Ms.No.409, Revenue Department dated
02.07.2008, has clearly held that this provision contains two parts. The first
part deals with the revision against an appeal. This can be done by anyone
of the aggrieved parties and the second part deals with the suo motu power
of the Commissioner of Land Administration. Observing so, the Division
Bench has held that the second part is kept in tact.
11. In the light of the above, the second contention made on behalf of
the appellant that the Government cannot decide its own title, is also liable
to be rejected, since the issue of suo motu revision is taken against the order
of the District Collector. If the argument of the learned Senior Counsel is to
be accepted, then the earlier order dated 22.08.2011 of the District Collector
in deciding the issue in favour of the appellant would be without jurisdiction.
Therefore, when the appellant has accepted the order of the Collector dated
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22.08.2011, it cannot turn around and contend that the first respondent has
no authority to decide the revision. When the order passed by the Collector
is sought to be reviewed under R.S.O.31.8(A) by the first respondent, the
appellant on the one hand, while pleading that the order of the Collector
should stay, cannot, on the other hand, raise a contra plea that the
authorities cannot decide their own title, as the appellant cannot be
permitted to approbate and reprobate at the same time.
12. In this context, the Hon'ble Apex Court in Union of India and
others v. N.Murugesan and others, (2022) 2 SCC 25, elucidating the
principle of approbate and reprobate, has succinctly held as follows:-
"Approbate and reprobate
26. These phrases are borrowed from the Scots
law. They would only mean that no party can be
allowed to accept and reject the same thing, and
thus one cannot blow hot and cold. The principle
behind the doctrine of election is inbuilt in the
concept of approbate and reprobate. Once again, it
is a principle of equity coming under the contours
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of common law. Therefore, he who knows that if
he objects to an instrument, he will not get the
benefit he wants cannot be allowed to do so while
enjoying the fruits. One cannot take advantage of
one part while rejecting the rest. A person cannot
be allowed to have the benefit of an instrument
while questioning the same. Such a party either has
to affirm or disaffirm the transaction. This
principle has to be applied with more vigour as a
common law principle, if such a party actually
enjoys the one part fully and on near completion of
the said enjoyment, thereafter questions the other
part. An element of fair play is inbuilt in this
principle. It is also a species of estoppel dealing
with the conduct of a party..."
(emphasis supplied)
In the light of the above settled legal position, since the appellant had
already appeared before the District Collector and obtained an order dated
22.08.2011, when the said order is sought to be reviewed by the first
respondent exercising the suo motu power vested in R.S.O.31.8(A), the
appellant cannot have any objection for appearing before the first respondent
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to substantiate their claim on merits. Moreover, it is a well settled legal
position that a writ petition challenging the show cause notice is clearly not
maintainable. Therefore, the said contention of the learned Senior Counsel
for the appellant is also rejected.
13. For the aforementioned reasons, the writ appeal fails and it is
dismissed confirming the impugned order. The appellant is directed to give
reply within a period of three weeks from the date of receipt of a copy of this
order and thereafter, the first respondent, after giving an opportunity of
hearing to the appellant, shall proceed in accordance with law.
Consequently, interim order stands vacated and the C.M.P.Nos.21632 of
2022 & 803 of 2023 are also dismissed. However, there shall be no order as
to costs.
Speaking order (T.R.,A.C.J.) (D.B.C.,J.)
Index : yes 06.03.2023
ss
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To
1. The Principal Secretary cum
Commissioner of Land Administration
Chepauk, Chennai 600 005
2. The Collector of Chennai
Rajaji Salai, Chennai 600 001
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THE HON'BLE ACTING CHIEF JUSTICE
AND
D.BHARATHA CHAKRAVARTHY,J.
ss
Judgment in
W.A.No.2678 of 2022
06.03.2023
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