(made by M. SUNDAR, J.)
This order will now govern the captioned main writ petition and
captioned writ miscellaneous petitions thereat.
2. When the captioned matter was listed yesterday
[Order of the Court was made by M.SUNDAR. J.,]
Captioned main 'Writ Petition' {hereinafter 'WP' for the sake of
brevity} has been filed with a Certiorarified mandamus prayer.
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2. In and vide certiorari limb, an 'order dated 28.01.2025 bearing
reference Na.Ka.115/2025/A5 made by R4 [the Tahsildar, Udumalpet
Taluk, Tiruppur District]' {hereinafter 'impugned order' for the sake of
brevity, convenience and clarity} has been assailed.
3. Mr.Rahul Balaji, learned counsel on record for writ petitioner,
adverting to impugned order submits that impugned order directs further
proceedings pursuant to notice and order under Sections 7 and 6
respectively of 'the Tamil Nadu Land Encroachment Act, 1905 (Tamil
Nadu Act III of 1905)' {hereinafter 'said 1905 Act' for the sake of
brevity}. To be noted, Section 7 notice is dated 03.12.2024 and Section
6 notice / order is dated 04.12.2024 but contains a signature in the office
of R4 dated 02.01.2025.
4. Subject matter of aforementioned proceedings is 'land
admeasuring 4.09 acres or thereabouts comprised in S.Nos.419/1 and
419/4 in Ellayamuthur Village, Udumalpet Taluk, Tiruppur District'
{hereinafter 'said land' for the sake of brevity, convenience and clarity}.
5. Learned counsel for writ petitioner submits that writ petitioner
originally sought assignment, filed a writ petition in W.P.No.11296 of
2014 regarding assignment application dated 07.09.2013. This writ
petition was disposed of on 07.02.2022 by a Hon'ble single Judge
directing R1 before us to consider the assignment application on merits
and in accordance with law and pass orders within 12 weeks but
thereafter, the Government has issued G.O.Ms.No.201 dated 10.05.2022
providing for exchange inter alia by substituting Order 26A of 'Revenue
Standing Order' {'RSO'} and therefore, the writ petitioner applied for
exchange on 17.12.2024 offering a equivalent 4.09 acres in
S.Nos.188/A2 and 187/2 Part in Ellayamuthur Village, Udumalpet
Taluk, Tiruppur District.
6. Pending exchange application, proceedings under said 1905
Act were kick started and the same has culminated in impugned order is
learned counsel for writ petitioner's say.
7. Issue notice.
8. Mr.T.K.Saravanan, learned Government Advocate accepts
notice for all five respondents and seeks a short accommodation inter
alia to get instructions qua who is the authority / which is the authority,
which is vested with power to decide on the exchange plea of writ
petitioner.
9. Let the matter stand over by a day.
List in the Admission Board i.e., Motion List tomorrow
(06.02.2025).
[M.S., J] [K.G.T., J]
05.02.2025'
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3. The aforementioned proceedings/order shall now be read
as integral part and parcel of this order. This means that the short
forms, short references and abbreviations used in our earlier
proceedings/order dated 05.02.2025 shall continue to be used in the
instant order too.
4. Adverting to the aforementioned earlier proceedings/order,
learned State counsel submitted that the authority which is vested with
the power to decide the exchange plea is, the Commissioner of Land
Administration (CLA) but the CLA will act on reports from R1, which, in
turn, will be on the basis of reports collected from the hierarchy of
Revenue officials.
5. The impugned order is clearly an order consequent to
Section 7 and 6 notice/orders, details of which have been captured in
paragraph no.3 of our earlier proceedings/order which, as alluded to
supra, is now an integral part and parcel of this order.
6. Absent notice/order under Section 6, the impugned order
could not have been made. Before we proceed further, we deem it
appropriate to record the stated position of learned State counsel that
the notice/order under Section 6 is dated 02.01.2025 and not
04.12.2024 and that it was served on writ petitioner on 08.01.2025. In
the light of paragraph no.3 of our earlier proceedings/order dated
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05.02.2025, we now proceed on the basis that notice/order under
Section 6 made by R4 is dated 02.01.2025 (not 04.12.2024) and it
was served on writ petitioner on 08.01.2025. It is also made clear
that the date 04.12.2024 mentioned in earlier proceedings/order is
date of G.O. Ms.No.540 issued by Revenue Department [S.T. 6(2)].
7. A statutory appeal under Section 10 of said 1905 Act is
available to writ petitioner qua Section 6 notice/order made by R4.
There is no disputation or contestation on this obtaining position. This
Court is also informed by learned counsel for writ petitioner that the
writ petitioner has not preferred a statutory appeal under Section 10.
8. Therefore, this Court heard learned counsel for writ
petitioner on Alternative Remedy.
9. Before proceeding further, we deem it appropriate to write
the obtaining legal position that Alternative Remedy rule is not an
absolute rule and that it is a rule of discretion. Exceptions to
Alternative Remedy rule have been adumbrated in the oft-quoted
celebrated Whirlpool judgment i.e., Whirlpool Corporation vs.
Registrar of Trade Marks, Mumbai and others reported in (1998)
8 SCC 1. These exceptions have come to stay in legal parlance as
Whirlpool exceptions. The Whirlpool exceptions, broadly stated, are
four in number and they are:
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(i) Enforcement of fundamental rights;
(ii) Violation of Natural Justice Principles (NJP);
(iii) Order being 'wholly' without jurisdiction; and
(iv) when the vires of a statute are assailed.
10. On the touchstone of Whirlpool principle, we heard
learned counsel for writ petitioner on Alternative Remedy.
11. Learned counsel took us through certain provisions of said
1905 Act and they are Section 2 captioned 'Right of property in public
roads, etc. waters and lands', Section 3 captioned 'Levy of assessment
on lands unauthorisedly occupied', Section 7 captioned 'Prior notice to
person in occupation' and Section 6 captioned 'Liability of person
unauthorisedly occupying land to summary eviction, forfeiture of
crops, etc.'. Adverting to these provisions, learned counsel for writ
petitioner submitted that the Appellate Authority (to be noted, in this
case, R1 is the Appellate Authority) will not have powers to take
cognizance of the pendency of the exchange plea.
12. The argument is, a conjoint reading of the aforementioned
provisions of said 1905 Act, makes it clear that the statutory appeal
before R1 is capable of answers which are only binary, i.e., as to
whether public roads, streets, lanes, bridges, ditches, etc. adumbrated
in Section 2 have been occupied or not.
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13. To put it differently, learned counsel for writ petitioner
predicated his argument on the simple point that Alternative Remedy is
inefficacious in the facts and circumstances of the case on hand.
14. We carefully considered the arguments.
15. Section 6 notice/order is made post enquiry albeit
summary. As regards the statutory appeal provision, i.e., Section 10,
the same reads as follows:
'10. Appeal.-- An appeal shall lie--
(a) to the Collector from any decision or order passed
by a Tahsildar or Deputy Tahsildar under this Act, and
(aa) to such officer as may be specified by the State
Government in this behalf (hereinafter referred to as the
appellate authority) from any decision or order passed by an
authorised officer under this Act and different appellate
authorities may be specified for different classes of cases; and
(b) to the District Collector from any decision or order
of a Collector passed otherwise than on appeal, and
(c) to the Commissioner of Land Administration from any
decision or order of a District Collector passed otherwise than on
appeal.'
16. In the case on hand, we are concerned with Section 10(a)
as the Section notice/order has been made by R4. A careful reading of
Section 10 makes it clear that the District Collector will hear an appeal
from any decision or order passed by a Tahsildar under the Act. We
deem it appropriate to extract and reproduce Section 10-B captioned
'Stay pending decision in appeal or revision' which reads as follows:
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'10-B. Stay pending decision in appeal or
revision.-- Pending the disposal of any appeal or application or
proceedings for revision under this Act, the Collector, the
District Collector (the appellate authority), the Commissioner of
Land Administration or the State Government, as the case may
be, may, by order, and subject to such conditions as may be
specified therein, stay the execution of the decision or order
appealed against or sought to be revised.'
17. A careful perusal of Section 10-B makes it clear that R1
(Appellate Authority) is vested with the power to stay the execution of
the decision or order (in this case, Section 6 notice/order dated
02.01.2025 made by R4), pending disposal of appeal and that can be
subjected to conditions specified therein. We are unable to persuade
ourselves to accept the argument of the learned counsel for writ
petitioner that Appellate Authority cannot take cognizance of the
exchange plea that is pending and say that execution of Section 6
notice/order will stand stayed until CLA takes a call on the exchange
plea. There is no material, legal or otherwise, to demonstrate that the
Appellate Authority lacks the power to make such an interim order.
This view taken by this Court is buttressed by the expression 'subject
to such conditions as may be specified therein' occurring in Section 10-
B. We hasten to add that we are not suggesting that the District
Collector should make such a stay order, if approached. We are only
making the legal position clear that the width and amplitude of Section
10-B as can be discerned from plain language of the statute does not
denude the District Collector (Appellate Authority) of such powers, as
argued by learned counsel for writ petitioner. Any order passed under
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10-B can also be assailed and subjected to judicial review and there is
no impediment on the same.
18. Reverting to explanation of the term 'appeal', we went into
P.Ramanatha Aiyar's 'The Law Lexicon, Fifth Edition' and we find that
an appeal, in legal parlance, is renewal of a cause from an inferior
Tribunal or forum to a superior Tribunal or forum, in order to test and
scrutinise the correctness of the impugned decision. The most
appropriate explanation of the term 'appeal' as in P. Ramanatha Aiyar's
'The Law Lexicon, Fifth Edition', reads as follows:
'An appeal in legal parlance is held to mean the renewal of
a cause from an inferior or subordinate to a superior tribunal or
forum in order to test and scrutinise the correctness of the
impugned decision. It amounts in essence and pith to a
complaint to a higher forum that the decision of the subordinate
tribunal is erroneous and therefore liable to be rectified or set
right.'
19. As would be evident from Section 10-B which provides for
stay pending decision in appeal, it uses the expression 'stay the
execution ...........' In other words, it is couched in a language which
includes the expression 'stay the execution'. The expression 'stay of
execution' implies a term (qua time) during which no execution can
issue i.e., suspend enforcement of an order 'until something else
happens'. This can be discerned from explanation of the expression
'Stay of execution' in P. Ramanatha Aiyar's 'The Law Lexicon, Fifth
Edition'. Therefore, we see no reason as to why the Appellate Authority
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is denuded of the powers to say that execution of decision of R4 will be
stayed till the CLA decides the exchange plea.
20. This Court has repeatedly held that said 1905 Act is a self
contained Code. The reason inter alia is that there is a provision to
have the alleged encroacher show caused under Section 7 of said 1905
Act followed by an order (considering the cause shown). The order
under Section 6 is appealable under Section 10 (District Collector is
the appellate authority) and there is a provision for further revision to
the Government under Section 10-A (Section 10-A(3) to be precise) of
said 1905 Act. Pending appeal / revision, there is a provision for
making interim prayer vide Section 10-B of said 1905 Act. Therefore,
said 1905 Act is a self contained Code in every sense of the
expression.
21. Learned counsel for writ petitioner adverted to
aforereferred to G.O.201 Revenue and Disaster Management
Department, Land Disposal Wing, LD3 (1) Section dated 10.05.2022
and inter alia submitted that exchange is a desired option and that the
land that is being offered by writ petitioner as exchange is superior. We
refrain from dealing with this submission for three reasons and they
are:
(i) CLA will stand bound by any view we express;
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(ii) Such submissions turn heavily on facts and it
is only appropriate that the designated authority takes a
call on such submissions; and
(iii) This would be outside the remit of the
challenge to the impugned order.
22. Reverting to the statutory appeal under Section 10,
limitation for statutory appeal is 30 days from the date on which
Section 6 notice/order is served on the writ petitioner and this is vide
sub-section (1) of Section 11. Be that as it may, sub-section (4) of
Section 11 vests the Appellate Authority with powers to admit an
appeal preferred after the specified period, if it is satisfied that the
appellant had sufficient cause for preferring the appeal. These are all
in the realm of discretion of the Appellate Authority and it is for the
Appellate Authority to consider such a prayer on its own merits and in
accordance with law, if such a prayer is made. We write this as the 30
days period has not elapsed as of today, is what we are informed. We
make it clear that if a statutory appeal is filed, with or without
condonation of delay (COD) plea, the same and the stay petition
thereat under Section 10-B, shall be considered on its own merits and
in accordance with law.
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23. In the light of the narrative, discussion and dispositive
reasoning set out supra, we are of the considered view that
Alternative Remedy is not inefficacious and we also hold that the width
and amplitude of Section 10-B is statutorily wide and legally loud
enough to include interim orders of the nature alluded to supra and
Appellate Authority is not denuded of powers to stay impugned orders.
As already alluded to supra, Alternative Remedy rule is not an absolute
rule but it is only a rule of discretion. It is a self imposed restraint qua
this Court. This Court having repeatedly taken a view that said 1905
Act is a self contained Code, is clear that this is a fit case to relegate
the writ petitioner of approaching Appellate Authority rather than
entertain the WP on the teeth of Alternative Remedy.
24. Ergo, the sequitur is, certiorari limb of the prayer fails. This
means that the prayer for issue of writ of certiorari is not acceded to
and the certiorari limb is dismissed. As regards the mandamus limb,
we have already observed in this order that exchange plea will be
processed on its own merits and in accordance with law and therefore,
we are of the view that this observation addresses the mandamus limb
of the prayer.
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Captioned main WP is disposed of in the aforesaid manner.
Consequently, captioned writ miscellaneous petitions thereat are
disposed of as closed. There shall be no order as to costs.
(M.S., J.) (K.G.T., J.)
06.02.2025
Index : Yes/No
Neutral citation : Yes
cad
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M. SUNDAR, J.
and
K. GOVINDARAJAN THILAKAVADI, J.
cad
To
1. The District Collector
Tiruppur District
Tiruppur
Tamil Nadu
2. The District Revenue Officer
Tiruppur District
Tiruppur – Tamil Nadu
3. The Revenue Divisional Officer
Udumalpet Revenue Division
Tiruppur District
Tiruppur – Tamil Nadu
4. The Tahsildar
Udumalpet Taluk
Tiruppur District
Tiruppur – Tamil Nadu
5. The Land Revenue Inspector
Kurichikkottai Firka
Udumalpet Taluk
Tiruppur District
Tiruppur – Tamil Nadu
06.02.2025
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