Dismissed

R.Mahalingam, v. The Sub Collector

Madras HC24 Jul 2017WP/2803/2015

Case brief

AI extract

What is this about?

The Court dismissed the writ petition challenging the rejection of a community certificate application. Noting the existence of an appellate remedy under a 2016 Government Order, the Court directed the petitioner to prefer an appeal to the District Collector instead of immediate writ intervention.

What did the court decide?

The petitioner was directed to file an appeal before the District Collector, Salem, within two weeks with liberty to lead evidence.

R.Mahalingam, Vs The Sub Collector — Pension and Retirement Benefits | Madras HC (2017)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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Dated:24.07.2017

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Coram

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THE HONOURABLE Mr. JUSTICE M.VENUGOPAL

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AND

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THE HONOURABLE Mr. JUSTICE P.D.AUDIKESAVALU

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W.P.No.2803 of 2015 and

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M.P. No.1 of 2015

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R.Mahalingam .. Petitioner Vs. The Sub Collector, Mettur, Salem District ..Respondent

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Prayer: Writ Petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorarified Mandamus in calling for the records of the Proceedings of the Respondent in its Na.Ka.No.550-2012(D) dated 25.07.2014 and quash the same and consequently direct the respondent to give community certificates to the Writ Petitioner's daughters, viz., R.M.Swathi and Nethra Reddy to the effect that they belong to Konda Reddy Community.

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For Petitioner : Mr.V.Vijay Shankar

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For Respondent : Mr.K.Venkataramani

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Additional Advocate General

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for Mr.M. Elumalai Government Advocate

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O R D E R [Order of the Court was made by M.VENUGOPAL, J.]

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Heard both sides.

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The Petitioner has filed the present Writ Petition praying for passing of an order by this Court in calling for the records of the Respondent / the Sub Collector, Mettur, Salem District in Proceedings No.Na.Ka.No.550-2012(D) dated

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25.07.2014 and quash the same. Further, the Petitioner had sought for passing of an Order by this Court in directing the Respondent to issue Community Certificate for him and his children, viz.,R.M.Swathi and Nethra Reddy to the effect that they belong to 'Konda Reddy Community' (Scheduled Tribe).

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At the out set, it is to be pointed out that the Petitioner belongs to 'Konda Reddy Community' and he has been described as such in his school records. In all the educational records, the Petitioner was described as he belongs to the said community. Apart from the above, number of Petitioner's close relatives have been issued with Community Certificates showing them as belonging to the 'Konda Reddy Community'. Thus, there is abundant evidence to show that the Petitioner and his Family belong to the Konda Reddy Community (Scheduled Tribe). Further, the Petitioner had reportedly made an Application for issuance of Community Certificate for his children as early as on 27.01.2012 to the RDO. Since the application was pending and not disposed of for a long time, the Petitioner approached this Court by filing W.P.No.7619 of 2012. By a final order dated 27.03.2012, this Court disposed of the Writ Petition by directing the RDO to consider the application in accordance with Law. However, the RDO rejected the request of the Petitioner vide order dated 13.09.2012. Challenging the same, the Petitioner has filed another Writ Petition in W.P.No.5128 of 2013. This Court, by an order dated 04.03.2014, set aside the Impugned Order of the RDO dated 13.09.2012 and directed the Respondent to reconsider the issue afresh.

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In the said circumstance, the Petitioner had appeared inperson along with the necessary documents before the Respondent for issuance of Community Certificate for his Children. It comes to be known that the Respondent rejected the request of the Petitioner vide impugned order dated 25.07.2014. Therefore, as an affected person, against the order of negativing his request for issuance of Community Certificate dated 25.07.2014 by the Respondent, the Petitioner has filed the instant Writ Petition before this Court.

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At this juncture, it is pertinent for this Court to make a significant mention that in G.O.(Ms).No.235 Revenue [RA3(2)] Department dated 26.06.2015, the Government of Tamilnadu based on the orders passed by the Madurai Division Bench of this Court in W.P.(MD) No. 1355 of 2015 dated 05.02.2015 between D.Thirupathi V. The District Collector, Tirunelveli District, Tirunelveli and another, had constituted an Appellate Authority for an 'Appeal' remedy in regard to the issuance of Community Certificate, which runs as under:

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Sl .	Community	Issuing Authority	Appellate Authority	Redressal of Grievances
1	Backward Classes / Most Backward Classes/ Denotified Communities	Zonal Deputy Tahsildar	Tahsildar	District Collector
2	Scheduled Castes	Tahsildar	Revenue Divisional Officer	District Collector
3	Scheduled Tribes	Revenue Divisional Officer	District Collector	District Collector & Chairman District Level Vigilance Committee

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It also comes to light that the Government of Tamilnadu had passed G.O.(Ms).No.147 Revenue [RA-3(2)] Department dated 17.03.2016 (As regards redressal of grievances of Scheduled Tribes) whereby and whereunder after careful consideration and examining the subject matter in issue had issued an amendment to G.O.(Ms).No.235 Revenue [RA3(2)] Department dated 26.06.2015 to the Paragraph No.4 in the Tabular Column for Sl.No.3 and the entries relating thereto by substituting the same as under:

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Sl Community Issuing Appellate Redressal
. Authority Authority of
Grievances
“3 Scheduled Tribes Revenue District State Level
Divisional Collector Scrutiny
Officer. Committee”

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It is to be noted that the object of Article 226 of the Constitution of India is to provide a quick and an inexpensive remedy to the aggrieved parties. Therefore, it would be incorrect to incorporate all the proceedings of a suit into a proceeding under Article 226 of the Constitution of India as per decision of the Hon'ble Supreme Court in Babubhai V. Nandal AIR 1974 SC 2105.

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It is to be borne in mind that as 'Writ Proceeding' is summary in nature, 'Disputed questions' of fact cannot be decided in Writ Jurisdiction as per decision of the Hon'ble Supreme Court in Sumedha Nagpal V. State of Delhi (2000) 9 SCC 745. Undoubtedly, the power conferred upon the Hon'ble Supreme Court

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and the High Court under Articles 32 and 226 of the Constitution of India is 'plenary power' and such power is not at all an incomplete power, nor fettered by any legal restraint. Although the power of Judicial Review is at the hands of High Court under Article 226 of the Constitution, notwithstanding the fact that the Constitution of India does not impose any limitation upon the aforesaid power, the Courts themselves have evolved certain self imposed limitations or restraints in regard to the exercise of this extraordinary and unlimited discretionary power, as a matter of prudence and policy. In short, in Law, the whole field of Article 226 of the Constitution is purely a discretionary one.

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Coming to the aspect of an 'Executive Power' of the State, it is to be pointed out that the same is coextensive with that of the State Legislature. The power of the State Government to issue executive instructions is confined to filling up of the gaps or covering the area which otherwise is not covered by the existing Rules, as per decision Union of India V. Central Electrical & Mechanical Engineering Service (CE & MES) Group A (Direct Recruits) Association reported in CPWD 2008 1 SCC at Page 354. It cannot be forgotten that the executive instructions which are given by the State exercising its power under Article 162 of the Constitution of India cannot circumvent a statutory provision. In fact, Article 162 of the Constitution does not enjoin the State Government to pass executive Orders which are contrary to Law, which was already made on the subject, by the State, in as much as it would amount to rewriting Art. 162 of the Constitution of India.

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10.That apart, in order that the Executive instructions have the force of statutory Rules, it is to be exhibited that they were issued either under the authority showered under the State Government by some statute or under some provision of the Constitution, as per decision of Hon'ble Supreme Court G.J.Fernandez V. State of Mysore reported in AIR 1967 SC Page 1753.

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In short, Article 162 of the Constitution requires that where the State has power to make Laws, it can issue executive instruction as per decision Kamala Godera V. State of Rajasthan reported in AIR 2000 Rajasthan 130. Although the State Legislature has the power to make a Law relating to a subject, the executive action by the appropriate Government is not rendered invalid just because there is no Legislation to support such action, as per decision of Hon'ble Supreme Court Naraindas V. State of Madhya Pradesh in AIR 1974 SC Page 1232.

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At this juncture, this Court aptly recalls and recollects the decision of Hon'ble Supreme Court in Madhukar

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Sadbha Shivarkar V. State of Maharashtra and Others (2015) 6 Supreme Court Cases 557 at Special Page Nos.559 and 560 wherein it is held as follows:

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“In the backdrop of the Judgment passed in the criminal cases which have attained finality before the Supreme Court, the State Government, after examining the representations given by the landowners in these cases with reference to the relevant land records of the landholders of the villages, has rightly exercised its statutory power by appointing the Sub-Divisional Officer as an enquiry officer at the first instance and later on Deputy Commissioner of Pune was appointed to enquire into the matter which is in the large public interest.

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(Para 26)

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The order is passed by the State Government only to enquire into the landholding records with a view to find out as to whether original land revenue records have been destroyed and fabricated to substantiate their unjustifiable claim by paying fraud upon the Tahsildar and appellate authorities to obtain the orders unlawfully in their favour by showing that there is no surplus land with the Company and its shareholders as the valid sub-leases are made and they are accepted by them in the proceedings under Section 21 of the Act, on the basis of the alleged false declarations filed by the shareholders and sub-lessees under Section 6 of the Act. The allegation of fraud in relation to getting the landholdings of the villages by the declarants on the alleged ground of destroying original revenue records and fabricating revenue records to show that there are 384 sub-leases of the land involved in the proceedings to retain the surplus land illegally as alleged, to the extent of more than 3000 acres of land and the orders are obtained unlawfully by the declarants in the land ceiling limits will be nullity in the eye of the law through such orders have attained finality, it if is found in the enquiry by the enquiry officer that they are tainted with fraud, the same can be interfered with by the State Government and its officers to pass appropriate orders. Fraud unravels everything and therefore, the question of limitation under the provisions to exercise power by the State Government does not arise at all. The land owners are also aggrieved parties to agitate their rights to get the orders which are obtained by the declarants as they are vitiated in law on account of nullity is the

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tenable submission and the same is well founded and acceptable to justify the impugned judgment and order of the High Court. (Para 27)

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The legal submissions made on behalf of the appellants that the State Government has no power either under Section 45(2) or under Section 14(4) of the 1961to appoint an enqujiry officer to enquire into the landholdings of the villages referred to therein are untenable contentions of the appellants which have been rightly rebutted by urging an alternative legal plea that the power exercised by the State Government to pass the orders impugned in the writ petitions is traceable to its executive power under Article 162 of the Constitution of India. This is the most tenable submission, having regard to the magnitude of the alleged fraud in relation to the vast extent of the landholding obtained by the declarants by giving false declarations with a view to come out from the clutches of the land ceiling provisions of the Act, which is the prima facie view taken by the State Government and the same cannot be found fault with by the Supreme Court in these proceedings at this stage.

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(Paras 28 and 32)

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Also in the aforesaid decision at Paragraph No.32 at Page No.572 among other things, it is observed as follows:

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“.....In our considered view, the orders impugned in the writ petitions which are affirmed by the High Court, are perfectly legal and valid and therefore, the same do not warrant interference by this Court in exercise of power of this Court under Article 136 of the Constitution, but on the other hand, the aforesaid orders of the State Government can also be traceable to execute power of the State Government under Article 162 of the Constitution of India having regard to the magnitude of the alleged fraud in relation to the vast extent of the landholding obtained by the declarants by giving false declarations with a view to come out from the clutches of the land ceiling provisions of the Act, which is the prima facie view taken by the State Government and the same cannot be found fault with by this Court in these proceedings at this stage....”

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Moreover, this Court aptly points out the decision of the Hon'ble Supreme Court in Kumari Madhuri Patil and another V. Additional Commissioner, Tribal Development and others, (1994) 6

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Supreme Court Cases 241 at special page 257, wherein at Paragraph No.15, it is held as follows:

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“15. The question then is whether the approach adopted by the High Court in not elaborately considering the case is vitiated by an error of law. High Court is not a court of appeal to appreciate the evidence. The Committee which is empowered to evaluate the evidence placed before it when records a finding of fact, it ought to prevail unless found vitiated by judicial review of any High Court subject to limitations of interference with findings of fact. The Committee when considers all the material facts and records a finding, though another view, as a court of appeal may be possible, it is not a ground to reverse the findings. The court has to see whether the Committee considered all the relevant material placed before it or has not applied its mind to relevant facts which have led the Committee ultimately record the finding. Each case must be considered in the backdrop of its own facts.”

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Also, in the aforesaid decision, at paragraph 16, it is, among other things, observed as under:

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“16. ... The courts have constitutional duty and responsibility, in exercise of the power of its judicial review, to see that constitutional goals set down in the Preamble, the Fundamental Rights and the Directive Principles of the Constitution, are achieved.”

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When a Government Order or a Statute provides for an adequate, effective, viable and efficacious alternative remedy and if such an alternative remedy is not cumbersome, then, in that event, it is open to the Petitioner to avail such remedy / machinery constituted under the said Government Order or under the Act, so that, the purport and intent of the Government in providing a certain forum is not whittled down in any manner.

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Indeed, the remedy of preferring an appeal enjoined in the amendment G.O.(Ms).No.147 Revenue [RA-3(2)] Department dated 17.03.2016 was brought by the Government of Tamilnadu based on the observations of the Hon'ble Division Bench of this Court in W.P.(MD) No.1355 of 2015 dated 05.02.2015 to the effect that for all the caste certificate cases which naturally require a factual adjudication, at least one appeal remedy, for 'Scheduled

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Caste', 'Scheduled Tribes' and 'Backward class' should be provided, which may be in the form of scrutiny by the District Level Vigilance Committee etc. That apart, it is to be pertinently pointed out that in W.P.(MD)No.6340 of 2015 [between R.Raja V. R.D.O., Madurai], the Hon'ble Division Bench of this Court on 30.06.2015 had permitted the Petitioner (based on the Government Order) to prefer an 'Appeal' before the District Collector, Madurai within 10 days from the date of receipt of copy of this Order etc. It is to be pointed out that a 'Court of Law' has an inherent power to grant a reasonable specified time to a person for performing an act (of course, in the absence of any procedural law being thereto) with a view to secure the ends of justice or to prevent an abuse of process of Court. However, it is to be borne in mind that while determining the time limit, a Court of Law with utmost care and circumspection is to adopt a prudent course of action by exercising its thinking judicial discretion and in short, it is not to act in an Arbitrary, Capricious, Cavalier and Whimsical manner.

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In short, the action of the Government of Tamilnadu in introducing an 'Appeal' remedy before the District Collector as per G.O.(Ms).No.147 Revenue [RA-3(2)] Department dated 17.03.2016 (by way of amendment to G.O.(Ms).No.235 Revenue [RA3 (2)] Department dated 26.06.2015) does not suffer from any vice or material irregularities and patent illegalities in the eye of Law. Moreover, two Orders of the State Government are in the 'Interest of Public at Large', in the considered opinion of this Court.

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Be that as it may, in view of the fact that the present Writ Petition viz., W.P.No.15915 of 2017 is filed by the Petitioner assailing the Impugned Order of the Respondent / the Revenue Divisional Officer, Sankagiri, Salem District dated 15.04.2016 rejecting his request for issuance of Community Certificate to his wards and also this Court taking note of the tenor and spirit of the G.O.(Ms).No.235 Revenue [RA3(2)] Department dated 26.06.2015 and also looking into the contents of G.O.(Ms).No.147 Revenue [RA-3(2)] Department dated 17.03.2016, is of the considered view that the amended G.O. (Ms).No.147 Revenue [RA-3(2)] Department dated 17.03.2016 issued by the Secretary to Government of Tamilnadu provides for an 'Appeal' remedy to the District Collector (as an Appellate Authority) and thereafter, to the State Level Scrutiny Committee (For Redressal of Grievances) and therefore, in all Fairness, Equity and Fair play this Court, directs the Petitioner to prefer an Appeal before the District Collector, Salem as against the impugned order of the Respondent dated 15.04.2016 within a period of two weeks from the date of receipt of a copy of this

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Order. Liberty is granted to the Petitioner to raise all factual and legal pleas by enclosing necessary documents to support his case before the Appellate Authority / District Collector, Salem.

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In such event of the Petitioner preferring an Appeal, (of course, well within the time adumbrated by this Court) it cannot be gainsaid that the Appellate Authority, viz., District Collector, Salem is to provide an adequate opportunity of hearing to the Petitioner by adhering to the 'Principles of Natural Justice' in true letter and spirit.

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19.That apart, in case, the Petitioner seeks time for filing of additional documents or to lead oral / documentary evidence, then, in that event, the Appellate Authority, viz., District Collector, Salem shall provide enough opportunity to the Petitioner by keeping in mind the 'Principles of Natural Justice'. The District Collector, Salem / Appellate Authority, is directed to pass necessary orders on the 'Appeal', as expeditiously as possible, in an Unbiased, Free, Just, Fair, impartial and dispassionate manner of course, in the manner known to Law and in accordance with Law, in any event, not later than six weeks thereafter. Soon after disposing of the Appeal within the time specified by this Court, the District Collector, Salem (Appellate Authority) is also directed to send a compliance report to the Registrar Judicial of this Court in regard to the orders so passed.

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Before parting with this Case, this Court makes a relevant mention that it is high time for the Government of Tamilnadu to give an anxious consideration in respect of enacting a complete and comprehensive Law in regard to issuance and verification of Community Certificates of Scheduled Caste and Scheduled Tribe and other Backward Classes quite in tune with the guidelines / directions issued in the Hon'ble Supreme Court decision Kumari Madhuri Patil & Another V. Additional Commissioner Tribal Development, Thane & Others reported in AIR 1995 SC 94 and the modifications made in the later Judgments of the Hon'ble Supreme Court of India on the subject, which governs the field. To put it succinctly, the neighbouring states like Kerala, Andhrapradesh and Maharashtra had already enacted necessary legislations for issuance and verifications of the Community Certificates of Scheduled Caste and Scheduled Tribe and other Backward Classes and the same are in live force. This Court fervently opines that if the Government of Tamilnadu enacts a codified Law pertaining to the procedure for issuance and verification of Community Certificate of Scheduled Caste and Scheduled Tribe and Other Backward Classes in the State, then, there is ample scope for wiping out / erasing out 'Bogus / Fictitious Community Certificates' obtained by the concerned

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persons, to secure the benefits in an unlawful manner.

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With the aforesaid observations the present Writ Petition stands disposed of. Consequently, connected Miscellaneous Petition is closed. No costs.

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Sd/-

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Assistant Registrar(CS IV)

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//True Copy//

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Sub Assistant Registrar
ssd
To
1. The Sub Collector,
Mettur, Salem District
2. The District Collector,Salem (Appellate Authority)
3. The Chief Secretary,
Government of Tamilnadu,
Fort St. George, Secretariat, Chennai -9
4. The Registrar Judicial
(For Favour of information and
necessary follow up action), High Court, Madras
+1cc to Mr.V.Vijay Sankar, Advocate, S.R.No.52450
+1cc to the Government Pleader, S.R.No.52766

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W.P.No.2803 of 2015 and M.P. No.1 of 2015

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GN(22/08/2017)

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R.Mahalingam, v. The Sub Collector

Case brief

What is this about?

What did the court decide?

R.Mahalingam, v. The Sub Collector

Case brief

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What did the court decide?

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