Madras High Court
Rathinam vs The State Of Tamil Nadu on 11 January, 2021
Author: N.Seshasayee
Bench: N.Seshasayee
W.P.No.18754 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.01.2021
CORAM : JUSTICE N.SESHASAYEE
W.P.No.18754 of 2020
1.Rathinam
2.Dhanam
3.Shantha
4.Bhanumathi ... Petitioners
Vs
1.The State of Tamil Nadu
Rep by its Secretary to Government
Adi Dravidar Welfare
Fort St.George, Secretariat
Chennai – 600 009.
2.The District Collector
Dharmapuri District
Dharmapuri.
3.The Special Tahsildhar / Land Acquisition Officer
Adi Dravidar Welfare
Harur, Dharmapuri District. ... Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of
India praying to issue a Writ of Mandamus directing the respondents to
restore the patta and other connected revenue records to the petitioners
for their property in S.No.28/7, measuring 4.62 acres situate at
Veerappanaickenpatti Revenue Village, Harur Taluk, Dharmapuri
District.
https://www.mhc.tn.gov.in/judis/
1/18
W.P.No.18754 of 2020
For Petitioners : Mr.J.Bharathi Raja
For Respondents : Mr.S.N.Parthasarathi
Government Advocate
ORDER
The case at hand may be the result of what this Court may term as inadequate bureaucratic sensitivity to citizen’s right to property. This preludial statement, though may leave certain indications on what might follow, yet the need for the statement can be appreciated only when the factual context which necessitated them unfolds.
Facts:
2.1 The petitioners herein allege that they owned a block of land measuring 4.62 acres in S.No.28/7 of Veerappanaickanpatti Village, Harur Taluk, Dharmapuri District. This property was notified for acquisition under the Land Acquisition Act, 1894. Necessary declaration under Sec.8 of the Act came to be notified on 14.10.1987, followed by G.O.No.89 of the concerned Department dated 06.09.1988.
2.2 This was challenged by the petitioners in W.P.No.12411 of 1988, and it came to be allowed on 21.08.2000. In the meantime, the patta in the https://www.mhc.tn.gov.in/judis/ 2/18 W.P.No.18754 of 2020 name of the petitioners was cancelled, and it was transferred in the name of the Government.
2.3 However, since the disposal of the said writ petition, which is a little over 21 years from now, the patta has not been re-mutated in the name of the petitioners. The petitioners complain that this has paved the way for certain members of certain political parties as well as others to encroach into their property. Hence, the petitioners approached this Court in this writ petition.
3. Heard Mr.J.Bharathi Raja, learned counsel for the petitioners and Mr.S.N.Parthasarathy, learned Government Advocate for the respondents The learned Government Advocate made a statement on instructions that the patta would be re-mutated in the name of the petitioners without any delay.
4. This is not the first instance this Court is facing the state of affairs, such as the one, now presented in this case. Therefore, this Court required the District Collector, Dharmapuri District to log in.
https://www.mhc.tn.gov.in/judis/ 3/18 W.P.No.18754 of 2020
5. A decision in a case may operate like a mathematical formula, if the principle of law laid down in an earlier litigation is applicable to identical facts or near-identical facts which permits such application.
While the facts of this case may be termed as nearly identical to the facts in Ravindran Vs The District Collector, Vellore District [W.P.19428 of 2020] which this Court disposed on 06-01-2021, yet this Court intends to rely on its Order in Ravindran case, not just for the identical nature of the facts, but for the identical nature of the bureaucratic attitude put on display. This Court therefore, considers it appropriate to extract the following passage from the order in Ravindran’s case:
“6. No Court likes to lecture the bureaucracy on administration; it is not part of its core judicial activity. However, when the direct fallout of administrative misfeasance and malfeasance or non-feasance is felt by the Court, it then becomes necessary for the Court to sensitize the bureaucracy on litigation-avoidance. In its order in a batch of cases in Thirumagan Vs The Superintendent of Police [(2020) 4 MLJ (Crl) 133], this Court underscored the need for avoiding a litigation that can be, and has to be avoided. It observed:
“1.2 Litigation-avoidance is critical for eliminating the clogs that chokes the Court system, and its thematic significance and contemporary relevance to our legal system cannot be ignored. One of the contributory factors that diminishes the https://www.mhc.tn.gov.in/judis/ 4/18 W.P.No.18754 of 2020 efficacy of the Courts to render justice in time is attributable to diverting the scarce judicial time to address identical or similar causes repeatedly. Does it not reflect that Courts are used with an inadequate sense of responsibility?
1.3 Any discourse on speedy justice invariably focuses on the exit points to the legal system, on the disposal of cases, and there has been inadequate discussion on the nature of cases that enter the system at its entry points. Here lies the scope for litigation-avoidance. The importance of avoiding a litigation that can be avoided cannot be over emphasized since it clogs and obstructs the free outflow of cases, and contributes to what has come to described as 'docket explosion'. Nothing explodes where there is a responsibility to avoid it...” In K. Gajendran Vs Land Acquisition Officer cum the District Collector, Kancheepuram [2018 (2) CWC 593], this Court observed:
“4.3 Walk a short distance additionally, it becomes administration for the people. Administrative action therefore, can no longer remain an aspect of administrative obligations and duties dictated by legal semantics and its interpretation, but must be understood as part of a broader facet of administrative care, with little humanism and understanding of the people. Bend not the law but blend it with concern for the citizenry. Hence, a conceptual, people-oriented transition, if not radicalisation, especially of those in the lower rung of https://www.mhc.tn.gov.in/judis/ 5/18 W.P.No.18754 of 2020 the bureaucracy is required, and it can make the difference.
4.4 Its immediate and beneficial ramification will be reflected in the ability of the Court to conserve judicial time for better utilisation in cases that cry for attention. Here is a lower rung authority who stationed himself in indecisive confusion on a trivia for eight years till this litigation broke the inertia. This is symptomatic of a crisis in attitude that appears to have infected many, if the several instances where the Courts witness its reflection are a parameter. In the final analysis, this augurs well only for the docket-augmentation in Courts, but not for the quality of service they are expected to provide.
Often it is said that law does not take notice of trivia, yet a sizable number of cases that throng this Court spring from trivia. In each of them the authority concerned has the first opportunity to do, and to do it correctly, that which this Court ultimately directs them to do. Where lies his pride?” 8.1 Reverting to the aspect on remedying the plight of the petitioner of this case, this Court is conscious of the limits of its jurisdiction, and the Constitutional compulsions on it to respect the jurisdictional demarcation of the Legislature, the Executive and the Judiciary. There may be a school of thought that may believe in a jurisdiction in the Constitutional court to step in to direct the Executive on what it needs to do. This Court believes that such exercise is permissible in our Constitutional scheme only for correcting a wrong, and for filling a legislative vacuum https://www.mhc.tn.gov.in/judis/ 6/18 W.P.No.18754 of 2020 for advancing any immediate Constitutional objectives and aspirations. However, where any act of the Executive is done under a statute, then the jurisdiction of the Court stops where its role of reviewing the administrative action ends. To over step this line would be a transgression on the Executive domain, and this Court would refrain from crossing the lakshman rekha. The Court may have the power of a giant, but it has to choose its moment to act like a giant.
8.2 Accordingly, if this Court cannot instruct the Executive for developing and implementing any housing project for the socially and economically weaker section of the society generally in the first place, then it cannot assume that it has powers to direct the same Executive to acquire it afresh and direct the revival of a project specifically, especially when the same Court has held that the acquisition once attempted was bristled with illegality. There perhaps is one exception to this rule, where, notwithstanding the illegality in the acquisition proceedings, if the land is fully utilized, and ordering restoration of the status quo ante as it was prior to the acquisition is an unrealistic option, then the Court does direct fresh acquisition of the same land. But, even this is resorted to not for the benefit of the Executive, but for the benefit of the land owners. Where however, the status quo ante can be restored then a land owner has to be given back his property with full right of ownership. The Executive is reminded that there must be, and at all times https://www.mhc.tn.gov.in/judis/ 7/18 W.P.No.18754 of 2020 there ought to be fairness in administration. If not, it may mean that this Court does not respect its own orders, which would then mean that this Court has lent a tacit assent to the Executive- unfairness in the latter’s dealings with the affairs of the citizen.
8.3 There is another perspective to it. Article 261 of the Constitution mandates that the Executive shall give full faith and credit to all judicial acts. See: Scheduled Castes and Scheduled Tribes Officers Welfare Council Vs State of U.P. and another [(1997) 1 SCC 701, S. Palaniswamy v Commissioner, H.R & C.E, [(2001) 2 LW 783]. Therefore, in all fairness, as there was no fresh acquisition, the Executive ought to have re-mutated the name of the petitioner after the order in W.P.No.4168 of 1997 as per the doctrine of full faith and credit to the order passed in a judicial proceeding.
8.4 Whichever be the angle of approach, the course available to this Court is to direct the 2nd respondent to re-mutate the patta in the name of the petitioner for the land in question and the first respondent is directed to ensure that the second respondent complied with the direction.
9. It does not stop here. The Executive, in all probability may now comply with a direction to re-mutate the record of rights, but is it not true that the petitioner has been a silent victim of the Executive insensitivity? To stop with a direction such as the one https://www.mhc.tn.gov.in/judis/ 8/18 W.P.No.18754 of 2020 indicated may only aid in providing an exit route to the Executive to escape from accounting for its default. Should this Court with the Constitutional obligations on it, turn a Nelson’s eye to such administrative defaults?
10. It is indisputable that the possession of the land in question is with the petitioner, but its profitable enjoyment is largely curtailed since his name has not been re-mutated in the revenue records. The State has no authority to interfere with the right to property of the citizen except in accordance with law. Here, the State machinery is caught on the wrong foot when it failed to re-mutate the land in question in the petitioner’s name in the revenue records. A record of right such as the patta is indispensable for exercising absolute right of ownership over the property, and when patta is not re-mutated despite the petitioner requiring it for ten years now, it is an obvious instance of the Executive interfering with the right to property of the citizen.
11. The bureaucracy is told that right to property has a close nexus to right to life under Art.21 of the Constitution, since the former, to a substantial extent, defines the quality of life a citizen has secured for himself under the Constitution. In Delhi Airtech Services Private Limited v State of U.P [2011 9 SCC 354] the Supreme Court termed the right to property as a human right under Article 21 and alluded to it as the seed bed for securing https://www.mhc.tn.gov.in/judis/ 9/18 W.P.No.18754 of 2020 other human freedoms such as liberty. The Supreme Court observed:
“30. It is accepted in every jurisprudence and by different political thinkers that some amount of property right is an indispensable safeguard against tyranny and economic oppression of the Government. Jefferson was of the view that liberty cannot long subsist without the support of property. “Property must be secured, else liberty cannot subsist” was the opinion of John Adams. Indeed the view that property itself is the seed-bed which must be conserved if other constitutional values are to flourish, is the consensus among political thinkers and jurists.” The growth of Constitutional jurisprudence in this country has been chiefly characterized by the constant search of the Constitutional Courts to discover the expandability of the concept of right to life under Article 21. Its objective is to include as many, exclude none, and at all times to check the Executive temptations to tread upon it, even accidentally, except in accordance with the procedure established by law. The multitude of rights that go to constitute right to life, some time termed as penumbral rights, are comparable to the advaita philosophy in that each of such fractional right itself possesses the characteristics of the whole. Soham. Hence, an understanding of the right to property only in economic terms may not be a right idea, nor will be an understanding that its infringement should produce a tangible loss. An infringement of https://www.mhc.tn.gov.in/judis/ 10/18 W.P.No.18754 of 2020 right to property will therefore enjoy an expanded meaning proportionate to the expandability of the right to life under the Constitution. It will now accommodate a meaning which includes the quality of life even in terms of the happiness- quotient which a citizen is entitled to, and the State machinery shall stay away from affecting it, unless it has a warrant in law to interfere. Failure to re-mutate the land in the name of the petitioner may not affect his title, but definitely restrict his ability to enjoy it in the manner of his choice. It could therefore, be derived that when one is denied of his right to exercise all that emanates from the right of ownership, which includes right to alienate or encumber by a method not supported by law, the anxiety such denial generates in the hearts of men will offend the quality of life under Article 21, and impinge upon the cherished ideals of human dignity zealously guarded by it.
12.1 In Nilabati Behera v. State of Orissa, [(1993) 2 SCC 746], the Hon’ble Supreme Court has held:
“30. ….we have now to examine whether to seek the right of redressal under Article 32 of the Constitution, which is without prejudice to any other action with respect to the same matter which may be lawfully available, extends merely to a declaration that there has been contravention and infringement of the guaranteed fundamental rights and rest content at that by relegating the party to seek relief through civil and criminal proceedings or can it go further https://www.mhc.tn.gov.in/judis/ 11/18 W.P.No.18754 of 2020 and grant redress also by the only practicable form of redress — by awarding monetary damages for the infraction of the right to life.
33. The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the courts too much as protector and guarantor of the indefeasible rights of the citizens. The courts have the obligation to satisfy the social aspirations of the citizens because the courts and the law are for the people and expected to respond to their aspirations.
34. …… The purpose of public law is not only to civilise public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the court moulds the relief by granting “compensation” in proceedings under Article 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making “monetary amends” under the public law for the wrong done due to breach of public duty, of not protecting the fundamental https://www.mhc.tn.gov.in/judis/ 12/18 W.P.No.18754 of 2020 rights of the citizen. The compensation is in the nature of “exemplary damages” awarded against the wrongdoer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penal law.
35. This Court and the High Courts, being the protectors of the civil liberties of the citizen, have not only the power and jurisdiction but also an obligation to grant relief in exercise of its jurisdiction under Articles 32 and 226 of the Constitution to the victim or the heir of the victim whose fundamental rights under Article 21 of the Constitution of India are established to have been flagrantly infringed by calling upon the State to repair the damage done by its officers to the fundamental rights of the citizen, notwithstanding the right of the citizen to the remedy by way of a civil suit or criminal proceedings. The State, of course has the right to be indemnified by and take such action as may be available to it against the wrongdoer in accordance with law — through appropriate proceedings. Of course, relief in exercise of the power under Article 32 or 226 would be granted only once it is established that there has been an infringement of the fundamental rights of the citizen and no other form of appropriate redressal by the court in the facts and circumstances of the case, is possible. The https://www.mhc.tn.gov.in/judis/ 13/18 W.P.No.18754 of 2020 decisions of this Court in the line of cases starting with Rudul Sah v State of Bihar[(1983) 4 SCC 141 : 1983 SCC (Cri) 798 : (1983) 3 SCR 508] granted monetary relief to the victims for deprivation of their fundamental rights in proceedings through petitions filed under Article 32 or 226 of the Constitution of India, notwithstanding the rights available under the civil law to the aggrieved party where the courts found that grant of such relief was warranted. It is a sound policy to punish the wrongdoer and it is in that spirit that the courts have moulded the relief by granting compensation to the victims in exercise of their writ jurisdiction. In doing so the courts take into account not only the interest of the applicant and the respondent but also the interests of the public as a whole with a view to ensure that public bodies or officials do not act unlawfully and do perform their public duties properly particularly where the fundamental right of a citizen under Article 21 is concerned….” This was followed by the Hon’ble Supreme Court in United Air Travel Services v. Union of India, [(2018) 8 SCC 141], where it held that “..it is a sound policy to punish the wrongdoer and it is in that spirit that the courts have moulded the relief by granting compensation in exercise of writ jurisdiction. The objective is to ensure that public bodies or officials do not act unlawfully. Since the issue is one of enforcement of public duties, the remedy would be available under public law https://www.mhc.tn.gov.in/judis/ 14/18 W.P.No.18754 of 2020 notwithstanding that damages are claimed in those proceedings”.
6. In the spirit of what the Supreme Court has held, this Court now directs the respondents to pay the petitioners a sum of Rs.1,00,000/- as compensation for interfering with the right to property of the petitioners for over a decade, with no lawful justification. To extract again from the order in Ravindran case, “12.3 It is not ameliorative, but palliative. When an infraction of a fundamental right is spotted on which the Executive chose to repose and allowed it to continue when it had an option to remedy, Constitutional courts will draw strength from the spirit of the Constitution to remedy the wrong. Courts shall not patronize that which the Constitution does not encourage. As was pointed out by the Supreme Court in Nilabati Behera v. State of Orissa [(1993) 2 SCC 746], this Court, under Article 226, is empowered to make monetary amends by granting suitable compensation in public law for the infraction of fundamental rights by the State and its officials. It is to inform the State and its bureaucratic machinery that when it interferes with the fundamental right of the citizen without lawful excuse, it may have to answer for it. Far from being a deterrent, where there is an institutional pride in the bureaucracy, this Court hopes that it might not like to have a recurrence.
https://www.mhc.tn.gov.in/judis/ 15/18 W.P.No.18754 of 2020 7.1 In conclusion, this Court allows the petition and directs the second respondent to mutate the Village Permanent Register in the name of the petitioners or or before 20-02-2021. For all the sufferings that the administrative machinery has inflicted on the petitioners for twenty years now, the State shall now pay the petitioners a sum of Rs.1,00,000/- in damages.
7.2 The District Collector is now required to file a report as to what mechanism that would be put in place to avert and avoid situations such as the one involved in this case.
8. Post the case for reporting compliance :
(1) On 25.02.2021, as to the filing of the report of the District Collector, Dharmapuri District.
(2) On 10.03.2021, as to the payment of cost imposed by this Court.
11.01.2021 ds Index : Yes / No Speaking Order / Non-speaking Order Note : Issue order copy on 04.02.2021 https://www.mhc.tn.gov.in/judis/ 16/18 W.P.No.18754 of 2020 To:
1.The Secretary to Government Adi Dravidar Welfare Fort St.George, Secretariat Chennai – 600 009.
2.The District Collector Dharmapuri District Dharmapuri.
3.The Special Tahsildhar / Land Acquisition Officer Adi Dravidar Welfare Harur, Dharmapuri District.
https://www.mhc.tn.gov.in/judis/ 17/18 W.P.No.18754 of 2020 N.SESHASAYEE.J., ds W.P.No.18754 of 2020 11.01.2021 https://www.mhc.tn.gov.in/judis/ 18/18