Madras High Court
Sri Ramakrishna Matriculation School vs The District Collector on 24 March, 2016
Bench: S.Manikumar, C.T. Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 24.03.2016 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR and THE HON'BLE MR.JUSTICE C.T. SELVAM W.P.(MD)No.5940 of 2016 in WMP(MD)No.5271 of 2016 Sri Ramakrishna Matriculation School, Rep. By its Correspondent, P.S.Murali Krishnan ... Petitioner Vs. 1.The District Collector, Trichy. 2.The Revenue Divisional Officer, Trichy. 3.The Tahsildar, Taluk Office, Tiruverumbur, Tiruchirapalli District. 4.The Block Development Officer, Panchayat Union Office, Thiruverumbur. 5.S.Baskar ... Respondents PRAYER: The Writ Petition is filed under Article 226 of the Constitution of India, to issue a Writ of Certiorari, calling for the records relating to the order in Na.Ka.A1/11754/2015, dated 12.01.2016 on the file of the third respondent and quash the same. !For Petitioner : Mr.N.Mohan ^For Respondents : Mr.A.K.Baskara Pandian (R1 to R4) Spl.Government Pleader :ORDER
(Order of this Court was made by S.MANIKUMAR, J.) Sri Ramakrishna Matriculation School, represented by its Correspondent P.S.Murali Krishnan, Guntur Village, Tiruverumbur Taluk, has sought for a Writ of Certiorari, to quash the proceedings in R.C.No.A1/11754/2015, dated 12.01.2016 of the Tahsildar, Tiruverumbur, Tiruchirapalli District / 3rd respondent herein, addressed to the Block Development Officer, Panchayat Union Office, Thiruverumbur, to take action for removal of encroachments.
2. Material on record discloses that one Mr.Baskar, the 6th respondent herein has filed W.P(MD)No.341 of 2014, for a Mandamus, directing respondents 1 to 4, to remove the alleged encroachments made by respondents 5 and 6 therein in Survey No.113/38, Government Poromboke Pathai, in Ayyampatti, Guntur Village, Thiruverumbur Taluk, Tiruchirapalli District, by considering his representation, dated 31.10.2013.
3. Taking note of G.O.Ms.No.540, Revenue LDG(2) Department, dated 04.12.2014, vide order dated 02.09.2015, in W.P(MD)No.341 of 2015, this Court directed the petitioner therein, to file a petition before the competent authority along with relevant documents. This Court further directed that on receipt of such a petition, the competent authority shall consider the same taking into account the report of the advocate commissioner and the objections, if any, to be filed by the respondents 4 and 5 therein and to pass appropriate orders, on merits.
4. Pursuant to the above direction, the Tahsildar, Tiruverumbur, Tiruchirapalli District / respondent No.3, vide proceedings in R.C.No.A1/11754/2015, dated 30.12.2015, has caused a notice to the petitioner therein viz., Mr.Baskar, as well as the Correspondent of Sri Ramakrishna Matriculation School, the writ petitioner herein, to appear for an enquiry, on 04.01.2016. It is the case of the petitioner that on 04.01.2016, a detailed representation has been given to the Tahsildar, Tiruverumbur, stating that there were no encroachments.
5. Thereafter, the Tahsildar, Tiruverumbur, vide proceedings in R.C.No.A1/11754/2015, dated 30.12.2015, has requested the Block Development Officer, Panchayat Union Office, Thiruverumbur, to take action for removal of the alleged encroachments, on the grounds that the subject property in village account comes within the jurisdiction of the Block Development Officer, Panchayat Union Office, Thiruverumbur / respondent No.4 herein. Copy of the request, dated 30.12.2016 of the Tahsildar, Tiruverumbur, Tiruchirapalli District / respondent No.3, has been marked to the petitioner. In the above circumstances, a Writ of Certiorari is sought for, on the ground, interalia, that the Tahsildar, Tiruverumbur, Tiruchirapalli District / respondent No.3, has predetermined the issue of encroachment.
6.The impugned proceedings is only an internal communication of the Tahsildar, Tiruverumbur, Tiruchirapalli District / respondent No.3, addressed to the Block Development Officer, Panchayat Union Office, Thiruverumbur, to take action for removal of encroachments. It is trite law that internal communication cannot be challenged in writ proceedings. Reference can be made to few decisions:-
1. In Bachhittar Singh Vs. State of Pubjab, reported in AIR 1963 SC 395, a Constitution Bench of the Supreme Court has considered as to whether a note file which did not fructify into an order and communicated to the petitioner therein, can give rise to a cause of action and at paragraph Nos.9 and 10, held as follows:
9. The question, therefore, is whether he did in fact make such an order. Merely writing something on the file does not amount to an order.
Before something amounts to an order of the State Government two things are necessary. The order has to be expressed in the name of the Governor as required by clause (1) of Article 166 and then it has to be communicated. As already indicated, no formal order modifying the decision of the Revenue Secretary was ever made. Until such an order is drawn up the State Government cannot, in our opinion, be regarded as bound by was stated in the file.
10. Thus it is of the essence that the order has to be communicated to the person who would be affected by that order before the State and that person can be bound by that order. For, until the order is communicated to the person affected by it, it would be open to the Council of Ministers to consider the matter over and over again and, therefore, till its communication the order cannot be regarded as anything more than provisional in character.
2.The views expressed in Bachhittar Singh's case, have been followed in Laxminarayan R.Bhattad Vs. State of Maharashtra, reported in 2003(5) SCC 413, where, the Supreme Court held, a right created under an order of a statutory authority must be communicated to the person concerned, so as to confer an enforceable right. The said proposition of law has once again reaffirmed in Sethi Auto Service Station Vs. Delhi Development Authority, reported in 2009 (1) SCC 180, Where, the Apex Court held that internal notings and departmental communications between Government Agencies do not have the sanction of law to be an effective order, unless it culminates into an executable order, by communication to the person concerned, affecting his right or conferring any legal right. Reliance can also be made to the decision of the Supreme Court in Union of India and others Vs. Vartak Labour Union (2), reported in (2011) 4 SCC 200.?
7. During the course of hearing Mr.N.Mohan, learned counsel appearing for the petitioner contended that there was no enquiry by the Tahsildar, Tiruverumbur and further added that the materials submitted by the petitioner were not considered. We are not inclined to accept the said contention for the reason that, as per the guidelines in G.O.Ms.No.540, Revenue LDG(2) Department, dated 04.12.2014, the Tahsildar has to make a preliminary enquiry, as to whether there is any encroachment. Thereafter, the competent authority has to institute appropriate proceedings for removal of encroachment, under the relevant Act. Insofar as the subject property is concerned, as per the village accounts, it is within Tiruverumbur Panchayat Union and therefore the Tahsildar, Tiruverumbur, Tiruchirapalli District / respondent No.3, has requested the Block Development Officer, Panchayat Union Office, Thiruverumbur, by an internal communication, dated 12.01.2016, to take action for removal of encroachments. At this juncture, it is pertinent to note that, as per Section 131(2) of the Tamil Nadu Panchayat Act, 1994, action has to be taken by the competent authority. Section also contemplates that, if no action is taken by the Executive Authority or the Commissioner, as the case may be, for removal, then it is for the Revenue Department to institute proceedings, under the Tamil Nadu Land Encroachment Act, 1905, to secure such removal. As on today, no action has been taken under the provisions of the above said Section. As and when action is taken under Section 131(2) of the Tamil Nadu Panchayats Act or by the Revenue Department, it is always open to the petitioner to give his objection for the removal of the alleged encroachments. We are not inclined to entertain the Writ Petition, as it is only against an internal communication.
8. In the result, the Writ Petition is dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed.
To
1.The District Collector, Trichy.
2.The Revenue Divisional Officer, Trichy.
3.The Tahsildar, Taluk Office, Tiruverumbur, Tiruchirapalli District.
4.The Block Development Officer, Panchayat Union Office, Thiruverumbur..