Madras High Court
Dasan @ R.Muthusamy vs The District Collector on 26 February, 2018
Bench: S.Manikumar, V.Bhavani Subbaroyan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.02.2018 CORAM: THE HON'BLE MR.JUSTICE S.MANIKUMAR AND THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN W.P.No.4238 of 2018 W.M.P.Nos.5224 and 5225 of 2018 1.Dasan @ R.Muthusamy 2.S.Palanisamy 3.K.Chenniappan 4.Muthulakshmi ... Petitioners vs. 1.The District Collector, Erode District, Erode 638 011. 2.The Tahsildar, Modakurichi Taluk, Erode District. ... Respondents Prayer: Writ Petition is filed under Article 226 of the Constitution of India, praying for the issuance of a writ of Mandamus, directing the 1st respondent to number the statutory appeal and stay petition dated 14.02.2018 filed under Section 10 of the Tamil Nadu Land Encroachment Act, 1905 filed against the eviction notice dated 09.02.2018 passed by the 2nd respondent, and to dispose of the same in accordance with law after giving due opportunity to the petitioners. For Petitioners : Mr.V.Srikanth For Respondents : Mr.A.N.Thambidurai Special Govt. Pleader ORDER
(Order of the Court was made by S.MANIKUMAR, J) Writ petitioners, have claimed that they are residents of Chinnammapuram, Punjai Kalamangalam Village, Modakurichi Taluk, Erode District, and sought for a writ of mandamus, directing the District Collector, Erode District, first respondent herein, to number the statutory appeal and stay petition, dated 14.02.2018 filed by them, under Section 10 of the Tamil Nadu Land Encroachment Act, 1905, challenging the eviction notice dated 09.02.2018, passed under Section 6 of the Tamil Nadu Land Encroachment Act, 1905, by the Tahsildar, Modakurichi Taluk, Erode District, second respondent herein, and prayed to dispose of the same in accordance with law, after giving due opportunity to them.
2. Shorts facts leading to the writ petition are that the petitioners belong to the suppressed/scheduled community and engaged in agricultural labour. They are in occupation of Government poramboke land bearing S.No.11/1 of Punjai Kalamangalam Village, for more than 37 years. They are paying House Tax, Electricity Board charges and issued with Voter's, Ration and Aadhar cards. While possession being continuous and uninterrupted, the District Collector, Erode District, first respondent herein, passed an order in Na.Ka.No.27273/2013/U1, dated 06.04.2016, by which, the Collector, has rejected the objections raised by one of the relatives of the writ petitioners, namely M.Jayamani, who is also in occupation of a small house in the very same S.No.11/1. Rejection order dated 06.04.2016, came to be challenged by the said M.Jayamani, in W.P.No.37544 of 2016 before the Writ Court.
3. According to the petitioners, Writ Court, directed an enquiry. Pursuant to the order made in W.P.No.37544 of 2016, dated 26.10.2016, no enquiry was conducted by respondents 1 and 2. However, Revenue Inspector of Modakurichi Firka, has issued notice dated 24.01.2018, under Section 7 of the Tamil Nadu Land Encroachment Act 1905 calling upon the petitioners, as to why they should not be removed from the alleged encroached portion of the land in S.No.11/1 of Punjai Kalamangalam Village. Petitioners submitted that their objections dated 05.02.2018, contending inter alia, that they are in possession of the subject property over a long period, and that they cannot be evicted, summarily.
4. It is the further case of the petitioners that though, their objections made by them were received, the Revenue Inspector, Modakurichi Firka, has not conducted any enquiry, and whereas the Tahsildar, Modakurichi Taluk, Erode District, second respondent herein, has passed an order dated 09.02.2018, under Section 6 of the Land Encroachment Act, 1905.
5. Being aggrieved, petitioners have filed a statutory appeal under Section 10 of the Land Encroachment Act, 1905, along with a stay petition under Section 10-B of the said Act, before the District Collector, Erode District, the first respondent herein. Tahsildar, Modakurichi Taluk, Erode District, second respondent herein, has informed the petitioners that he would proceed with the order of eviction, if no stay order is produced. Apprehending that the second respondent, may proceed with the order of eviction, unmindful of pendency of the statutory appeal before the District Collector, Erode District, first respondent herein, and threat of eviction, instant writ petition has been filed for a mandamus directing the District Collector, Erode District, the 1st respondent herein, to number the statutory appeal and stay petition dated 14.02.2018, filed under Section 10 of the Tamil Nadu Land Encroachment Act, 1905.
6. In the forenoon, when the writ petition came up for admission, considering the limited prayer sought for, Mr.A.N.Thambidurai, learned Special Government Pleader, was put on notice, and directed to get instructions, as to the stage of the statutory appeal filed by the writ petitioners. Reverting in the afternoon, Mr.A.N.Thambidurai, learned Special Government Pleader, submitted that the statutory appeal filed under Section 10 of the Land Encroachment Act, 1905, has been numbered and that the Appellate Authority, namely District Collector, Erode District, has dismissed the appeal on 06.04.2016 itself, and that therefore nothing survives in the writ petition.
7. However, inviting the attention of this Court to the earlier finding of the District Collector, Erode District in the proceedings in Na.Ka.No.27273/2015/U1, dated 06.04.2016, Mr.V.Srikanth, learned counsel for the petitioner submitted that when there was a request for removal of alleged encroachment, inspection of S.No.11/1 was done by the District Collector, Erode District, on 06.04.2016, and that the District Collector, has found and recorded in his order dated 06.04.2016, that sufficient place was available for widening of road, in future. Thus, when the District Collector, Erode District, first respondent herein, himself in his order in R.C.No.27273/2015/U1, dated 06.04.2016, has observed that alleged construction of houses by Muthusamy, Kuppan, Palanisamy, Muthulakshmi and Rajan, dis not cause any disruption to traffic and transport and thus accordingly, dismissed the petition dated 04.09.2015 of M.Jayamani, quite contrary to the above finding/report dated 06.04.2016, of the District Collector, Erode District, first respondent herein, the Revenue Inspector, Modakurichi Firka, has issued notice under Section 7 of the Land Encroachment Act, 1905, for removal of the alleged land encroachment.
8. Mr.V.Srikanth, learned counsel for the petitioners further submitted that the petitioners have been residing in S.No.11/1, Chinnammapuram, Punjai Kalamangalam Village, Modakurichi Taluk, Erode District, for nearly 37 years. In the local body elections, writ petitioners and others, have opposed the village president. M.Jayamani and another were instigated to file a suit before the learned District Munsif Court, Erode, not to provide electricity connection. Suit was dismissed and in 2004, petitioners have obtained electricity service connection. M.Jayamani and another, have caused disturbance to the petitioners in getting patta. Writ petitioners have filed W.P.No.27373 of 2007, for grant of patta. Alleging that the petitioners have encroached, M.Jayamani, has filed W.P.No.40058 of 2015, for a mandamus directing the District Collector, Erode District, to remove the alleged encroachments.
9. Inviting the attention of this Court to the order made in W.P.No.40058 of 2015, learned counsel for the petitioners further submitted that though they have been impleaded as party-respondents in W.P.No.40058 of 2015, without notice to them, the Hon'ble First Bench of this Court, directed that the representation of Mr.M.Jayamani, petitioner therein, be disposed of by the District Collector, Erode District, first respondent therein, after notice to all concerned, by a speaking order, within a maximum period of two months from the date of receipt of that order.
10. Pursuant to the direction of this Hon'ble Court in W.P.No.40058 of 2015, dated 18.12.2015, notice was given to all the parties and finally the District Collector, Erode District, vide proceedings in Na.Ka.No.27273/2015/U1, dated 06.04.2016, dismissed the petition dated 04.09.2015, filed by M.Jayamani. Being aggrieved by the order of the District Collector, Erode District, M.Jayamani, has filed W.P.No.37544 of 2016, impleading the District Collector and Tahsildar, Erode District, as respondents 1 and 2 therein and Palanisamy, Thasan @ Muthusamy, Rajan, Muthulakshmiand Chenniappan, have been impleaded as respondents 3 to 7 in W.P.No.37544 of 2016.
11. Learned counsel for the petitioners submitted that, here again, without issuing notice to the private respondents, W.P.No.37544 of 2016 has been disposed of on 26.10.2016, setting aside the order dated 06.04.2016 and directions have been issued by the Honble First Bench of this Court, that if encroachments exist, they are bound to be removed unless there is any impediment or direction contrary to the same by any competent court and further directed that a fresh decision be taken within a maximum period of one month of date of receipt of the order.
12. Pursuant to the above directions, Revenue Inspector, Modakurichi Firka, has issued notice under Section 7 of the Land Encroachment Act, 1905, and thereafter, on 09.02.2018 orders have been passed. Petitioners have filed a statutory appeal under Section 10 with a petition for stay under Section 10-B of the Act, 1905, on 14.02.2018, and in the appeal, the petitioners have set out the earlier proceedings, orders passed by the Court in W.P.No.27373 of 2007 regarding patta, representation dated 19.07.2010, 22.06.2015 and 06.07.2015 respectively, for grant of patta and the dispute between the parties, on the above aspects, and referred to 42 documents.
13. Though appeal has been preferred on 14.02.2018, which according to the writ petitioners, not numbered, they are constrained to seek for a mandamus as stated supra. But according to the learned counsel for the petitioners, appeal has been dismissed.
14. Copy of the proceedings of the District Collector, Erode District dated 23.02.2018, obtained by the learned Special Government Pleader, is extracted hereunder:-
<nuhL khtl;lk;. bkhlf;Fwpr;rp tl;lk;. g[";ir fhsk';fyk; fpuhkk;. hP/r/vz;/11-1 rhiy g[wk;nghf;fpy; c;ss Mf;fpukpg;ig mfw;wf; nfhhp jpU/vk;/b$akzp vd;gth; khz;gik brd;id cah;ePjpkd;wj;jpy; ePjpg;nghuhiz kD vz;/40058-2015?d;go bjhlh;e;j tHf;fpy; fle;j 18/12/2015 md;W tH';fg;gl;l jPh;g;gpiuapd; mog;gilapy; chpa tprhuiz nkw;bfhs;sg;gl;L. jzpf;if bra;ag;gl;lJ/ bkhlf;Fwpr;rp tl;lk;. g[";ir fhsk';fyk; fpuhkk;. hP/r/vz;/11-1?,y; jpU/gHdprhkp. jpU/jhrd;(v) Kj;Jrhkp. jpU/brd;dpag;gd;. jpUkjp/Kj;Jyl;Rkp kw;Wk; jpU/uh$d; Mfpnahh; tPLfl;o bra;Js;s Mf;fpukpg;g[fshy; nghf;Ftuj;jpw;F vt;tpj ,ila{Wk; ,y;iy vdf;fUjp. Mf;fpukpg;ig mfw;wf; nfhhpa kDjhuh; jpU/vk;/b$akzp vd;gthpd; 04/09/2015 ehspl;l kDthdJ js;Sgo bra;J ghh;it 2?y; cj;jut[ gpwg;gpf;fg;gl;lJ/ nkw;go cj;jutpid ,uj;J bra;J. Mf;fpukpg;gpid mfw;wf; nfhhp jpU/vk;/b$akzp vd;gth;. khz;gik brd;id cah;ePjpkd;wj;jpy; ePjpg;nghuhiz kD vz;/37544-2016?d; go tHf;F bjhlh;;e;jhh;/ nkw;go tHf;fpy; fle;j 26/10/2016 md;W tH';fg;gl;l jPh;g;gpy; gpd;tUkhW cj;jutplg;gl;Ls;sJ/ We have, thus, no option but to set aside the impugned order in the aforesaid context with a direction that if encroachments exist, they are bound to be removed unless there is any impediment or direction contrary to the same by any competent court. A fresh decision be taken within a maximum period of one month of date of receipt of the order.
The petition is, accordingly disposed of. nkw;go cj;jutpd; mog;gilapy;. bkhlf;Fwpr;rp tl;lk;. g[";ir fhsk';fyk; fpuhkk;. hP/r/vz; 11-1 rhiy g[wk;nghf;fpy; cs;s Mf;fpukpg;g[ bjhlh;ghf. ePjpkd;w eltof;iffis fUj;jpy; bfhz;L Mf;fpukpg;gpid mfw;w jkpH;ehL epy Mf;fukpg;g[r;rl;lk;?1905 d;go eltof;if nkw;bfhz;L mwpf;if rkh;g;gpf;f bkhlf;Fwpr;rp tl;lhl;rpaUf;F ghh;it 4?y; fhQqk; khtl;l Ml;rpj;jiyth; mth;fspd; bray;Kiwfspy; cj;jutplg;gl;oUe;jJ/ nkw;go g[y';fspy; cs;s Mf;fpukpg;gpid mfw;w bkhlf;Fwpr;rp tUtha; tl;lhl;rpauhy; 24/01/2018 md;W jkpH;ehL epy Mf;fpukpg;g[ rl;lk; 1905 gphpt[ 7?d; fPH; tH';fpa mwptpg;gpid Ml;nrgpj;J ghh;it 5y; fhQqk; Fwpg;gpy; Mf;fpukpg;ghsh;fs; nky; KiwaPl;L kDf;fis khtl;l Ml;rpj;jiyth; mth;fSf;F mspj;Js;sdh;/ ,e;neh;tpy; bkhlf;Fwpr;rp tl;lk;. g[";ir fhsk';fyk; fpuhkk; hP/r/vz; 11-1 ? y; rhiy g[wk;nghf;fpy; cs;s Mf;fpukpg;gpid mfw;WtJ bjhlh;ghf Vw;fdnt tprhuiz bra;J ePjpkd;w cj;jut[fisf; fUj;jpy; bfhz;L Mf;fpukpg;ig mfw;w khtl;l Ml;rpj;jiyth; mth;fshy; Vw;fdnt bkhlf;Fwpr;rp tl;lhl;rpaUf;F cj;jutplg;gl;Ls;sjhy; kDjhuhpd; nkw;KiwaPl;L kDf;fis js;Sgo bra;J ,jd; K:yk; cj;jutplg;gLfpwJ/
15. From the perusal of the above, it could be seen that the District Collector, Erode District, has not assigned any valid reason to arrive at the conclusion for ordering removal of the writ petitioners from the premises, which is contra to the observation and decision made during inspection on 06.04.2016. For brevity, order of the District Collector, Erode District, dated 06.04.2016, is extracted hereunder:-
"nkw;go hP/r/11-1?,y; Cuhl;rpf;Fr; brhe;jkhd m';fd;tho fl;olk;. bghJnrit ika fl;olk;. jz;zPh; jiukl;lj; bjhl;o. cah;kl;l ePh;njf;f jz;zPh;j;bjhl;o. jz;zPh;g; ge;jy; kw;Wk; nkw;Fg; g[wkhf rKjhaf; Tlk; Mfpa MW fl;ol';fs; mike;Js;sd/ ,e;j rhiy g[wk;nghf;F g[yj;jpy; rhiyia gad;gLj;Jgth;fnsh. Cuhl;rp eph;thfj;jpnyh Mf;fpukpg;g[fis mfw;wf;nfhutpy;iy/ nkw;go g[yk; hP/r/11-1? MdJ khtl;l Ml;rpj; jiyth; mth;fshy; 06/04/2016 md;W jzpf;if bra;ag;gl;lJ/ hP/r/11-1?,y; rhiyg; g[wk;nghf;fpy;. vjph;fhyj;jpy; rhiy tphpthf;fk; bra;a njitg;gLk; ,lj;jpw;Fk; kpFjpahf ,lKs;sJ/ hP/r/11-1?,y; jpU/gHdprhkp. jpU/jhrd; (v) Kj;Jrhkp. jpU/brd;dpag;gd;. jpUkjp/Kj;Jyl;Rkp kw;Wk; jpU/uh$d; Mfpnahh; tPLfl;o bra;Js;s Mf;fpukpg;g[fshy; nghf;Ftuj;jpw;F vt;tpj ,ila{Wkpy;iy/ vdnt. Mf;fpukpg;ig mfw;wf;nfhupa kDjhuh; jpU/vk;/b$akzp vd;gthpd; 04/09/2015 ehspl;l kDthdJ js;Sgo bra;J cj;jutplg;gLfpwJ/"
16. Order dated 23.02.2016 also does not indicate the action taken by the Revenue Authority, pursuant to the directions made in W.P.No.27373 of 2007 filed by the petitioners.
17. As rightly contended by Mr.V.Srikanth, learned counsel for the petitioners, that though in W.P.No.37544 of 2016 filed by one M.Jayamani, challenging the order dated 06.04.2016, writ petitioners have been impleaded as respondents 3 to 7, no notice has been issued to them and that they were not heard at the time of disposal of W.P.No.37544 of 2016. Even though, petitioners have offered their objections to the notice issued under Section 7 of the Land Encroachment Act, 1905, no enquiry has been conducted, and that even the order dated 09.02.2018 passed under Section 6 of the said Act, does not disclose, consideration of the explanation of the petitioners dated 05.02.2018, much-less an enquiry under Section 7 of the said Act. In the appeal dated 14.02.2018, petitioners have stated about their continuous and uninterrupted possession for nearly 37 years, dispute inter se between the parties, in obtaining electricity service connection, filing of a writ petition for getting patta and other details. Perusal of the order of the District Collector, Erode District, first respondent herein, shows that the District Collector, has not adverted to any of the above, but simply carried away by the directions of the Honble Division Bench of this Court in W.P.No.37544 of 2016, dated 26.10.2016, wherein observations have been made that if encroachments exist, they are bound to be removed unless there is any impediment or direction, contrary to removal by any Court. District Collector, Erode District, ought to have at least taken note of his own observation and finding during the inspection, conducted on 06.04.2016, extracted supra.
18. Facts extracted supra makes it clear, that no notice was given to the petitioners calling for an enquiry, and consequently, no enquiry has been conducted. Though there is no provision, obligating the Appellate Authority to inform the date for hearing, we are of the view that the District Collector, Erode District, first respondent herein, should have at least intimated the petitioners that the appeal would be taken up on 23.02.2018. No notice has been given to the petitioners regarding hearing of the appeal. From the material on record, it is deduced that, everything has been done in quick succession probably, in our view, taking note that the time stipulated in the order made in W.P.No.37544 of 2016, i.e. one month from the date of receipt of a copy made in the said writ petition, the District Collector, Erode, has passed the impugned order, ignoring his own observation and finding, in the earlier order dated 06.04.2016.
19. Section 10-A of the Land Encroachment Act, 1905, reads thus:-
"10-A.Revision- (1) Any decision or order passed under this Act may be revised either suo motu or on application-
(a) by the District Collector, if such decision or order was passed by a Deputy Tahsildar, Tahsildar or Collecor;
(b) by the [Commissioner of Land Administration] if such decision or order was passed by any officer other than the appellate authority;
(c) by the State Government, if such decision or order was passed by the appellate authority or the [Commissioner of Land Administration].
(2) The power conferred by sub-section (1) shall not be exercised except on the ground that the officer or authority whose decision or order is sought to be revised appears to have exercised a jurisdiction not vested in him or it by law or to have failed to exercise a jurisdiction so vested, or to have acted in the exercise of his or its jurisdiction illegally or with material irregularity.
(3) No decision or order shall be passed under sub-section (1) prejudicial to any person without giving such person a reasonable opportunity of making any representation that he may desire to make and such representation, if any, shall be taken into consideration, before such decision or order is passed."
20. Section 10-B of the Land Encroachment Act, 1905, reads thus:-
"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.
Note: Interim order of stay, if not granted, it would be a travesty of justice when order or eviction is executed - (A.Natarajan Vs. The Commissioner, Land Administration, 1996-2-L.W.553)"
21. Period of limitation for filing an appeal, as per Section 11 of the Land Encroachment Act, 1905, is thirty days from the date on which the decision or order to be appealed against, was received by the appellant.
22. Section 11 of the Land Encroachment Act, 1905 reads thus:-
"11. Limitation for appeal and revision - (1) No appeal shall be preferred under Section 10 after the expiration of thirty days from the date on which the decision or order appealed against was received by the appellant.
(2) No application for revision shall be preferred under sub-sections (1) of the Section 10-A after the expiration of thirty days from the date on which the decision or order sought to be revised was received by the applicant.
(3) In computing the period of thirty days referred to in sub-sections (1) and (2), the time required to obtain a copy of the decision or order appealed against or sought to be revised shall be excluded.
(4) Notwithstanding anything contained in sub-section (1) and (2), the officer or authority concerned or the State Government may admit an appeal or application preferred after the period specified therein, if such officer or authority or Government is or are satisfied that the appellant, or applicant had sufficient cause for not preferring the appeal or application within that 'period'."
23. Considering the entire facts, we are of the view that, even assuming that the petitioners are encroachers, their contention of continued possession, as claimed by them, requires to be considered and the respondent is mandated to follow the procedure contemplated under Section 7 of the Land Encroachment Act, 1905. Appellate Authority is bound to apply the doctrine of fairness. It is worthwhile to consider few decisions, extracted in Management of M/s.M.S.Nally Bharat Engineering Co. Ltd., v. State of Bihar reported in 1990 (2) SCC 48, as follows:
"12. After the leading English case of Ridge v. Baldwin, 1964 AC 40 and an equally important case of this Court in A.K.Kraipak v. Union of India 1970 1 SCR 457 there was a turning point in the development of doctrine of natural justice as applicable to administrative bodies. Both the authorities laid down that for application of rules of natural justice the classification of functions as judicial or administrative is not necessary. Lord Reid in Ridge case explained: that the duty to act judicially may arise from the very nature of the function intended to be performed and it need not be shown to be superadded. Hegde, J., in Kraipak case said that under our Constitution the rule of law pervades over the entire field of administration. Every organ of the State under our Constitution is regulated and controlled by the rule of law. The concept of rule of law would lose its vitality if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously. The procedures which are considered inherent in the exercise of a judicial power are merely those which facilitate if not ensure a just and fair decision.
13. What is thus important in the modern administration is the fairness of procedure with elimination of element of arbitrariness. The State functionaries must act fairly and reasonably. That is, however, not the same thing to state that they must act judicially or quasi-judicially. In Keshav Mills Co. Ltd., v. Union of India, 1973 3 SCR 22 Mukherjea, J. said (SCC p. 387, para 8: SCR p. 30) The administrative authority concerned should act fairly, impartially and reasonably. Where administrative officers are concerned, the duty is not so much to act judicially as to act fairly.
14. The procedural standards which are implied by the duty to act fairly has been explained by Lord Pearson in Pearlberg v. Varty, 1972 1 WLR 534, 547:
A tribunal to whom judicial or quasi-judicial functions are entrusted is held to be required to apply those principles (i.e the rules of natural justice) in performing those functions unless there is a provisions to the contrary. But where some person or body is entrusted by Parliament with administrative or executive functions there is no presumption that compliance with the principles of natural justice is required although, as Parliament is not to be presumed to act unfairly, the courts may be able in suitable cases (perhaps always) to imply an obligation to act with fairness.
15. In Mohinder Singh Gill v. Chief Election Commissioner, 1978 1 SCC 405, 434 Krishna Iyer, J. commented that natural justice though varying is the soul of the rule as fair play in action. It extends to both the fields of judicial and administrative. The administrative power in a democratic set up is not allergic to fairness in action and discretionary executive justice cannot degenerate into unilateral injustice. Good administration demands fair play in action and this simple desideratum is the fount of natural justice. Fairness is flexible and it is intended for improving the quality of government by injecting fair play into its wheels.
16. In Maneka Gandhi v. Union of India, 1978 2 SCR 621 Bhagwati, J., expressed similar thought that audi alteram partem is a highly effective rule devised by the courts to ensure that a statutory authority arrives at a just decision and it is calculated to act as a healthy check on the abuse or misuse of power.
17. In Swadeshi Cotton Mills v. Union of India, 1981 1 SCC 664 Sarkaria, J., speaking for himself and Desai, J., said that irrespective of whether the power conferred on a statutory body or tribunal is administrative or quasi-judicial, a duty to act fairly, that is, in consonance with the fundamental principles of substantive justice is generally implied. The presumption is that in a democractic polity wedded to the rule of law, the State or the legislature does not intend that in the exercise of their statutory powers its functionaries should act unfairly or unjustly. In the same case, Chinnappa Reddy, J., added (at p. 212) that the principles of natural justice are now considered so fundamental as to be implicit in the concept of ordered liberty. They are, therefore, implicit in every decision making function, call it judicial, quasi-judicial or administrative. The learned Judge went on to state that where the statute is silent about the observance of the principles of natural justice, such statutory silence is taken to imply compliance with the principles of natural justice. The implication of natural justice being presumptive, it should be followed by the authorities unless it is excluded by express words of statute or by necessary implication.
18. Citations could be multiplied since there is fairly abundant case law which has come into existence : See, for example, E.P.Royappa v. State of Tamil nadu 1974 2 SCR 348 and Union of India v. Tulsiram Patel, 1985 (3) SCC 398. More recently in a significant judgment in Charan Lal Sahu v. Union of India, 1990 1 SCC 613, learned Chief Justice Sabyasachi Mukharji has referred to almost all the authorities of this Court on this aspect and emphasized that the principles of natural justice are fundamental in the constitutional set up of this country. No man or no man's right should be affected without an opportunity to ventilate his views. Justice is a psychological yearning, in which men seek acceptance of their viewpoint by having an opportunity before the forum or the authority enjoined or obliged to take a decision affecting their right.
19. It may be noted that the terms fairness of procedure, fair play in action, duty to act fairly are perhaps used as alternatives to natural justice without drawing any distinction. But Prof. Paul Jackson points out that Such phrases may sometimes be used to refer not to the obligation to observe the principles of natural justice but, on the contrary, to refer to a standard of behaviour which, increasingly, the courts require to be followed even in circumstances where the duty to observe natural justice is inapplicable (Natural Justice by Paul Jackson, 2nd edn., p. 11).
20. We share the view expressed by Professor Jackson. Fairness, in our opinion, is a fundamental principle of good administration. It is a rule to ensure the vast power in the modern State is not abused but properly exercised. The State power is used for proper and not for improper purposes. The authority is not misguided by extraneous or irrelevant considerations. Fairness is also a principle to ensure that statutory authority arrives at a just decision either in promoting the interest or affecting the rights of persons. To use the time hallowed phrase that justice should not only be done but be seen to be done is the essence of fairness equally applicable to administrative authorities. Fairness is thus a prime test for proper and good administration. It has no set form or procedure. It depends upon the facts of each case. As Lord Pearson said in Pearlberg v. Varty (at p. 547), fairness does not necessarily require a plurality of hearings or representations and counter-representations. Indeed, it cannot have too much elaboration of procedure since wheels of administration must move quickly."
24. On the facts and circumstances of the case, and in the light of the decisions stated supra, we are of the view, that the District Collector, Erode District, has acted arbitrarily, contrary to the Doctrine of fairness and equity. We do not approve the action of the District Collector, Erode District.
25. On the facts and circumstances of the case, we direct the District Collector, Erode District, first respondent herein, to serve the order made in Na.Ka.No.27273/2015/U1, dated 18.03.2016 to the petitioners, within one week forthwith. On receipt of the same, the petitioners are at liberty to approach the revisional authority under Section 10-A of the Land Encroachment Act, 1905. Revisional Authority, namely, Commissioner of Land Administration, Chennai and he is directed to consider the facts and evidence, based on the submission of continuous and uninterrupted possession by the petitioners, for 37 years, that there was also recognition by the Government, Corporation and Local Badies, in issuing Aadhar Card, Voter ID, Payment of Property Tax receipt, to the subject property and also the factual finding of the District Collector, Erode District, in his order dated 06.04.2016.
26. We also deem it to consider that Government have issued G.O. Ms. No.854 for grant of patta to the alleged encroachers, recognizing their uninterrupted and continuous possession. If the property is not required by the Government. Commissioner of Land Administration, Chennai, is directed to take note of the order made in W.P.No.27373 of 2007, dated 15.06.2010, document No.2, filed along with the appeal. Commissioner of Land Administration shall intimate, to the petitioner, as to when the revision would be taken up for hearing.
27. We have heard, all parties to the litigation, before us, and of the view that the District Collector, Erode District and Tahsildar, Modakurichi Taluk, Erode District, is bound to take note of the order of this Court.
28. We direct Mr.A.N.Thambidurai, learned Special Government Pleader, to communicate the order passed by this Court made in W.P.No.4238 of 2018, today itself.
29. With the above observations and directions, Writ Petition is disposed of. No Costs. Consequently, connected Writ Miscellaneous Petitions are closed.
(S.M.K., J.) (V.B.S., J.) 26.02.2018 Index: Yes/No. Internet: Yes/No. Speaking/Non speaking dm To
1.The District Collector, Erode District, Erode 638 011.
2.The Tahsildar, Modakurichi Taluk, Erode District.
S.MANIKUMAR, J.
AND V.BHAVANI SUBBAROYAN, J.
dm W.P.No.4238 of 2018 and W.M.P.Nos.5224 and 5225 of 2018 26.02.2018