Madras High Court
P.Vaiyana Perumal vs The District Collector on 9 February, 2016
Bench: S.Manikumar, C.T.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 09.02.2016
CORAM
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
and
THE HONOURABLE MR.JUSTICE C.T.SELVAM
Writ Petition (MD) No.2823 of 2016
and C.M.P.(MD) No.2501 of 2016
P.Vaiyana Perumal ... Petitioner
Vs.
1.The District Collector,
Thoothukudi District,
Thoothukudi.
2.The Thasildar,
Sathankulam Taluk,
Thoothukudi District.
3.The Block Development Officer,
Sathankulam Taluk,
Thoothukudi District.
4.The President,
Puthantharuvai Panchayat,
Sathankulam Taluk,
Thoothukudi District. ... Respondents
PRAYER : Writ Petition filed under Article 226 of the Constitution of India,
praying to issue a Writ of Certiorarified Mandamus, calling for the records
of the impugned proceedings of the 3rd respondent in A1/2835/2014 dated
26.12.2014 and to quash the same and consequently to direct the 4th
respondent not to interfere the peaceful possession and enjoyment of the
petitioner's property bearing Plot No.26 in Survey No.221 measuring to an
extent of 3 cents situated at Maruthuvar Colony, Usarathakudiyiruppu,
Puthantharuvai Panchayat, Sathankulam Taluk, Thoothukudi District.
!For Petitioner : Mr.J.Vijayaraja
For Respondents 1 & 2 : Mr.A.K.Baskara Pandian
Special Government Pleader
For Respondents 3 & 4 : Mr.D.Muruganantham
Additional Government Pleader
:O R D E R
(Order of the Court was made by S.MANIKUMAR, J.) Materials on record disclose that earlier petitioner has filed W.P.(MD) No.4457 of 2014 for a mandamus, directing the Block Development Officer, Sathankulam Taluk, Tuticorin District, 3rd respondent, therein, to reconnect the common drinking water pipe line in the petitioner's residential area namely Maruthuvar Colony, Usarathukudiyirruppu, Puthantharuvai Panchayat, Sathankulam Taluk, Thoothukudi District on the basis of his representation, dated 04.02.2014. Considering the nature of the relief sought for and without going into the merits of the petitioner's claim, vide order dated 21.08.2014, made in W.P.(MD) No.4457 of 2014, this Court has directed the Tahsildar, Sathankulam Taluk, Thoothukudi District, respondent No.2, therein, to enquire into the matter, after getting a report from the President, Puthantharuvai Panchayat, Sathankulam Taluk, Thoothukudi District, the 4th respondent therein, if necessary, to conduct a spot inspection through his subordinate, and pass orders, within three weeks from the date of receipt of a copy of that order.
2.By referring to the proceedings of the Tahsildar, Sathankulam in Na.Ka.No.A6/8370/14, dated 28.10.2014, the Block Development Officer, Sathankulam Taluk, Thoothukudi District, having found that there is an encroachment by the writ petitioner for construction of a compound wall and that a basement had already been constructed, vide proceedings in Aa1/2835/2014 dated 26.12.2014, requested the President of Puthantharuvai Panchayat, Sathankulam Taluk, Thoothukudi District to take action for removal of the said basement.
3.Though the above said request has been made as early as on 26.12.2014, no materials have been placed before this Court by the petitioner to show that action has been taken by the President of Puthantharuvai Panchayat for removal of the alleged encroachment. Contending inter-alia that steps are being taken to remove the alleged encroachment without notice, the instant Writ Petition has been filed to quash the proceedings of the Block Development Officer, Sathankulam in Aa1/2835/2014 dated 26.12.2014.
4.The impugned proceedings is a only request made to the President, Puthantharuvai Panchayat. Supporting affidavit does not disclose as to whether any action is taken. Insofar as the correspondence between Block Development Officer and Panchayat President is concerned, it is internal. Internal correspondence cannot be called in question, in writ proceedings. Reference can be made to few decisions.
5.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.
6.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.From the above, it could be deducted that pursuant to the directions issued by this Court in W.P.(MD) No.4457 of 2014 dated 21.08.2014, action has been taken and a request has been made to the President of Puthantharuvai Panchayat to remove the alleged encroachment. From the materials on record, it could be deduced, so far he has not taken any action. Writ of mandamus cannot be issued, merely because a person is praying for. One must establish the right first and then he must seek for the prayer to enforce the said right. If there is failure of duty by the authorities or inaction, one can approach the Court for mandamus. The said position is well settled by in series of decisions.
(a) In Comptroller and Auditor General of India vs. K.S.Jegannathan, reported in AIR 1987 SC 537 = 1986 (2) SCC 679, a Three-Judge Bench of the Honourable Apex Court referred to Halsbury's Laws of England 4th Edition, Vol.I. Paragraph 89, about the efficacy of mandamus:
?89.Nature of Mandamus.-- .... is to remedy defects of justice; and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy, for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual.?
(b) In the decision reported in (1996) 9 SCC 309 (State of U.P. and Ors. v. Harish Chandra and Ors.) in paragraph 10, the Apex Court held as follows:
10. ...Under the Constitution a mandamus can be issued by the court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and the said right was subsisting on the date of the petition....
(c) In the decision reported in (2004) 2 SCC 150 (Union of India v. S.B. Vohra) the Supreme Court considered the said issue and held that 'for issuing a writ of mandamus in favour of a person, the person claiming, must establish his legal right in himself. Then only a writ of mandamus could be issued against a person, who has a legal duty to perform, but has failed and/or neglected to do so.
(d) In the decision reported in (2008) 2 SCC 280 (Oriental Bank of Commerce v. Sunder Lal Jain) in paragraphs 11 and 12 the Supreme Court held thus,
11. The principles on which a writ of mandamus can be issued have been stated as under in The Law of Extraordinary Legal Remedies by F.G. Ferris and F.G. Ferris, Jr.:
Note 187.-Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duty to which the party applying for the writ is entitled of legal right to have performed.
Note 192.-Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty.
Note 196.-Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the court, subject always to the well- settled principles which have been established by the courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the court may, and should, look to the larger public interest which may be concerned-an interest which private litigants are apt to overlook when striving for private ends. The court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances.
Note 206.- ... The correct rule is that mandamus will not lie where the duty is clearly discretionary and the party upon whom the duty rests has exercised his discretion reasonably and within his jurisdiction, that is, upon facts sufficient to support his action.
12. These very principles have been adopted in our country. In Bihar Eastern Gangetic Fishermen Coop. Society Ltd. v. Sipahi Singh after referring to the earlier decisions in Lekhraj Sathramdas Lalvani v. N.M. Shah, Rai Shivendra Bahadur (Dr.) v. Nalanda College and Umakant Saran (Dr.) v. State of Bihar this Court observed as follows in para 15 of the Reports (SCC): (Sipahi Singh case, SCC pp. 152-53)
15. ... There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance.... In the instant case, it has not been shown by Respondent 1 that there is any statute or rule having the force of law which casts a duty on Respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as already indicated, is also not binding and enforceable. Accordingly, we are clearly of the opinion that Respondent 1 was not entitled to apply for grant of a writ of mandamus under Article 226 the Constitution and the High Court was not competent to issue the same.
Therefore, in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities....?
8.In the light of decision stated supra, the Writ Petition is not maintainable. Hence, we are not inclined to interfere with the proceedings of the Block Development Officer, Sathankulam, Thoothukudi District.
9.Accordingly, the Writ Petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is also dismissed.
To
1.The District Collector, Thoothukudi District, Thoothukudi.
2.The Thasildar, Sathankulam Taluk, Thoothukudi District.
3.The Block Development Officer, Sathankulam Taluk, Thoothukudi District.
4.The President, Puthantharuvai Panchayat, Sathankulam Taluk, Thoothukudi District..