R. Ravichandran v. The President The Executive Authority Kodanad Village Panchayat Kothagiri Taluk Keradamattam The Nilgiris District & Ors.

3.M. Ponthose.. RespondentsPetition filed under Article 226 of the Constitution of India seekingfor issuance of writ of Certiorari calling for the records pertainingto the proceedings of the first respondent in proceedings dated10.9.2007 and quash the same. For Petitioner: Mr. G. Rajagopal, SCin all W.Ps. for Mr. A. NavaneethakrishnanFor Respondents: Mr. G. Masilamani, AGin all W.Ps. for Mr. G. Sankaran, Spl. GPC O M M O N O R D E R1.Backdrop:-1.1.Kodanad Estate represented by its Manager, is the petitionerin all the four writ petitions. The said Estate is situated withinthe Kodanad Village Panchayat coming under the Kothagiri Taluk,Nilgiris District. Within its sprawling 825 Acres, there are severalbuildings including servant quarters, guest houses, security quarters,godown, office buildings. The management of the present Estate cameinto possession of the Estate during February 1995 after purchasingthe Estate from its erstwhile partners and re-constituting thepartnership.1.2.The erstwhile management of the Estate made an applicationto the Government for issuance of licences for constructing aresidential building in Survey No. 168 (Field No. 4) Bancaad Divisionand also another residential building in Survey No. 159 (WarbrecanDivision) at Kodanad Village, Kothagiri Panchayat Union, The NilgirisDistrict. The request of the erstwhile owner, Tmt. RadhaVenkatachalam was placed before the Architectural and AestheticAspects Committee [for short, 'AAA Committee']. The AAA Committee, inits meeting held on 15.3.1995, recommended her request for grant ofpermission subject to the condition that they must plant enough shadebearing trees around the Buildings. Thereafter, the Government, onconsidering the recommendations of the AAA Committee, accordedpermission by virtue of G.O. (D) Nos. 67 and 68 MunicipalAdministration and Water Supply Department dated 17th March 1995, forconstruction of residential building as requested by her with the samecondition. The Building plans perused by them were returned andcopies of the Government Orders were also marked to appropriateauthorities.1.3.A perusal of these two orders clearly shows that theCommissioner of Panchayat Union, Kothagiri was dealing with the said https://hcservices.ecourts.gov.in/hcservices/ issue at the relevant time. Thereafter, necessary licence fees werepaid to the Panchayat and they were subjected to the House Tax, whichwas also paid. The copies of Licence fee receipts, proceedings ofthe Panchayat granting Building Licence as well as House Tax receiptsin respect of these buildings are kept in a typed set filed along withW.P. No. 30671 of 2007. The partnership had undergone changes due toreconstitution in the years 1995 and 2000.1.4.It is seen from the records that the Kodanad Village gramasabha, by a resolution dated 27.3.2007, took a decision to issuenotice to all the unlicensed buildings and buildings which were nottaxed for House Tax. By a letter dated 15.4.2007, the President ofthe Kodanad Village Panchayat informed the petitioner Estate that newbuildings are being constructed and since they want to impose Housetax in terms of the Tamil Nadu Panchayats Act [for short, 'PanchayatsAct'], they were directed to furnish all the documents to thePanchayat Union Office. 1.5.It is the case of the petitioners that subsequent to thesaid notice, on 31.5.2007, the President of the Kodanad VillagePanchayat, sent a letter to the Assistant Director of Local FundAudit, Udhagamandalam stating that Estate has given documents onnotice and till such time those documents are considered and adecision is made, no further action need be taken. Thereafter, anotice was given to the Estate by a letter dated 30.5.2007 statingthat since the President of the Panchayat was not able to serve noticeand he was told that the Manager of the Estate was out of station andthe office premises was locked, he informed the Estate that theofficials of the Revenue and concerned authorities will visit theKodanad Estate for inspection on 05.6.2007 at about 9.30 am. 1.6.However, serious objections were raised with reference tothese two documents by the respondents and they stated that no suchdocument exists though the signatures found in those documents tallywith the signature of the President of the Village Panchayat in thefirst letter dated 31.5.2007 and his subsequent correspondences. Inany event, by a letter dated 30.5.2007, the Estate was sought to beinformed about the impending inspection of the new buildingsconstructed without permission, to be conducted on 31.5.2007 at 9.30am and the Eatate Manager was directed to co-operate with the same. 1.7.The original Notice was produced along with the file inwhich an endorsement is found to the effect that when the said letterwas sought to be served, the petitioner Estate refused to receive thesame and signatures of the two witnesses (who were the formerPanchayat Assistant and Basic Health Servant) were also affixed. Itwas, thereafter, the entire dispute started between the parties. https://hcservices.ecourts.gov.in/hcservices/

2.History of the confrontation:-2.1.While the claim of the petitioner was that there was anillegal trespass into the Estate by certain officials including therespondents, it is stated that an inspection was conducted on31.5.2007 by a team comprising of various officials which includes thePresident of the Panchayat, Village Administrative Officer, Tahsildar,Block Development Officer, Revenue Divisional Officer, Coonoor,Assistant Director, Town Planning and Kothagiri Panchayat UnionChairman and Kothagiri Panchayat Union Member of Ward II.2.2.The original file was produced by the respondent State inrespect of W.P. Nos. 20336 and 20337 of 2007. It is seen that arepresentation dated 19.5.2007 was addressed to the Chief Minister bystating that they could not conduct Grama Sabha meeting on 01.5.2007at Anna Nagar hamlet. It was signed by the Chairman of the KothagiriPanchayat Union, the President of the Kodanad President and a WardMember II. The said representation was received by the DistrictCollector, Udhagamandalam and forwarded to the Government with acovering letter dated 20.5.2007. Thereafter, another letter dated19.5.2007 was sent by the Chairman of the Kothagiri Panchayat Unionand also General Council Member of the DMK political party in hisletterhead, to the Chief Minister of Tamil Nadu stating that thepresent owners have cheated the Government by not paying the StampDuty while purchasing the Estate and that they are building a bigbungalow with 90 rooms and they are preventing the people from usingthe Estate Road to go to Anna Nagar hamlet. He requested theGovernment to take action and punish the persons responsible for thesame. 2.3.It was thereafter, by D.O. Letter dated 21.5.2007, theSecretary to Government, Public Department, informed the Collector ofthe Nilgiris District to take necessary action and also requested himto be in touch with the Department concerned and to take necessaryremedial measures. A further D.O. letter of the same date was sentto the District Collector informing him that there are buildingsconstructed without getting clearance from the Hill Area ConservationAuthority [for short, 'HACA'] in the Kodanad Estate owned in thebenami name of the former Chief Minister Ms.J.Jayalalitha and he wasalso informed that any construction exceeding 300 square metresrequires clearance from the HACA. The District Collector, whohimself was a member of the HACA and also the Chairman of the AAACommittee, was told to bring it to notice of the HACA any violation,deviation or non-compliance with the procedure stipulated by the HACAor the Government. He was also permitted to inspect the premises aswell as to check the various points and send a detailed report to HACAand other auhtorities. https://hcservices.ecourts.gov.in/hcservices/

2.4.On the same day, the Director of Town and Country Planningaddressed to the Secretary to Government, Housing and UrbanDevelopment Department informing that the Kodanad Village Panchayatwas coming under an Hilly Area and the development in the saidPanchayat should be regulated as per the Tamil Nadu Hill Areas SpecialBuilding Rules, 1981 and the Tamil Nadu Panchayat Building Rules,1997. The Secretary was also informed that for buildings of morethan ground and first floor, buildings housing more than two families,commercial and office buildings of more than 300 square metres area,etc. permission should be obtained from the HACA. The Governmentalso notified that the Special Building Rules will apply to thePanchayat Union and AAA Committee must give specific recommendationsto the HACA and after getting clearance from the HACA, buildinglicence will be given by the executive authorities. He alsoinformed the Regional Joint Director of the Town and Country Planning,Coimbatore that if any proposal is was received in this regard fromthe Panchayat President, the same will be placed before the AAACommittee and HACA and also to send a factual report consulting theDistrict Collector.2.5.In response to these queries, the District Collectorinformed the Secretary to Government, Housing and Urban DevelopmentDepartment, by a letter dated 22.5.2007 that an inspection by theAdditional Collector (Development) and Chairman of AAA Committee wasorganised on 22.5.2007 and the two Inspection Reports given by theAdditional Collector (Development) and also the report submitted bythe Joint Director and Deputy Director (in charge) of the Town andCountry Planning Department were also sent. In another InspectionReport dated 22.5.2007, it was stated that when the inspection teamcomprising of the Panchayat President, Village Administrative Officer,Revenue Divisional Officer, Coonoor, Block Development Officer andDeputy Director of Town Planning, went to inspect the buildingconstructed without proper permission, they were stopped at the gateand they were told that the details sought for by them will be givento them and they were not allowed to go inside the Estate because atthat time, a V.V.I.P. was staying in the Estate and for securityreasons, they were refused entry. 2.6.Again, on 29.5.2007, the Additional Collector informed theDistrict Revenue Officer, Udhagamandalam, that when they went to theEstate on 28.5.2007 and 29.5.2007, the team of officials could notinspect the building since the Estate did not permit them forvarious reasons. Therefore, the assistance of the District RevenueOfficer – cum - Executive Magistrate was sought, for carrying out theinspection. In this regard, the District Revenue Officer – cum –Additional District Magistrate, Udhagamandalam, by a letter dated29.5.2007, permitted the Additional Collector (Development),Udhagamandalam, Regional Joint Director, Town and Country Planning,Coimbatore and their survey team to measure the property and do survey https://hcservices.ecourts.gov.in/hcservices/ works in the properties in Patta Nos. 517, 531 and 553 of Kodanad TeaEstate in exercise of his powers conferred under the Tamil NaduSurvey and Boundaries Act, 1923. 2.7.Once again, the Tahsildar, Kothagiri, informed the DeputySuperintendent of Police, Udhagamandalam, that since they wanted tocarry out building survey work in the Kodanad Estate on 30.5.2007,they need police protection with top police officials. The DistrictRevenue Officer – cum - Additional District Magistrate,Udhagamandalam, also gave a direction to the Revenue DivisionalOfficer – cum – Sub-Divisional Magistrate, Coonoor, that he wasrequested to make necessary bundobust arrangements in consultationwith the Superintendent of Police, The Nilgiris, to carry out thesurvey and other related work in the Kodanad Tea Estate on 31.5.2007.It was thereafter, the notice dated 30.5.2007 was sought to be servedand it was stated that the same was refused to be received. 3.Entry into the Estate:-3.1.In the meanwhile, the petitioner Management sent a telegramto the District Revenue Officer asking him to inform them as to underwhat provision of law and authority, they are descending on the Estateand was also asked to stop their coercive activities and they wererequested not to obey political diktats. It transpires that despitethe objection by the petitioner Estate, the team of officials referredto above, visited the Estate on 31.5.2007 and took survey of thebuilding and structures in the Estate and submitted a report on thesame day, viz., 31.5.2007. It was stated by them that they wereprevented by the Estate workers and the Superintendent of Policecleared them without any force. After crossing the main entry andwhen proceeded for about 100 Mts. into the estate premises withbundobust, they were again stopped at the second gate by a group ofpersons. 3.2.Then, after crossing the barrier, the team went to thebuilding and recorded the actual measurement of the buildings fromoutside. It was also stated the structure of the building seems tobe luxurious. The report submitted by the team was signed by thePanchayat President, Kodanad Village Panchayat, Tahsildar, Kothagiri,Deputy Director of Town and Country Planning, Village AdministrativeOfficer of Kodanad, two officials of Town and Country Planning staff,Revenue Divisional Officer, Coonoor Division and Field Surveyor. 3.3.The Inspection report contained the following details: https://hcservices.ecourts.gov.in/hcservices/ Details regarding construction work (New Building)Sl.No.Details ofconstruction workLand surveyExtent ofbuilding(inSq. Mts.)Present stage1.ResidentialBungalow Cellalr floorGround FloorFirst Floor65 (New No.168)ResidentialBungalow1205.851339.871205.85Construction workcompletedConstruction workcompletedConstruction workcompletedConstruction workcompleted2Guest House 16583Construction workcompleted3Guest House 265106Construction workcompleted4Watchman quarters6550.41Construction workcompleted5Godown and Watchmanshed219/1 (NewNo. 160/4)36+36 =72.00Construction workcompleted6Lake View Guesthouse219/1 (NewNo. 160/4)230.69Construction workcompleted7Office Building60Construction workcompleted3.4.The petitioner also sent two telegraphic notices to theAdditional District Collector, Project Director and Chairman of AAACommittee stating that he had attempted to trespass into the Estate.When demanded for an written order, he did not give the same. Whenthey came as a team, they had also brought newspaper men (includingpeople from electronic media). He was also asked to furnish the legalprovisions under which such activities were carried out in the Estate.3.5.It was on the strength of this report, the PanchayatPresident informed the petitioner Estate by a letter dated 04.6.2007that when an inspection was conducted on 31.5.2007, no building plansand permission or approved plan were submitted to him. Therefore, itwas presumed that the building was not authorised. Unless the owneror the persons in enjoyment of the property or their authorisedrepresentative shows the plan and permission, he will presume thatthey have nothing to offer in terms of Rule 34 of the Tamil NaduPanchayat Buildings Rules Act read with Section 217 (j) of theDistrict Municipalities Act, 1920 and action will be taken. Sevendays time was given in the said notice for submission of the said plan https://hcservices.ecourts.gov.in/hcservices/ and permission. 3.6.In the notice after extracting the description of sixbuildings, it was stated in Tamil by the Kodanad Panchayat Presidentwhich, if translated, will read as follows:-"Construction work will have to be started only after getting abuilding licence in terms of the Tamil Nadu Panchayats Building Rules.But it is clear that you have not obtained any permission.""During the year 1995, Mrs. Radha Venkatachalam applied forlicence for construction of residential building under the DistrictMunicipalities Act and got Government Orders in G.O. Nos. 67 and 68 on17.3.1995 and obtained permission for the same in Survey Nos. 168(Field No. 4) Bancaad Division and 159 Warbrecan Division respectivelyat Kodanad Village, Kothagiri Panchayat Union approximatedly to anextent of 2900 sq. mts." "However, after obtaining the Government order, Tmt. RadhaVenkatachalam did not take any further steps through the executiveauthority as per law and no approval for the building plan wasobtained and no licence fee was paid and also no construction work wascarried out in that land. The land in which permission was obtainedand the present land in which buildings were constructed, were indifferent lands.""In terms of Section 217(f) of the Tamil Nadu MunicipalitiesBuilding Rules and Tamil Nadu Municipalities Hill Areas BuildingRules, if the work was not begun, after obtaining building approval,within one year, the said licence will lapse. After recording thesame, he came to the conclusion to issue notices under Section 31(4)and 32(4) of the Panchayats Act."4.Show Cause Notice dated 05.6.2007:-4.1.Once again, another notice dated 05.6.2007 was sent by thePanchayat President informing the details of the structures found inthe Estate as per the inspection (already referred to above). Heinformed that in terms of G.O. No. 44 Planning and Development (TC II)Department dated 02.01.1990 read with G.O. No. 49 Housing and UrbanDevelopment Department dated 24.4.2003, in respect of hill areas, forany construction beyond 300 sq. mts., permission should be obtainedfrom the HACA and before that, the plan should be submitted to theAAA Committee and only after getting plan approval with recommendationfrom the concerned Committee, proposal should be sent in terms of Rule4 of the Tamil Nadu Panchayat Building Rules. Only after getting thebuilding licence, construction can be started in terms of the TamilNadu Panchayat Building Rules. https://hcservices.ecourts.gov.in/hcservices/

4.2.According to him, the buildings mentioned in the tabularstatement have been completed and that it was stated that buildingwork in respect of one building is still going on and it was asked asto whether the approval was obtained for all the buildings and as towhether the buildings were constructed in terms of the Rules and sincethe same was not replied, it was presumed that such Rules were notfollowed while constructing such buildings. 4.3.Therefore, the petitioner was directed to submit thebuilding plan, topo sketch, approval obtained for the building planand the documents relating to ownership of the land within seven dayson receipt of the notice dated 05.6.2007. Till such time suchdetails are furnished and a decision is taken, they were advised tostop new constructions. If such documents are not furnished withinthe stipulated period, it will be presumed that these buildings willbe construed as an unauthorised construction and legal steps will betaken. It was also stated that the said notice was given in termsof Rules 32 and 34 of the Tamil Nadu Panchayat Building Rules. 5.High Court was approached:-5.1.As soon as this notice was received, the petitioner filedW.P. No. 20034 of 2007 and challenged the Show Cause Notice.Thereafter, W.P. No. 20336 of 2007 was filed seeking for a Declarationdeclaring that the inspection carried on 31.5.2007, when the officialrespondents 3 to 7 therein have forcibly entered into the KodanadEstate, was not authorized or enforceable under the Tamil NaduPanchayats Act, 1994 and the Rules framed thereunder.5.2.On the same day, the petitioner filed another writ petitionbeing W.P. No. 20337 of 2007 seeking for a Declaration declaring thatthe proviso to Rule 4(1)(d) of the Tamil Nadu Panchayats BuildingRules, 1997 as invalid, void, excessive to the rule making powervested in Section 242 of the Tamil Nadu Panchayats Act, 1994 and alsobeing repugnant to Articles 14, 19(1)(e) and (g) and 21 of theConstitution of India.5.3.In W.P. No. 20034 of 2007, a counter affidavit dated22.6.2007 has been filed by the Kodanad Panchayat President. In W.P.No. 20336 of 2007, the District Collector of The Nilgiris District hasfiled a counter affidavit on 18.6.2007. A counter affidavit dated19.6.2007 was filed in W.P. No. 20337 of 2007 on behalf the ChiefSecretary to Government and Secretary of Rural Development Departmentand an additional counter affidavit dated 31.7.2007 was filed.Thereafter, by an order dated 12.7.2007, panchayat minutes was orderedto be produced in original before this Court.5.4.Even when before all these writ petitions were being heard,the Kodanad Panchayat President issued a notice dated 10.9.2007 https://hcservices.ecourts.gov.in/hcservices/ purporting to be under Rule 34 of the Tamil Nadu Panchayat BuildingRules informing that he considers that building work was carried onwithout the permission of the executive authority and, therefore, theowners of the building were directed to demolish those buildings interms of his provisional order issued under Rule 34(i)(iii) of theBuilding Rules. Pursuant to the said provisional order issued underRule 34(1) of the Building Rules, a further show cause notice wasgiven to the petitioner Estate as to why the provisional order shouldnot be confirmed and the petitioner was asked to show cause and submitexplanation within 15 days. It is against this order dated10.9.2007, W.P. No. 30671 of 2007 has been filed.5.5.In W.P. No. 30671 of 2007, a counter affidavit was filed inOctober 2007 by the President of the Kodanad Village Panchayat. Hewas named in his personal capacity as the third respondent.Rejoinder affidavit was also filed to the said petition and set ofdocuments were produced. 6.Petitioner's challenge summed up:-6.1.After the matter having been directed to be posted beforethis Court by the orders of the Hon'ble Chief Justice, all these fourwrit petitions were clubbed together and with the consent of thelearned counsel appeared for the parties, the writ petitions weretaken for final disposed. The respondents waived service.6.2.Heard the arguments of Mr. G. Rajagopal, learned SeniorCounsel leading Mr. A. Navaneethakrishnan appearing for the petitionerEstate and Mr. G. Masilamani, learned Advocate General appearing forMr. G. Sankaran, learned Special Government Pleader representing theofficial respondents and have perused the records.6.3.Mr. G. Rajagopal submitted that out of seven buildings notedin the show cause notice dated 05.6.2007, six buildings are havingextent of less than 250 sq. mts. and, therefore, the relevant provisoto Section 4(1)(d) of the Building Rules will not apply. Even asearly as 1995, the Government had granted approval in terms of therelevant provisions and, therefore, raking up old issues which areconcluded already, is only with a view to wreak vengeance on thepetitioner Estate. He also submitted that for entering the Estateon 31.5.2007, no notice was given and the officials have trespassedinto the Estate and collected some materials behind the back of thepetitioners and without their authorisation. Therefore, the resultantinspection will be vitiated. He also brought the attention of thisCourt to the letter given by the Panchayat President wherein it isstated by him that an inspection team will be visiting the Estate on05.6.2007. But he had claimed that they have visited the Estate on31.5.2007 itself. This itself will show strong suspicion over theconduct of the respondents. https://hcservices.ecourts.gov.in/hcservices/

6.4.Further, he submitted that there seems to be more than oneforce working against the petitioner Estate just because one of thepresent owners of the Estate is the former Chief Minister of the TamilNadu, who is a staunch political rival of the present party in power.He also submitted that the present Government is using all their mightwith a view to harass her. Therefore, the entire exercise was malafide and a clear abuse of power vested on the Government. 6.5.He further submitted that there are variations between thenotices dated 05.6.2007 and 10.9.2007. The buildings in the Estatehave been properly constructed with approved plans and necessarysanction and they have also paid the licence fee and also thebuildings were subsequently assessed to House Tax, which are alsobeing paid by them. They have also enclosed copies of the variousreceipts in the typed set of papers. When the Estate is law abidingand complying with all the legal requirements, the Panchayat Presidenthas been made as a tool to harass the petitioner Estate. Further,he also drew the attention of this Court to the press statementsissued on behalf of the State Government attacking the former ChiefMinister personally by spending huge amounts on press advertisementspaid out of the public coffer for such blatant political propaganda.He also questioned the bona fide of the Village Panchayat President,who was using his powers under the Panchayats Act for obliquepurposes. Even before his mission for demolition, he wrote to theChief Minister of Tamil Nadu on 19.5.2007 along with two ruling partypoliticians complaining about the Estate and its inmates and thuswanted to please his political masters. The petitioners have filedall the approved drawings in respect of the buildings in whichconstruction has been carried out long ago. 6.6.The learned Senior Counsel referred to the conduct of thePanchayat President, who after issuing the impugned order dated10.9.2007, issued a press release stating that the buildingconstructed by the petitioner was an huge one and there was no suchbig building in the Nilgiris District and the construction activitycarried on by the petitioners has created dangerous atmosphere for theenvironmental and geological safety of the Nilgiris District. Thatin respect of details sought for regarding the plan and buildingpermission, till the date of notice, it was stated in the pressrelease that no such plans were forthcoming and that he had alreadygiven a notice for demolishing the illegal construction in whichunfortunately a big responsible leader was residing. It was furtherfound in the press release that it was constructed contrary to theRules. Learned Senior Counsel stated that such conduct of thePanchayat President, being the executive authority, is blatantlypolitical and he was acting as a pawn in the hands of certainpolitical forces. He further submitted that at the time when thebuildings were constructed, proper sanction was obtained in terms of https://hcservices.ecourts.gov.in/hcservices/ the provisions of the District Municipalities Act and the relevantBuilding Rules found therein, which were extended to the Panchayats byvirtue of Section 5 of the Panchayats Act read with the Notificationdated 04.6.1993 issued by the District Collector.6.7.Learned Senior Counsel further submitted that when the thestand of the petitioners was that the plans have been properlyapproved by the AAA Committee, the question of going into the vires ofRule 4(1)(d) of the Building Rules may not arise. Alternatively, thelearned Senior Counsel argued that the District Municipalities Actdefines the term 'Hill Station' under Section 3(10), which statesthat an Hill Station is a place specified in Schedule II and includesany other place which may be notified by the [State Government] as anhill station. Ootacamund, Coonoor in Nilgiris District andKodaikanal in Madurai District have been notified as Hill Stations inSchedule II and, therefore, in respect of buildings constructed onlyin those areas, the application of Chapter X A of the DistrictMunicipalities Act will arise. If the District Collector extendsthe provisions of Chapter X of the District Municipalities Act by anotification under Section 5, then it has to be understood that theKodanad Panchayat Union will not come within the Special BuildingRules coming under Chapter X A because it is not an hill area in termsof Schedule II. In any event, the learned Senior Counsel contendedthat if a delegated authority is empowered to extend Rules havingsweeping powers on their own discretion, then it is an excessivedelegation.6.8.Learned Senior Counsel further submitted that the Tamil NaduPanchayats Building Rules 1997 was brought into force on 18.12.1997and before that, the petitioners were covered only by the notificationdated 01.8.1993 published in the Nilgiris District Gazette issued bythe authority of the District Collector and that alone will apply andhence, the buildings of the petitioners do not come within thePanchayats Building Rules, 1997. If this is not accepted, thenRule 4(1) of the Tamil Nadu Panchayat Building Rules suffers fromexcessive delegation as it gives arbitrary powers to the delegatedauthority. In Tamil Nadu, even though there are many other hillstations, this particular notification singles out only the villagesin the Nilgiris District alone and, therefore, it is discriminatory.He also submitted that for issuing the impugned notices dated05.6.2007 and 10.9.2007, there was no credible material in the handsof the Panchayat President and he cannot embark upon an enquiry to tryto fish out information from the petitioners and then decide whetherhe wants to exercise Rule 34 of the Tamil Nadu Panchayat BuildingRules or not.6.9.Learned Senior Counsel submitted that a perusal of theimpugned order clearly shows that there is no application of mind. Ifit is now conceded that the buildings were authorised by the https://hcservices.ecourts.gov.in/hcservices/ Government Order and out of seven buildings, six do not come underRule 4(1)(d) of the Building Rules, then the notice incorporating thateven the buildings not coming under the wrath of Rule 4(1) were alsostated to be constructed without authorisation and were contrary toRules, must necessarily be a statement made without any factual basisand it will clearly show the mala fide on the part of the PanchayatPresident. In any event, if a notice covers seven buildings andeven as per the admission of the respondents, six buildings are notcoming within the wrath of Rule 34, then the entire notice issued bythe Panchayat President should be set aside since it was based uponmisapprehension and without any legal foundation. He also submittedthat the entry by the team of officials into the Estate on 31.5.2007using brutal force was a criminal trespass by the officials and thePanchayat President did not invoke any power vested on him under thePanchayats Act and any material collected in the absence of thepetitioners, cannot be used for any further legal proceedings as it isa tainted material. The said inspection was done under theauthority of the Panchayat. But he was one among the crowd of higherbureaucrats who descended on the Estate after being told to do so fromthe State Government.6.10. Further, even in respect of one building, the factthat they have measured from outside, calculating the plinth area, isnot enough to state the extent of the cellar area or the first floorof the said building and a statutory notice cannot be based uponassumptions and presumptions. He further submitted that measuringthe building from outside cannot be calculated as a plinth area or theextent of any building as it may not count the open spaces within thebuilding and it cannot be a safe bet for issuing such notice.Further, he submitted that the respondent Panchayat President cannotpass a provisional order – cum – show cause notice and it shows thathe has a pre-determination and the basis for arriving at theprovisional conclusion was not on any credible materials. 6.11. The learned Senior Counsel further submitted that thePanchayat President had not only trespassed into the Estate andillegally gathered materials which formed part of the show causenotice but during the relevant period, i.e., after issuance of thefirst show cause notice, he gave evidence before the Sub-DivisionalMagistrate against the petitioners in respect of the Estate Road andshowed his animus. Even after issuing the show cause notice duringJuly 2007, he gave evidence before Sub-Divisional Magistrate, Coonoor.Again on 20.9.2007, he deposed as P.W. 1 before the Sub-DivisionalMagistrate in respect of case relating to access through the EstateRoad, which formed the basis for the Sub-Divisional Magistrate issuingan order under Section 133 Cr.P.C. This personal conduct of thePanchayat President clearly shows that he was biased and pre-determined and he ought not to have issued the impugned notice withmala fide motive. In that view of the matter, the learned Senior https://hcservices.ecourts.gov.in/hcservices/ Counsel wanted all the writ petitions to be allowed and apart fromsetting aside the impugned orders, also the Rule 4(1)(d) of the TamilNadu Panchayat Building Rules to be held ultra vires of the Tamil NaduPanchayats Act and the Constitution.7.Respondents justify their actions:-7.1.Per contra, the learned Advocate General representing therespondents first took up the contention regarding the vires of Rule 4(1)(d) of the Building Rules and stated that the Rule has gotuniversal application and covers the entire Nilgiris District, and,therefore, it is not as if the petitioner alone has been singled outfor any special treatment. Secondly, even before the Rules werenotified under the Panchayats Act, the Rules framed under theMunicipalities Act were invoked by exercise of power under Section 5of the Panchayats Act and the Rules framed under the DistrictMunicipalities Act as well as the Panchayats Act are having similarfeatures. The Rules relating to hill areas were framed with a viewto preserve the hill areas and protect them from environment hazardsas well as geological safeguards and the Rules are having sufficientguidelines. Both the AAA Committee and the HACA were presided overby high officials and, therefore, any application made will bescrutinised by the AAA Committee and the HACA and proper decisionwill be taken. Even if any orders are passed by the executiveauthority of the Panchayat, the same is appealable to the Inspector ofPanchayats subject to further judicial review by this Court and,therefore, the Rule cannot be held to be arbitrary or suffers fromexcessive delegation.7.2.Secondly, he submitted that the argument of the petitionersthat Schedule II of the Act covers only two Municipal Towns, viz.,Ootacamund and Coonoor in Nilgiris District and, therefore, even ifthe provisions of Chapter X A of the District Municipalities Act areinvoked together with the Rules framed thereunder, that will not beavailable to a Panchayat, must only stated to be rejected. Underthe Panchayats Act, delegation has been given to the Government aswell as the District Collector to invoke the provisions of theDistrict Municipalities Act through a Gazette Notification and thisNotification has been issued as early as in the year 1993 covering thePanchayat areas coming under the Nilgiris District. It is not as ifthe Kodanad Village alone is covered by the Notification but allVillage Panchayats, where urbanisation and construction activities arebound to take place, are covered under the Notification. WhenSchedule II is prescribed to the District Municipalities Act, it canonly cover the Municipalities because the said Act dealt only withMunicipalities and, therefore, Schedule II of the Municipalities Actnot mentioning any Panchayat, does not change the law in this regard.By virtue of the power exercised under Section 5 read with Section 242of the Tamil Nadu Panchayats Act, other hill areas in the district https://hcservices.ecourts.gov.in/hcservices/ have been covered and no exception can be taken. Learned AdvocateGeneral also submitted that the Building Rules are more or less basedupon the Rules framed under the Municipalities Act and no specialfeatures have been added and they have not been questioned for morethan 15 years and it is too late for the petitioners to question thesame just because they are put to inconvenience. No other case hascome up before this Court challenging the Rules. The Rules areintended to safeguard the pristine glory of the hill areas in theNilgiris district. Therefore, the challenge to the Rules will haveto necessarily fail.7.3.Thereafter, the learned Advocate General submitted thateither by the Rules framed under the District Municipalities Act(which are applicable by virtue of notification under Section 5 of thePanchayats Act) or by the Rules framed under the Panchayats Act itselfafter 1997, the petitioner Estate is covered by the Rules and for anyinfraction to the Rules, action can be taken against them forviolation of the Rules. There is no excessive delegation under theAct and the Rules are intra vires of the Panchayats Act as well asArticles 14, 19 and 21 of the Constitution and, therefore, thepetitioner Estate cannot escape from the invocation of the Rules.He also submitted that when innocuously details were sought for fromthe Estate, it is they who were stonewalling from providing anyinformation relating to the Estate which they are bound to provide, ifa demand is made by the executive authority of the Panchayat. If thepetitioners have nothing to hide, they can provide the informationsought for by the Panchayat and in the absence of their information,the executive authority of the Panchayat decided to inspect the Estateand even that was sought to be prevented by mobilising the Estateworkers. 7.4.It was thereafter, the executive authority and the DistrictCollector were directed to bring in reinforcement from conducting asafe inspection. He also submitted that the executive authority hasright to inspect any property in the Panchayat areas, if he is of theopinion that there were violations of the Building Rules or thatthose buildings were constructed without licence, after due notice tothe parties. The notice was served on the petitioner Estate andwhen they refused to receive, it was affixed on the Estate gate asprovided in law. Even if the inspection was carried out by measuringthe plinth area from outside the buildings, that was enough forfinding out the violations of Buildings Rules while constructingvarious buildings in the Estate. The inspection was lawful and thematerials gathered during the inspection can certainly form basis ofthe show cause notice. He also submitted that the Courts have heldthat even materials collected by illegal means cannot be rejected.It is one thing to say that the materials were collected unlawfullybut the other thing is the admissibility of evidence of such materialsgathered. In this context, he referred to the decision of the Supreme https://hcservices.ecourts.gov.in/hcservices/ Court in Pooran Mal v. The Director of Inspection (Investigation),New Delhi and others [1974 (1) SCC 345].7.5.Learned Advocate General submitted that when the petitionershad not given any explanation to the show cause notice dated05.6.2007 based upon inspection made on 31.5.2007, the power underRule 34 of the Buildings Rules was invoked by the Panchayat Presidentand it is for the petitioners to give reply to the same. There wasnothing wrong in the Panchayat President in giving a provisional order– cum – show cause notice, which are also contemplated under theBuildings Rules. He also submitted that the materials produced bythe petitioners in the Court may show that six out of seven buildingsmay not come within the mischief of the Rule but, yet, the show causenotice can still stand with reference to the seventh building, whichwas constructed unlawfully and contrary to the Building Rules.There is no bias in the action taken by the executive authority.Being an elected representative, he cannot shut his eyes from takingappropriate action. He also denied the two letters dated 30.5.2007and 31.5.2007 said to have been addressed by the Panchayat Presidentto the Assistant Director of Local Fund Audit. If the petitionershave sufficient materials which they have produced before this Court,there is nothing wrong in their answering the show cause notice issuedby the authority. He also submitted that the petitioners areprecluded in challenging the Rules after obtaining G.O. Nos. 67 and 68dated 17.3.1995 from the Government and they are prevented to put suchconstructions on the basis of issue estoppel.7.6.He also submitted that this Court under Article 226 of theConstitution will not interfere with the show cause notice and this isnot a fit case where the power exercised to be nibbed in the bud.7.7.The learned Advocate General further submitted that thepress report issued by the State Government at the state expenses wasonly to clarify the people because newspapers were carrying out write-ups and it was the duty of the State to clarify the real position.He also submitted that there was nothing wrong in the PanchayatPresident granting a press release and it cannot be said that he wasbiased in issuing the notice under Rule 34 of the Tamil Nadu PanchayatBuildings Rules.8.Statutory Provisions scanned:-8.1.In order to appreciate the rival contentions made by theparties, it is necessary to set out the relevant statutory provisionsand notifications quoted at the bar.8.2.The petitioner Estate had obtained two Government Orders inthe year 1995 relating to grant of approval to construct buildings inthe Estate and they may be reproduced for better appreciation of the https://hcservices.ecourts.gov.in/hcservices/ facts.The Government Order in G.O. (D) No. 67, Municipal Administrationand Water Supply Department dated 17th March 1995 reads as follows:"Tmt. Radha Venkatachalam, Kodanad Tea Estate,Kothagiri Taluk, The Nilgiris District has applied forissue of licence for the construction of a residentialbuilding in S. No. 168 (Field No. 4) Bancaad Division,Kodanad Village, Kothagiri Panchayat Union, TheNilgiris District.2.The request of Tmt. Radha Venkatachalam hasbeen placed before the Architectural and AestheticAspects Committee for its consideration andrecommendation and the Committee at its meeting held on15.3.1995 has recommended the request of the individualto grant permission subject to the condition that sheshould plant adequate number of shade bearing trees.3.The Government after careful examination,accept the recommendation of the Architectural andAesthetic Aspects Committee and accord permission toTmt. Radha Venkatachalam, Kodanad Tea Estate, KothagiriTaluk, The Nilgiris District for the construction of aresidential building in S.No. 168 (Field No. 4) BancaadDivision, Kodanad Village, Kothagiri Panchayat Union,the Nilgiris District, subject to the condition thatshe should plant adequate number of shade bearingtrees.4.The plans in original are returned herewith.The Director of Town and country Planning, Madras isrequested to acknowledge the receipt of the same early.(BY ORDER OF THE GOVERNOR)H.M. PANDEYSECRETARY TO GOVERNMENT" 8.3.The Government Order in G.O. (D) No. 68, MunicipalAdministration and Water Supply Department dated 17th March 1995 readsas follows:"Tmt. Radha Venkatachalam, Kodanad Tea Estate,Kothagiri Taluk, The Nilgiris District has applied forissue of licence for the construction of a residentialbuilding in S. No. 159 Warbrecan Division, KodanadVillage, Kothagiri Panchayat Union, The NilgirisDistrict. https://hcservices.ecourts.gov.in/hcservices/

2.The request of Tmt. Radha Venkatachalam hasbeen placed before the Architectural and AestheticAspects Committee for its consideration andrecommendation and the Committee at its meeting held on15.3.1995 has recommended the request of the individualto grant permission, subject to the condition that sheshould plant adequate number of shade bearing trees.3.The Government after careful examination,accept the recommendation of the Architectural andAesthetic Aspects Committee and accord permission toTmt. Radha Venkatachalam, Kodanad Tea Estate, KothagiriTaluk, The Nilgiris District for the construction of aresidential building in S.No. 159 Warbrecan Division,Kodanad Village, Kothagiri Panchayat Union, theNilgiris District, subject to the condition that sheshould plant adequate number of shade bearing trees.4.The plans in original are returned herewith.The Director of Town and country Planning, Madras isrequested to acknowledge the receipt of the same early.(BY ORDER OF THE GOVERNOR)H.M. PANDEYSECRETARY TO GOVERNMENT" 8.4.Since arguments had centred around the DistrictMunicipalities Act, 1902 regarding Hill Stations, the relevantprovision may be quoted. Section 3 (10) of the Tamil Nadu DistrictMunicipalities Act, 1920 and Schedule II read as follows:-"(10) 'Hill Section'. -- 'Hill station' means a placespecified in Schedule II and includes any other placewhich may be notified by the [State Government] as ahill station"SCHEDULE IILIST OF HILL STATIONS.[See Section 3 (10)]Ootacamund, the Nilgiri District.Coonoor, the Nilgiri District.Kodaikanal, [Madurai District].8.5.Before 1997 Tamil Nadu Panchayats Buildings Rules, the Rulesframed under the District Municipalities Act were made applicable bythe powers vested under Section 5 and Section 5 of the Tamil Nadu https://hcservices.ecourts.gov.in/hcservices/ Panchayats Act, 1994 reads as follows:"5. Extension of provisions of Tamil Nadu DistrictMunicipalities Act, 1920 or of any rules madethereunder.-- (1) The Inspector may, whether at therequest of the village panchayat or otherwise, bynotification, declare that any of the provisions of theTamil Nadu District Municipalities Act, 1920 (TamilNadu Act V of 1920) or of any rules made thereunder,shall be extended to, and be in force in, the panchayatvillage or any specified area therein.(2)The provisions so notified shall be construedwith such alterations (not affecting the substance) asmay be necessary or proper for the purpose of adaptingthem to the panchayat village or specified areatherein.(3)Without prejudice to the generality of theforegoing provisions, all references in the provisionsso notified to a municipal council or the chairman orthe executive authority thereof shall be construed asreferences to the village panchayat or the president orthe executive authority of the village panchayat andall references to any officer or servant of a municipalcouncil as references to the corresponding officer orservant of the village panchayat, and all references tothe municipal limits as references to the limits of thepanchayat village or specified area therein, as thecase may be."8.6.Under Section 242(2) of the Tamil Nadu Panchayats Act, 1994,Tamil Nadu Panchayats Buildings Rules, 1997 were formed and notifiedto come into effect from 18.12.1997. Rule 4(1) of the Tamil NaduPanchayats Buildings Rules, 1997 impugned in W.P. No. 20337 of 2007reads as follows:-"4. Application for approval of sites for buildings andhuts.-- (1) Every person who intends, to construct orreconstruct or alter or add to a building or to a hutshall submit an application to the executive authorityfor the approval of the site and for permission toexecute the work, in the Form specified in Appendix–B,with such variations as circumstances may requirewhich shall be accompanied by--(a)a site plan (in triplicate) of the land onwhich the building or hut is to be constructed,reconstructed or altered or added to as far as may be https://hcservices.ecourts.gov.in/hcservices/ necessary, complying with the requirements specified inAppendix-C; (b)a plan or plans (in triplicate) of thebuilding or hut to be constructed, reconstructed oraltered or added to as far as may be necessary,complying with the requirements specified in Appendix–D; (c)a specification (in triplicate) as far as maybe necessary complying with the requirements specifiedin Appendix–E; and(e)the information as to the purpose for whichthe building or hut is proposed to be constructed,reconstructed or altered or added to:[Provided that the construction or reconstructionor addition or alteration to residential houses, allsuch other public buildings like commercial buildings,hotels, resorts and factory buildings exceeding aplinth area of 250 square metres in the panchayats ofNilgiris District shall be approved by the executiveauthority after obtaining the permission of theCommittee for Architectural and Aesthetic Aspectsheaded by the Collector of Nilgiris District]."8.7.Since much reliance was based upon the Rules relating toinspection by the Executive Authority, the relevant rule in thisregard may be reproduced. Rules 2(1) to (3) of the Tamil NaduPanchayats (Restrictions and Control on Powers of Entry andInspection) Rules, 1999 read as follows:"(1)no entry shall be made by the executiveauthority or commissioner or Secretary, as the case maybe, or any person authorised by him between sunset andsunrise; (2)no dwelling house, or any part of a publicbuilding used as a dwelling place, shall be enteredinto by the executive authority or commissioner, orsecretary, as the case may be, or any person authorisedby him, without the consent of the occupier thereof,unless the said occupier has received at least sixhours previous notice of the intention to make suchentry; (3)sufficient notice shall be given by theexecutive authority or commissioner, or secretary, asthe case may be, or any person authorised by him, in https://hcservices.ecourts.gov.in/hcservices/ every case when any premises may otherwise be enteredwithout notice under clause (2) of rule 2(3) to enablethe inmates of any apartment appropriated to women tomove to some part of the premises where their privacymay be preserved;" 8.8.Since lack of proper notice was complained by thepetitioner, the relevant rule relating to manner of publication ofnotice may be quoted. Rule 6 of the Tamil Nadu Panchayats (Manner ofPublication of Notification or Notice and Manner of Service ofDocuments to the Public) Rules, 2000 reads as follows:"6. Manner of service of document or notice other thana notice of the meeting.-- (1) When any document or notice other than a noticeof the meeting is required by the Act or any rules orbye-law or regulation or order made thereunder, to beserved on or sent to any person, the service or sendingthereof shall be effected in the manner specified belowand a record of service maintained in the office of thevillage panchayat or panchayat union council ordistrict panchayat, as the case may be--(i)by giving or tendering the document or noticein person to the person concerned; (ii)if such person is not found, which shall berecorded by the person deputed for effecting theservice, by giving or tendering the same to an adultmember or servant of his family; or by leaving suchdocument or notice securely at a conspicuous place, athis last known place of abode or business, which shallbe specified in the record of service; or (iii)if such person is reported to be notresiding in the village and his address elsewhere isknown to the executive authority or the commissioner orsecretary, as the case may be, by sending the same byregistered post with acknowledgment due; or (iv)if none of the means aforesaid is available,by affixing the same in some conspicuous part of suchplace of abode or business.(2)The manner of service specified above shall betried one after another in the above order and not inany other order." https://hcservices.ecourts.gov.in/hcservices/

9.Legal Authorities cited by the learned Advocate General:-9.1.The learned Advocate General relied upon the following threedecisions of the Supreme Court for the purpose of showing that thepower of the Court to interfere with the show cause notice islimited:-(i) State of Uttar Pradesh v. Shri Brahm DattSharma [1987 (2) SCC 179]; (ii) Special Director and another v. Mohd. GhulamGhouse [2004 (3) SCC 440]; and (iii) Muni Suvaratswami Jain S.M.P. Singh v.Arun Nathuram Gaikwad and others [2006 (8) SCC590] 9.2.He also relied upon the following four decisions of theSupreme Court in support of the proposition that the unauthorisedbuildings constructed in violation of the Rules will have to benecessarily dealt with severely:-(i)Municipal Corporation of the City of Ahmedabadv. Ben Hiraben Manilal [1983 (2) SCC 422];(ii)Palani Hill Conservation Council v. State ofTamil Nadu [1995 (2) Writ L.R. 737];(iii)Pleasant Stay Hotel v. Palani Hill ConservationCouncil [1995 (6) SCC 127]; and (iv)Piedade Filomena Gonsalves v. State of Goa andothers [2004 (3) SCC 445]9.3.The learned Advocate General further placed reliance uponthe decisions of the Supreme Court in Bhanu Kumar Jain v. ArchanaKumar and another [2005 (1) SCC 787] and Ishwar Dutt v. LandAcquisition Collector and another [2005 (7) SCC 190] for the purposeof raising the ground of issue estoppel. 9.4.He further submitted that the materials collected in theabsence of the petitioners cannot held to be illegal and it will notimpeach the admissibility of such evidence. For this purpose, herelied on the decision of the Supreme Court in Pooran Mal 's case(cited supra).9.5.For the purpose of showing that mala fide cannot be allegedagainst the Government in the absence of necessary parties before theCourt, the learned Advocate General relied on the following decisionsof the Supreme Court:- https://hcservices.ecourts.gov.in/hcservices/ (i)Swaran Lata v. Union of India [1979 (3) SCC165]; (ii)All India State Bank Officers' Federation andothers v. Union of India and others [1997 (9)SCC 151]; and(iii)Indian Railway Construction Co. Ltd. v. AjayKumar [2003 (4) SCC 579]In view of the above, it is necessary to deal with the relevant issuesraised in all the writ petitions.10.Whether the inspection carried on 31.5.2007 is authorised bythe Rules:-In so far as the question of vires of the Rule is concerned, ascorrectly contended by the learned Advocate General, the Rules areintended for covering the wider range of areas in the NilgirisDistrict and were issued to prevent environment degradation andecological disaster in a hill area and the Rules do not suffer fromany excessive delegation. Even before framing of the Rule, Section 5of the Panchayats Act authorised utilising the Rules framed under theDistrict Municipalities Act and the present Rule is almost identicalto the Rules framed earlier. So long as the Nilgiris District itselfis held to be hill area and the petitioner Estate is also comingwithin that hill area, no exception can be taken against theRule. Especially, Rule 4(1)(d) of the Buildings Rules is intended toprovide clearance from high level Committee, viz., AAA Committee,which consists of higher officers drawn from various Departments andcoupled with the fact that there is an appeal against the decision ofthe executive authority to the Inspector of Panchayats and judicialreview is also available. Therefore, the Rules cannot be said to beultra vires either the Act or the Constitution.11.Whether the inspection conducted on 31.5.2007 by theexecutive authority of the Panchayat was in accordance with law:11.1. The executive authority of the Panchayat has power toenforce the provisions of the Act under the Rules, which are validlymade under Section 242 of the Panchayats Act and his inspection powersare also provided under the Buildings Rules as well as Tamil NaduPanchayats (Restrictions and Control on Powers of Entry andInspection) Rules, 1999. Rule 2 of the said Rules puts restrictionson the Inspection and it states that without the consent of theoccupier, one cannot enter into the building and also it requires asix hours previous notice of the intention to make such entries. https://hcservices.ecourts.gov.in/hcservices/ Rule 3 also provides for a sufficient notice to be given by theexecutive authority. 11.2. In the present case, the attempt to affix notice dated30.5.2007 on the Estate premises is not supported by the Rules framedunder the Tamil Nadu Panchayats (Manner of Publication of Notificationor Notice and Manner of Service of Documents to the Public) Rules,2000. Rule 6 of the said Rules provides for method of serving anotice on any person and Rule 6(2) clearly states that the processshall be tried one after the other in the order indicated and not inany other order. In the present case, the document produced and theaffidavit filed in support of the said averment does not show thatsuch a method has been followed. Even the previous inspections saidto have been attempted on 20.5.2007, 22.5.2007 and 29.5.2007 also werenot authorised in terms of the Act. Therefore, the so-calledinspection conducted not only by the executive authority but by a widerange of officers drawn from other Departments without specifying thepurpose, clearly shows certain command performance from the higher-upsand it is not based upon any legal requirement under the BuildingsRules.12.Whether tainted or illegal material obtained behind the backof the owner can be used as basis of the Show Cause Notices dated05.6.2007 and 10.9.2007:12.1. Even though the learned Advocate General relied uponthe Pooran Mal's case (cited supra), it came to be considered by theConstitution Bench of the Supreme Court in the judgment in State ofPunjab v. Baldev Singh, [(1999) 6 SCC 172]. In this context, it isrelevant to refer to the following passages found in paragraphs 43 and45 to 47 of the judgment:Para 43:"The judgment in Pooran Mal case has to be considered inthe context in which it was rendered. It is a well-settled proposition of law that a decision is anauthority for what it decides and not that everythingsaid therein constitutes a precedent. The courts areobliged to employ an intelligent technique in the useof precedents bearing it in mind that a decision of thecourt takes its colour from the questions involved inthe case in which it was rendered."Para 45:"The judgment in Pooran Mal case therefore, cannot beunderstood to have laid down that an illicit articleseized during the search of a person, on priorinformation, conducted in violation of the provisionsof Section 50 of the Act can be used as evidence ofunlawful possession of the illicit article on the https://hcservices.ecourts.gov.in/hcservices/ person from whom that contraband had been seized duringan illegal search. Apart from the position that inPooran Mal case on facts, it was found that the searchand seizure conducted in the cases under considerationin that case were not vitiated by any illegality, theimport of that judgment, in the present context, canonly be to the effect that material seized duringsearch and seizure, conducted in contravention of theprovisions of Section 132 of the Income Tax Act cannotbe restrained from being used, subject to law, beforethe Income Tax Authorities in other legal proceedingsagainst the persons, from whose custody that materialwas seized by issuance of a writ of prohibition. It wasnot the seized material, in Pooran Mal case which byitself could attract any penal action against theassessee. What is implicit from the judgment in PooranMal case4 is that the seized material could be used inother legal proceedings against an assessee, before theIncome Tax Authorities under the Income Tax Act,dealing with escaped income. It is, therefore, notpossible to hold that the judgment in Pooran Mal case4can be said to have laid down that the “recoveredillicit article” can be used as proof of unlawfulpossession of the contraband seized from the suspect asa result of illegal search and seizure. If Pooran Maljudgment is read in the manner in which it has beenconstrued in State of H.P. v. Pirthi Chand (though thatissue did not strictly speaking arise for considerationin that case), then there would remain no distinctionbetween recovery of illicit drugs etc. seized during asearch conducted “after” following the provisions ofSection 50 of the NDPS Act and a seizure made during asearch conducted “in breach of” the provisions ofSection 50 of the NDPS Act. Prosecution cannot bepermitted to take advantage of its own wrong.Conducting a fair trial for those who are accused of acriminal offence is the cornerstone of our democraticsociety. A conviction resulting from an unfair trial iscontrary to our concept of justice. Conducting a fairtrial is both for the benefit of the society as well asfor an accused and cannot be abandoned. Whileconsidering the aspect of fair trial, the nature of theevidence obtained and the nature of the safeguardviolated are both relevant factors. Courts cannot allowadmission of evidence against an accused, where thecourt is satisfied that the evidence had been obtainedby a conduct of which the prosecution ought not to takeadvantage particularly when that conduct had causedprejudice to the accused. If after careful https://hcservices.ecourts.gov.in/hcservices/ consideration of the material on record it is found bythe court that the admission of evidence collected insearch conducted in violation of Section 50 wouldrender the trial unfair then that evidence must beexcluded. In R. v. Collins the Supreme Court of Canadaspeaking through Lamer, J. (as his Lordship, ChiefJustice of the Supreme Court of Canada then was) opinedthat the use of evidence collected in violation of theCharter rights of an accused would render a trialunfair and the evidence inadmissible. In the words ofthe Supreme Court of Canada:“The situation is very different with respect tocases where, after a violation of the Charter, theaccused is conscripted against himself through aconfession or other evidence emanating from him. Theuse of such evidence would render the trial unfair, forit did not exist prior to the violation and it strikesat one of the fundamental tenets of a fair trial.” (emphasis ours)Para 46:The opinion in Collins case has been relied upon by themajority of the Supreme Court of Canada in R. v.Stillman also.Para 47:"The question of admissibility of evidence, which maybe relevant to the question in issue, has thus to bedecided in the context and the manner in which theevidence was collected and is sought to be used."12.2. Therefore, it cannot be said that in all times, thematerials illegally collected can be used as admissible evidence andin the present case, the show cause notices dated 05.6.2007 and10.9.2007 are solely based upon the Inspection Report dated31.5.2007,which were illegally obtained and it cannot be made used of.13.When bias is attributed and proved against the ExecutiveAuthority, whether the notices issued by him can be set aside on thatground:13.1. In the present case, the executive authority of thePancahyat not only conducted an illegal inspection contrary to theRules but on 19.5.2007, he complained to the Chief Minister of TamilNadu by signing a representation along with two other politicalleaders about the Estate and its owners. He had issued a pressstatement condemning the petitioner Estate and its inmates [See: Pressrelease dated 20.9.2007]. He also deposed before the Sub-DivisionalMagistrate against the petitioner Estate in July 2007 and on 20.9.2007 https://hcservices.ecourts.gov.in/hcservices/ as P.W.1 and spoke against the Estate. 13.2. In this context, it is necessary to refer to thejudgment of the Supreme Court in Kumaon Mandal Vikas Nigam Ltd. v.Girja Shankar Pant [(2001) 1 SCC 182] and the relevant passages foundin paragraphs 23 and 25 may be usefully reproduced:Para 23:"Turning on to the issue of bias and for which theshow-cause notice-cum-charge-sheet has been set out inextenso, be it noted that the same does reflect a stateof mind...." Para 25:"Upon consideration of the language in the show-causenotice-cum-charge-sheet, it has been very stronglycontended that it is clear that the Officer concernedhas a mindset even at the stage of framing of chargesand we also do find some justification in such asubmission since the chain is otherwise complete."13.3. The House of Lords in the case of R. v. Bow StreetMetropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No. 2)[2000 (1) AC 119] held as follows:“… In civil litigation the matters in issue willnormally have an economic impact; therefore a Judge isautomatically disqualified if he stands to make afinancial gain as a consequence of his own decision ofthe case. But if, as in the present case, the matter atissue does not relate to money or economic advantagebut is concerned with the promotion of the cause, therationale disqualifying a Judge applies just as much ifthe Judge’s decision will lead to the promotion of acause in which the Judge is involved together with oneof the parties.”13.4. Lord Hutton in the very same Pinochet case observed asfollows:“There could be cases where the interest of the Judge inthe subject-matter of the proceedings arising from hisstrong commitment to some cause or belief or hisassociation with a person or body involved in theproceedings could shake public confidence in theadministration of justice as much as a shareholding(which might be small) in a public company involved inthe litigation.” https://hcservices.ecourts.gov.in/hcservices/

13.5. That was a case where when the extradition demand ofPinochet, who was a deposed Military ruler of Chile and was sought tobe extradited to his native country, a Judge, who heard theextradition proceedings was a member of the Amnesty International,which organisation had earlier passed a Resolution for extraditingPinochet back to his native country. The Extradition proceedingsordered were set aside on the grounds of bias for the sole reason thathe was a member of the organisation and that organisation hadcommitted to extradite the said person. It was in this context, thejudgment was rendered by the House of Lords in U.K. This judgment ofthe House of Lords was quoted with approval in Kumaon Mandal VikasNigma Ltd. Case (cited supra). If that is taken note of, certainly,in the present case, the conduct of the executive authority of thePanchayat, viz., Panchayat President, is not admirable and he had notacted bona fide and without bias.14.Whether Courts have power to interdict a Show CauseNotice?14.1. The Supreme Court also held in State of Punjab v. V.K.Khanna [(2001) 2 SCC 330] that a show cause notice can also beinterfered if there is a malice or mala fide or motive involved.The relevant passage found in paragraph 33 of the said judgment isextracted usefully:Para 33:"While it is true that justifiability of the charges atthe stage of initiating a disciplinary proceedingcannot possibly be delved into by any court pendinginquiry but it is equally well settled that in theevent there is an element of malice or mala fide,motive involved in the matter of issue of a charge-sheet or the authority concerned is so biased that theinquiry would be a mere farcical show and theconclusions are well known then and in that event lawcourts are otherwise justified in interfering at theearliest stage so as to avoid the harassment andhumiliation of a public official. It is not a questionof shielding any misdeed that the Court would beanxious to do, it is the due process of law whichshould permeate in the society and in the event ofthere being any affectation of such process of law thatlaw courts ought to rise up to the occasion and theHigh Court, in the contextual facts, has delved intothe issue on that score...."14.2. Though the decisions cited by the learned AdvocateGeneral that show cause notice cannot be interfered with may be https://hcservices.ecourts.gov.in/hcservices/ generally correct and binding, but the Courts have always leftexception to the same. Therefore, the cases cited by the learnedAdvocate General have no relevance to the facts of the present case.14.3. In the present case, this Court is concerned with thetwo show cause notices and inspection conducted by the VillagePanchayat President and he was made personally a party to the writproceedings and, therefore, the judgments cited relating to provingmala fide in the absence of parties may not be relevant.14.4. The decisions that unauthorised constructionsconstructed contrary to relevant Building Rules and Town and CountryPlanning Act will have to be removed are relevant to cases where suchconstructions were constructed are held to be proved. In the presentcase, there is no material to show that there were unauthorisedconstructions and this Court is only at the stage of show cause noticeand not dealing with any final order. 15.Fatal Flaws:15.1. In respect of six buildings, admittedly, they do not comeunder Rule 4(1)(d) of the Tamil Nadu Panchayats Buildings Rules.Further, the buildings were constructed in the year 1995 and the Rulesframed under the District Municipalities Act under Chapter X A of theAct were followed and were also supported by Government Orders issuedin G.O. (D) Nos. 67 and 68 dated 17.3.1995. The fact that plans weresanctioned by the AAA Committee and approved by the Government andalso subsequently licence fees were paid and the buildings wereassessed for House Tax which tax are also being paid regularly by thepetitioners, will clearly show that there are no violation of anyBuildings Rules. Even as per the two show cause notices, theconstruction work for all the buildings were completed at the time ofinspection.15.2. The Village Panchayat President was in possession ofall these materials which were easily available in his office or inthe Panchayat Union Office, did not care to collect those materials.Before issuing the show cause notice, he did not take note of thosematerials and never found his opinion on any objective materials. Onthis ground, the show cause notice suffers from lack of application ofmind. Even in respect of the seventh building, the measurement takenfrom outside cannot be mechanically projected as if there is a cellarand first floor was found inside with equal plinth areas constructed.When applying Rule 34 of the Buildings Rules seeking for demolition bythe owner, such assumptions and presumptions cannot be allowed to finda place in a statutory notice. 15.3. Further, the said building is also covered by theorders of the Government issued under the Tamil Nadu District https://hcservices.ecourts.gov.in/hcservices/ Municipalities Act under Chapter X A read with Rules and, therefore,there was no necessity to invoke the same Rule. If only there is asuspicion of any construction and in violation of the Rules, then thePanchayat President ought to have followed the due procedure andcollected all the materials at his disposal and then call upon theowner to provide necessary information failing which, he can conductan enquiry in terms of the Rules framed under the Tamil NaduPanchayats Act and arrive at a proper determination to invoke Rule34 of the Tamil Nadu Panchayats Buildings Rules. Since that has notbeen done in the present case, the notices in this regard are liableto be set aside.16.Finale:In view of the foregoing discussion, the following conclusionsare arrived at:(a)Rule 4(1)(d) of the Tamil Nadu Panchayats Buildings Rules,1997 is constitutionally valid(b)The inspection carried on 31.5.2007 in the petitioner Estateis illegal and not supported by the Tamil Nadu PanchayatRules in as much as the Rules framed under the PanchayatsAct, 1994 were not followed and hence, the said reportcannot be relied upon for any further action.(c)In as much as the show cause notice dated 05.6.2007 is notbased upon any credible material, it is clearly illegal andmust be set aside.(d)The notice under Rule 34 of the Buildings Rules dated10.9.2007 emanates from non-application of mind and it isvitiated by bias and deserves to be set aside.(e)Notice dated 10.9.2007 in as much as it also includesbuildings, which are not opposed to the Tamil NaduPanchayats Buildings Rules, but taken note of for issuanceof a provisional order to direct the owner to demolish thosebuildings also, is also liable to be set aside on the groundof non-application of mind.17.Relief:17.1. In the result, the W.P. Nos. 20034, 20336 and 30671 of2007 will stand allowed and consequential show cause notice dated05.6.2007, Inspection Report dated 31.5.2007 and show cause noticedated 10.9.2007 will stand set aside. https://hcservices.ecourts.gov.in/hcservices/

17.2. However, W.P. No. 20337 of 2007 will stand dismissed.Consequently, Rule 4(1)(d) of the Tamil Nadu Panchayats BuildingsRules, 1997 is held to be intra vires of the Tamil Nadu Panchayats Actand the Constitution. All the Miscellaneous Petitions will standclosed. However, there will be no order as to costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar. griTo1.The Chief SecretaryGovernment of Tamil NaduSecretariatChennai – 92.The DirectorInformation and Public RelationsSecretariatChennai3.The District CollectorThe Nilgiris DistrictUdhagamandalam4.The Additional CollectorThe Nilgiris DistrictUdhagamandalam5.The District Revenue OfficerThe Nilgiris DistrictUdhagamandalam6.The Revenue Divisional OfficerCoonoor The Nilgiris District7.The Block Development OfficerKothagiriThe Nilgiris District https://hcservices.ecourts.gov.in/hcservices/

8.The President,Executive Authority,Kodanad Village Panchayat,Kottagiri Taluk,Keradamattam,Nilgiris District.9.The President,Kodanad Village Panchayat,Kottagiri Taluk,Keradamattam,Nilgiris District.10.The Secretary to Government,Rural Development Department,Secretariate,Chennai-9+ 4 ccs to Mr. A. Navaneetha Krishnan, Advocate, SR.25876PA(CO)RP 30.04.08 W.P. No. 20034 of 2007, etc. batch