Marammal @ Appichiyammal v. The Special Commissioner and Commissioner of Land Administration, Chepauk, Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 19-08-2010CORAMTHE HON'BLE MR.JUSTICE M.JAICHANDREN W.P.No.4016 of 2006 andW.P.M.P.No.4281 of 20061.Marammal @ Appichiyammal2.Janaki.. Petitioners.Versus1.The Special Commissioner andCommissioner of Land Administration,Chepauk, Chennai-5.2.The District Revenue Officer,Erode District, Erode... Respondents.Prayer: Petition filed under Article 226 of the Constitution ofIndia praying for the issuance of a Writ of Certiorarified Mandamus,calling for the records relating to the order made inD.Dis.No.E2/4206/2005, dated 21.10.2005, passed by the firstrespondent in confirming the order made in Pa.Mu.No.2915/2004/A1,dated 9.12.2004 passed by the second respondent and quash the sameand forbear the respondents from preventing the petitioner fromtaking water from the Well situated in S.No.319/10A2, IkkaraiThathapalli Village, to the lands comprised in S.Nos.287/1,3 and 4,Sathiyamangalam Taluk, Erode District. For Petitioners: Mr.I.C.Vasudevan For Respondents: Mr.M.Dhandapani Special Government PleaderO R D E RHeard the counsels appearing on behalf of the petitioners, aswell as the respondents. 2. The petitioners had stated that they are the absoluteowners of the property in S.F.No.319/10A2 of Ikkarai ThathapalliVillage. A Well is situated in the petitioners’ land in S.Nos.287/1,3 and 4. The water from the said Well is being used for agriculturalpurposes. A Track Rent permit had been granted to the petitioners,by the authority concerned, to draw water from the Well, which issituated close to the Bhavani river, permitting the petitioners touse the percolated water from the Well, for agricultural purposes.The petitioners have been paying, periodically, the track rent, the https://hcservices.ecourts.gov.in/hcservices/ water cess and the kist due from them. The petitioners had also beendirected to pay an one time water cess, for the usage of the waterpercolated in the Well in question, from the Bhavani river.3. It had also been stated that the petitioners have been usingthe water from the Well in question, without violating the terms andconditions imposed on the petitioners, while granting the Track RentPermit, by the authority concerned. The petitioners are not drawingwater, directly, from the Bhavani river. However, the impugnedproceedings had been passed, cancelling the Track Rent Permitgranted in favour of the petitioners, without following theprinciples of natural justice. No proper enquiry had been conductedbefore the impugned proceedings had been passed, based on an allegedreport of the local Tahsildar concerned. No proof had been shown bythe respondents to substantiate their allegation that thepetitioners had violated the terms and conditions of the Track RentPermit granted in his favour. A copy of the report, said to havebeen submitted by the Tahsildar concerned, had not been given to thepetitioners, during the enquiry. 4. It had also been stated that the impugned proceedings hadbeen passed by the District Revenue Officer, the second respondent,based on G.O.Ms.No.2260, Public Works Department, dated 3.11.1967,which had been, subsequently, amended in Government MemoNo.115657/N2/67-2, P.W., dated 12.1.1968. The said Government Ordermay apply only in cases of Wells, which are already in existence andfor the sinking of the new Wells and for the deepening of existingWells, close to the main canals, the branch canals and thedistributories. However, it would not be applicable to the Wellssituated close to the Bhavani river. It is only the terms andconditions of the Track Rent Permit, which prohibits the drawing ofwater, directly, from the Bhavani river. Therefore, the impugnedproceedings of the District Revenue Officer cannot be held to belegal and valid, both in law and on facts. The said proceedings ofthe second respondent cancelling the Track Rent Permit granted infavour of the petitioners had also been wrongly confirmed by theSpecial Commissioner and Commissioner of Land Administration,Chennai, the first respondent. As such, the impugned proceedings arearbitrary, illegal and void. 5. The learned counsel appearing on behalf of the appellant hadrelied on the decision of this Court, in Arignar Anna Weavers Co-operative Society Ltd., V. State of Tamil Nadu and others (AIR 1999Madras 254), wherein it had been stated that the furnishing of thereport, based on which the impugned proceedings had been passed,ought to have been supplied to the petitioner before the conclusionof the enquiry. Failure to do so would amount to violation ofprinciples of natural justice.6. He had also relied on Uma Nath Pandey V. State of U.P. (2009(2) CTC 663), wherein the Supreme Court had held as follows: https://hcservices.ecourts.gov.in/hcservices/ “5. The crucial question that remains to beadjudicated is whether principles of natural justice havebeen violated; and if so, to what extent any prejudice hasbeen caused. It may be noted at this juncture that in somecases it has been observed that where grant of opportunityin terms of principles of natural justice do not improvethe situation, “useless formality theory” can be pressedinto service.6. Natural justice is another name for commonsensejustice. Rules of natural justice are not codified canons.But they are principles ingrained into the conscience ofman. Natural justice is the administration of justice in acommonsense liberal way. Justice is based substantially onnatural ideals and human values. The administration ofjustice is to be feed from the narrow and restrictedconsiderations which are usually associated with aformulated law involving linguistic technicalities andgrammatical niceties. It is the substance of justice whichhas to determine its form.7. The expressions “natural justice” and “legaljustice” do not present a water-tight classification. Itis the substance of justice which is to be secured byboth, and whenever legal justice fails to achieve thissolemn purpose, natural justice is called in aid of legaljustice. Natural justice relieves legal justice fromunnecessary technicality, grammatical pedantry or logicalprevarication. It supplies the omissions of a formulatedlaw. As Lord Buckmaster said, no form or procedure shouldever be permitted to exclude the presentation of alitigants’ defence.8. The adherence to principles of natural justice asrecognized by all civilized States is of supremeimportance when a quasi-judicial body embarks ondetermining disputes between the parties, or anyadministrative action involving civil consequences is inissue. These principles are well settled. The first andforemost principle is what is commonly known as audialteram partem rule. It says that no one should becondemned unheard. Notice is the first limb of thisprinciple. It must be prescise and unambiguous. It shouldappraise the party determinatively the case he has tomeet. Time given for the purpose should be adequate so asto enable him to make his representation. In the absenceof a notice of the kind and such reasonable opportunity,the order passed becomes wholly vitiated. Thus, it is butessential that a party should be put on notice of the casebefore any adverse order is passed against him. This isone of the most important principles of natural justice.It is after all an approve rule of fair play. The concepthas gained significance and shades with time. When thehistoric document was made at Runnymede in 1215, the firststatutory recognition of this principle found it sway intothe “Magna Carta”. The classic exposition of Sir Edward https://hcservices.ecourts.gov.in/hcservices/ Coke of natural justice requires to “vocate, interrogateand adjudicate”. In the celebrated case of Cooper V.Wandsworth Board of Works, 1863 (143) ER 414, theprinciple was thus stated:“Even God did not pass a sentence upon Adam, before he wascalled upon to make his defence. “Adam” says God, “whereare thou? Hast thou not eaten of the tree whereof Icommanded thee that thou shouldest not eat”.9. Since then the principle has been chiseled, honedand refined, enriching its content. Judicial treatment hasadded light and luminosity to the concept, like polishingof a diamond. 10. Principles of natural justice are those ruleswhich had been laid down by the Courts as being theminimum protection of the rights of the individual againstthe arbitrary procedure that may be adopted by a judicial,quasi-judicial and administrative authority while makingan order affecting those rights. These rules are intendedto prevent such authority from doing injustice................14. Lord Selbourne also added that the essence ofjustice consisted in requiring that all parties shouldhave an opportunity of submitting to the person by whosedecision they are to be bound, such considerations as intheir judgment ought to be brought before him. All thesecases lay down the very important rule of natural justicecontained in the oft-quoted phrase `justice should notonly be done, but should be seen to be done’.15. Concept of natural justice has undergone a greatdeal of change in recent years. Rules of natural justiceare not rules embodied always expressly in a statute or inrules framed there under. They may be implied from thenature of the duty to be performed under a statute. Whatparticular rule of natural justice should be implied andwhat its context should be in a given case must depend toa great extent on the fact and circumstances of that case,the frame-work of the statute under which the enquiry isheld. The old distinction between a judicial act and anadministrative act has withered away. Even anadministrative order which involves Civil consequencesmust be consistent with the rules of natural justice.Expression `Civil consequences’ encompasses infraction ofnot merely property or personal rights but of civilliberties, material deprivations, and non-pecuniarydamages. In its wide umbrella comes everything thataffects a citizen in his civil life.”17. How then have the principles natural justice beeninterpreted in the Courts and within what limits are theyto be confined? Over the years by a process judicialinterpretation two rules have been evolved as representingthe principles natural justice in judicial process,including therein quasi-judicial and administrative https://hcservices.ecourts.gov.in/hcservices/ process. They constitute the basic elements of a fairhearing, having their roots in the innate sense of man forfair-play and justice which is not the preserve of anyparticular race or country but is shared in common by allmen. The first rule is `nemo judex in causa sua’ or `nemodebet esse judex in propria causa sua’ as stated in (1605)12 Co.Rep. 114 that is, `no man shall be a judge in hisown case’. Coke used the form `aliquis non debet essejudex in propria causa quia non potest esse judex at pars’(Co.Litt.1418), that is, `no man ought to be a judge inhis own case, because he cannot act as Judge and at thesame time be a party’. The form `nemo potest esse simulactor et judex’, that is, `non one can be at once suitorand judge’ is also at time sused. The second rule is `audialteram partem’, that is, `hear the other side’. At timesand particularly in continental countries, the form`audietur at altera pars’ is used, meaning very much thesame thing. A corollary has been deduced from the abovetwo rules and particularly the audi alteram partem rule,namely `qui aliquid statuerit parte inaudiata alteramactquam licet dixerit, haud acquum facerit’ that is, `hewho shall decide anything without the other side havingbeen heard, although he may have said what is right, willnot have been what is right’----- or in other words, as itis now expressed, `justice should not only be done butshould manifestly be seen to be done’. Whenever an orderis struck down as invalid being in violation of principlesof natural justice, there is no final decision of the caseand fresh proceedings are left upon. All that is done isto vacate the order assailed by virtue of its inherentdefect, but the proceedings are not terminated. 19. Natural justice is the essence of fairadjudication, deeply rooted in tradition and conscience,to be ranked as fundamental. The purpose of following theprinciples of natural justice is the prevention ofmiscarriage of justice”7. Per contra, the learned counsel appearing on behalf of therespondents had submitted that the conditions for drawing of waterfrom channels and Wells have been prescribed, in the GovernmentOrder, in G.O.Ms.No.2260, Public Works Department, dated 3.11.1967,which had been, subsequently, amended by a government memo. An auditparty had inspected the sites concerned, based on certain complaintsthat had been received by the respondents, with regard to theillegal drawing of water from the Bhavani river, by some persons.After getting a report from the concerned local Tahsildar and afterconducting an enquiry, in which the petitioners, as well as thelocal village administrative officer, had participated, the impugnedproceedings had been passed. As a result of the enquiry it had beenfound that the petitioners had been drawing water from Wellssituated within 50 metres from the Bhavani river, contrary to theconditions specified, in G.O.Ms.No.2260, Public Works Department,dated 3.11.1967. Therefore, the impugned proceedings had been passedby the second respondent, cancelling the Track Rent Permit granted https://hcservices.ecourts.gov.in/hcservices/ in favour of the petitioners. The appeal filed by the petitionersbefore the Commissioner and Commissioner of Land Administration,Chennai, had also been confirmed. The petitioners were found to bedrawing water from the Bhavani river directly, in violation of theterms and conditions of the Track Rent Permit granted in favour ofthe petitioners. 8. The learned counsel had also submitted that sufficientopportunity had been provided to the petitioners to participate inthe enquiry and therefore, it cannot be claimed that there have beena violation of the principles of natural justice. Further, noallegation of mala fides had been made, by the petitioners, againstthe respondents. In such circumstances, it cannot be said that theimpugned proceedings are arbitrary, illegal and invalid in the eyeof law. 9. In view of the submissions made by the learned counselsappearing on behalf of the petitioners, as well as the respondents,and in view of the records available, it is seen that nothing hasbeen shown on behalf of the respondents to justify their claim thatthe Government Order, in G.O.Ms.No.2260, Public Works Department,dated 3.11.1967, and the amendment therein, by way of a MemoNo.115657/N2/67-2, P.W., dated 12.1.1968, would be applicable to thefacts and circumstances of the present case. The Government Order,in G.O.Ms.No.2260, Public Works Department, dated 3.11.1967, seemsto apply only in respect of wells, which are situated near the maincanals, branch canals and their distributories. 10. The learned counsel appearing on behalf of the respondentshad not been in a position to clarify as to how the above mentionedGovernment Order would be applicable to the petitioners, in thepresent case, when the allegation relates to the drawing of water,either directly from the Bhavani river, or from a well situatedclose to the said river. Further, nothing has been placed beforethis Court, on behalf of the respondents, to show that the copies ofthe report of the Tahsildar concerned and of the local VillageAdministrative Officer and the other relevant materials relied uponby the respondents, during the enquiry, had been supplied to thepetitioners. Thus, it is seen that the principles of natural justicehad been violated in the process followed by the respondents, inconducting the enquiry, based on the allegations made against thepetitioners. In such circumstances, this Court is compelled to holdthat the impugned proceedings, challenged in the present writpetition, cannot be sustained in the eye of law. Hence, they are setaside. Accordingly, the writ petition stands allowed. No costs.However, it is made clear that it would be open to the respondentsand the other authorities concerned to include the necessary termsand conditions, with regard to the drawing of water, eitherdirectly, or indirectly from the Bhavani river, whilegranting/renewing the Track Rent Permit in favour of thepetitioners, as they may deem fit and proper, as per the relevantprovisions of law, in public interest, as per the policy of theGovernment. It is also made clear that the respondents and the https://hcservices.ecourts.gov.in/hcservices/ other authorities concerned would be at liberty to initiateappropriate action against the petitioners, if the petitioners arefound to have acted in contravention of the terms and conditions soimposed, by following the procedures established by law, includingthe supplying of the inspection report and the other relevantdocuments, relied upon by the respondents. Further, it is made clearthat no prior intimation need be given to the petitioners by theauthorities concerned, before conducting the inspection of the siteor premises concerned. Consequently, connected writ petitionmiscellaneous petition is closed.cshSd/-Asst. Registrar//True Copy//Sub Asst. RegistrarTo1.The Special Commissioner andCommissioner of Land Administration,Chepauk, Chennai-5.2.The District Revenue Officer,Erode District, Erode.+ 1 cc to Government Pleader, SR No.61756NSM(CO)SR/8.9.2010W.P.No.4016 of 2006