1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20.06.2011 CORAM: THE HONOURABLE MR.JUSTICE B.RAJENDRAN Writ Petition (MD)No.6025 of 2011 S.Kulanthaiammal ... Petitioner Vs. 1.The District Collector, Dindigul District, Dindigul. 2.The Revenue Divisional Officer, Dindigul District. 3.The Tahsildar, Nilakkottai Taluk, Dindigul District. 4.The Executive Officer, Batlagundu Panchayat, Dindigul District. 5.A.Peer Mohamed (R-5 impleaded as per the order dated 20.06.2011 made in M.P.No.1 of 2011) ... Respondents Prayer: Writ Petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Mandamus, directing the third respondent herein to consider and dispose of the petitioner's representation dated 21.02.2011 on merits. For Petitioner : Mr.K.Gokul For Respondents : Mr.T.R.Janarthanam, Additional Government Pleader For Respondent – 5: Mr.K.Hemakarthikeyan O R D E R The petitioner says that she is in a poramboke land owned by the Government and she only seeks that she has been residing there for a quite of number of years and seeks for patta as an occupier of the poramboke land. Hence, she had made a representation dated 21.02.2011 before the third respondent for getting patta. Since it has not been considered, she has come forward with the present writ petition. 2.When the writ petition came up for admission, one A.Peer Mohamed, third party filed a petition to implead himself as a party on the ground that he has already filed PIL in W.P.(MD)No.827 of 2011 and the Division Bench of this Court has passed an order as early as on 14.02.2011 directing the fourth respondent, the Executive Officer, Bathalagundu Panchayat, to take necessary action against the encroachers. https://hcservices.ecourts.gov.in/hcservices/ 2 3.On notice, the fourth respondent, the Executive Officer, Bathalagundu Panchayat represented through Advocate brought to the notice of this Court that as per the direction of this Court made in W.P.(MD) No.827 of 2011, the petitioner's property was measured and it was found that she is an encroacher and they are taking necessary steps to issue notice and take eviction under due process of law. 4.Heard the submissions made by the learned counsel for the respective parties. 5.In W.P(MD)No.827 of 2011, the Division Bench of this Court at Paragraph 4, it has been held as follows: "4.Considering the nature of the prayer made in the writ petition and the representation dated 10.01.2011 is pending on the file of the 4th respondent, without expressing anything on merits, the 4th respondent is directed to consider the said representation and pass orders on merits and in accordance with law after giving notice to the persons, who are likely to be affected by removal of encroachment, within a period of 8 weeks from the date of receipt of a copy of this order". 6. In view of the categorical order of the Division Bench of this Court and also the assertion made by the fourth respondent that they have already measured the property of the petitioner and they are taking necessary steps under law to recover the possession of the property, the writ petition has been filed only to consider the representation which is to issue patta to the encroacher. This is the fittest case where under the guise of consider the representation seeking innocuous prayers, the orders of the Division Bench is sought to be set at nought. In this connection, as rightly already the Division Bench in a PIL has categorically passed an order directing the fourth respondent to take necessary steps to remove the encroachers. Admittedly, the petitioner is encroacher and in fact, the fourth respondent stated before this Court that the property of the petitioner has already been measured and they are intending to issue necessary notice as per law seeking recovery of possession. Since the process under law is initiated, at this point of time, under the guise of a representation given to another authority, the process cannot be stultified. 7.In this connection, it is relevant to refer the decision of the Division Bench of this Court in M.Ingaci Vs. The Commissioner, Devakottai & Others, reported in 2010-2-L.W.785, to which I was also a party. In the said decision, following the Supreme Court decision, this Court has held that an application that could not even be considered, cannot be directed to be considered by the authority. Therefore, very strongly opposes the application of this nature and the maintainability of the application also. The Supreme Court in the case of A.P.SRTC Vs. G.Srinivas Reddy, reported in (2006) 3 SCC 674 = 2006-3-L.W.170, had observed as follows:- “19.There are also several instances where unscrupulous petitioners with the connivance of "pliable" authorities have misused the direction "to consider" issued by court. We may illustrate by an example. A claim, which is stale, time- barred https://hcservices.ecourts.gov.in/hcservices/ 3 or untenable, is put forth in the form of a representation. On the ground that the authority has not disposed of the representation within a reasonable time, the person making the representation approaches the High Court with an innocuous prayer to direct the authority to "consider" and dispose of the representation. When the court disposes of the petition with a direction to "consider", the authority grants the relief, taking shelter under the order of the court directing him to "consider" the grant of relief. Instances are also not wanting where authorities, unfamiliar with the process and practice relating to writ proceedings and the nuances of judicial review, have interpreted or understood the order "to consider" as directing grant of relief sought in the representation and consequently granting reliefs which otherwise could not have been granted. Thus, action of the authorities granting undeserving relief, in pursuance of orders to "consider", may be on account of ignorance, or on account of bona fide belief that they should grant relief in view of the court's direction to "consider" the claim, or on account of collusion/connivance between the person making the representation and the authority deciding it. Representations of daily-wagers seeking regularisation/absorption into regular service is a species of cases, where there has been a large-scale misuse of the orders "to consider". 8.Following the Apex Court's judgment cited supra, a Division Bench of this Court in M.Ingaci Vs. The Commissioner, Devakottai & Others, reported in 2010-2-L.W.785, had in para 8 observed:- “.... 8.Why we are extracting this judgment in such detail is that we should be aware of the consequences of our order when we direct the authorities to "consider". In the aforesaid situation, if the learned Judge, before directing the authorities to consider, had heard the petitioner herein, then the order of the Division Bench reprimanding the 5th respondent would have been brought to the notice of the learned Single Judge. Some time, we also come across cases where our directions is to an authority who cannot really pass an effective order and the effective order can only be passed by an authority superior to the one to whom we issue directions. Obviously, when the order is not complied with, since it cannot be complied with because of the hierarchy discipline, the officer has to face the contempt. All these can be avoided if we only bear in mind the guidelines given in the above case by the Supreme Court before we direct the respondent to "consider and pass orders". 9.Accordingly, the writ petition fails and the same is dismissed. No costs. Sd/- Assistant Registrar (A.E) /True Copy/ Sub Assistant Registrar (C.S) https://hcservices.ecourts.gov.in/hcservices/ 4 To 1.The District Collector, Dindigul District, Dindigul. 2.The Revenue Divisional Officer, Dindigul District. 3.The Tahsildar, Nilakkottai Taluk, Dindigul District. 4.The Executive Officer, Batlagundu Panchayat, Dindigul District. + 1 cc to Mr.K.Hemakarthikeyan, Advocate, SR No.19345 + 1 cc to The Special Government Pleader, SR No.19122 Writ Petition (MD)No.6025 of 2011 20.06.2011 sms RJ/20.7.11 4p/7c https://hcservices.ecourts.gov.in/hcservices/