IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.03.2011 CORAM: THE HON’BLE MR. JUSTICE K.CHANDRU W.P.No.28447 of 2010, M.P.Nos.1 and 2 of 2010 and M.P.No.1 of 2011 The Agri-Horticultural Society, Society registered under the Tamilnadu Societies Registration Act, Having its office at No.18, Cathedral Road, Chennai – 600 086 Rep. By its Honorary Secretary, Mr.V.Krishnamurthy ... Petitioner Vs. 1.The State of Tamilnadu, Rep. By its Secretary to Government, Revenue Department, Fort St.George, Chennai – 600 009. 2.The Collector, Collector of Chennai, Chennai – 600 001. 3.The Tahsildar, Mylapore, Chamiers Road, Chennai – 600 028. ... Respondents Prayer :Petition under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus, to call for the records relating to the communication of the 2nd respondent bearing Proceedings No. Rc.J6/77535/88 dated 8.12.2010 issued to the petitioners Society and quash the same and forbear the respondents, their men agents, subordinates or any person claiming under them from manner interfering with the peaceful possession and enjoyment of the petitioners Society lands including the lands comprised in R.S.No.64 (part) measuring 4 Cawnies, 14 grounds and 1472 sq.ft. in Mylapore Village on the northern side of Cathedral Road, Chennai 86. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.G.Rajagopalan,S.C for Mr.S.Thiruvenkataswamy For Respondent : Mr.P.S.Raman,Advocate General Assisted by LSM Hasan Fizal,G.A. O R D E R The petitioner Society, represented by its Honorary Secretary has filed the present writ petition, seeking to challenge an order of the second respondent District Collector dated 08.12.2010. 2. When the matter came up on 13.12.2010, this Court granted an interim stay after recording the submissions made by Mr.G.Rajagopalan, learned Senior Counsel appearing for Mr.S.Thiruvenkataswamy. On the same day, the learned Advocate General made certain submissions which was recorded by this Court. In paragraph 2 of the order, it was observed as follows:- "2. The learned Advocate General, for the learned Special Government Pleader, appearing for the respondents, had categorically admitted that though the reply, dated 29.10.2010, was received by the second respondent, on 1.11.2010, from the petitioner Society, it had not been considered before issuing the impugned proceedings, dated 8.12.2010. Therefore, the writ petition may be allowed on that ground alone. He had further submitted that the second respondent reserves the right to consider the reply submitted by the petitioner Society, on 29.10.2010, and to pass fresh orders thereon. However, in view of the submissions made by the learned senior counsel appearing for the petitioner that there are certain other issues, which are to be gone into, including the allegations of mala fide and colourable exercise of power by the respondents, this Court finds it appropriate to list the writ petition, on 4.1.2011, for final hearing. The respondents are to file the counter affidavits by then. Interim stay is granted till 4.1.2011." Notwithstanding the concession made by the respondent State, the matter was adjourned from time to time and the interim order came to extended on piecemeal basis. 4. Aggrieved by the continuation of the interim order, the respondent State has filed a vacate stay application in M.P.No.1 of 2011 together with supporting counter affidavit dated 31.12.2010. In defending the action of the second respondent, the first respondent contended that the permissive occupation given to the https://hcservices.ecourts.gov.in/hcservices/ petitioner Society will not create any right or title over the Government land. Therefore, the petitioner Society have no audience before this Court. 5. On behalf of the second respondent, a counter affidavit dated 31.12.2010 was also filed. In paragraph 13 of the counter, it was stated that the petitioner by a notice dated 29.09.2010 was requested to produce documentary evidence to establish their ownership on the said land in support of their claim within 15 days from the date of receipt of the notice. The said notice was received by the petitioner on 01.10.2010. The petitioner by a reply dated 13.10.2010 informed the second respondent that their Legal Advisor had sought for further time to give reply to the notice issued by the District Collector. A further notice dated 25.10.2010 was issued to the petitioner. After receiving the notice, a further reply was sent questioning the jurisdiction of the District Collector stating that the District Collector cannot arrogate herself to the position of a Civil Court asking the petitioner to produce any documents. Since the Collector herself is a party to the dispute, she cannot become a Judge of her own cause. Notwithstanding the stand taken by the petitioner, the respondents have passed the impugned order dated 08.12.2010. 6. Mr.G.Rajagopalan, learned Senior Counsel contended that the question of jurisdiction of the District Collector must be gone into. However, it was admitted by the learned Advocate General that the impugned order inasmuch as it had not considered the petitioner's objection and since the petitioner did not have an opportunity, they are willing to redo the exercise and agreeing to withdraw the impugned order. The petitioner's explanation, if any will be considered by the second respondent District Collector in accordance with law. After hearing arguments by both sides for some time, this Court informed that the petitioner Society must raise all the issues before the District Collector and only when any adverse findings are rendered, they should move the appropriate forum challenging such order. Since the impugned order can be set aside on the narrow ground based upon the concession given by the learned Advocate General and also as per the stand taken by the second respondent, this Court is not inclined to allow both parties to address arguments on the merits of the case. The matter was adjourned so as to enable the learned Advocate General to get the clear stand of the first respondent. 7. Accordingly, when the matter came up today, the learned Advocate General informed that the petitioner will be heard by the second respondent and if any documents need to be filed, they are also permitted to file such documents, including additional statement if any. Upon the receipt of such materials, the Collector shall pass orders in accordance with law. https://hcservices.ecourts.gov.in/hcservices/ 8. Mr.G.Rajagopalan, learned Senior Counsel also stated that they must be also allowed to raise the question of jurisdiction before the second respondent. It goes without saying that an authority who exercises jurisdiction can also decide the lack of jurisdiction if any such issues are raised. Such finding may be prima facie finding and it can always be corrected by an appropriate forum at a later point of time. 9. In view of the above, the impugned order dated 08.12.2010 will stand set aside on the short ground that the petitioner's explanation was not considered by the second respondent. The petitioner is entitled to file additional statement and produce appropriate documents, which they consider necessary. Upon receipt of the same, the District Collector shall consider the matter and pass an order in accordance with law. If any opportunity of hearing is sought for by the petitioner, it may also be granted to the petitioner Society. The petitioner must file additional statement and documents within three weeks from the date of receipt of the order. Thereafter, the District Collector shall pass final orders as expeditiously as possible on the issue concerned. 10. The writ petition is disposed of accordingly. No costs. Consequently, connected miscellaneous petitions are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar svki To 1.The Secretary to Government, The State of Tamilnadu, Revenue Department, Fort St.George, Chennai – 600 009. 2.The Collector, Collector of Chennai,Chennai – 600 001. 3.The Tahsildar, Mylapore, Chamiers Road, Chennai – 600 028. + 1 cc to M/s. S. Thiruvenkateswamy, Advocate SR.22486 + 1 cc to Government Pleader Sr.22765 W.P.No.28447 of 2010 RB(CO) Eu 7.4.11 https://hcservices.ecourts.gov.in/hcservices/