{"id":39275,"date":"2010-11-12T00:00:00","date_gmt":"2010-11-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mukkalathor-sanga-abiviruthi-vs-the-tahsildar-on-12-november-2010"},"modified":"2015-04-09T11:13:59","modified_gmt":"2015-04-09T05:43:59","slug":"mukkalathor-sanga-abiviruthi-vs-the-tahsildar-on-12-november-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mukkalathor-sanga-abiviruthi-vs-the-tahsildar-on-12-november-2010","title":{"rendered":"Mukkalathor Sanga Abiviruthi vs The Tahsildar on 12 November, 2010"},"content":{"rendered":"
Madras High Court<\/div>\n
Mukkalathor Sanga Abiviruthi vs The Tahsildar on 12 November, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 12\/11\/2010\n\nCORAM\nTHE HON'BLE MR.JUSTICE P.P.S.JANARTHANA RAJA\nAND\nTHE HON'BLE MR.JUSTICE T.RAJA\n\nW.A.(MD)No.771 of 2010\n\nMukkalathor Sanga Abiviruthi\nElementary School,\nRepresented by its Secretary,\nBalanathan,\nKeezhauppilikoondu,\nKariapati Taluk,\nVirudhunagar District.\t\t\t... Appellant\n\nVs.\n\nThe Tahsildar,\t\nKariapatti Taluk,\nKariapatti,\nVirudhunagar District.\t\t\t...\tRespondent\n\nPRAYER\n\nWrit Appeal filed under Clause 15 of Letters Patent Act, to set aside\nthe order dated 08.10.2010 passed in W.P.No.6992 of 2010.\n\n!For Appellant\t ...  Mr.G.R.Swaminathan\n^\n\t\t\t\t\t  ***\n\n:JUDGMENT\n<\/pre>\n
(Judgment of the Court was made by
\n T.RAJA,J.)<\/p>\n
\tThe present Writ Appeal has been filed by the appellant against the order
\nby the learned Single Judge passed in W.P.No.6992 of 2010 dated  08.10.2010.\n<\/p>\n
\t2. Heard the learned Counsel for the appellant and perused the materials
\navailable on record carefully.\n<\/p>\n
\t3. The appellant-Mukkalathor Sanga Abiviruthi Elementary School came to be
\nstarted by the grandfather of Mr.Balanathan claiming to be the Secretary of the
\nappellant’s School, in Keezha Uppilikundu, Kariapatti Taluk, Virudhunagar
\nDistrict about 60 years ago in the year 1952.  Due to some dispute as to whether
\nthe School belongs to the Community or the entire village, a civil suit was also
\nfiled.  But, the said civil suit finally came to be disposed of declaring that
\nthe appellant School belonged to the the entire village.  Subsequently, the
\nEducational Society which was running the school, became defunct and thereafter,
\nthe present appellant’s society was started and registered under the Tamil Nadu
\nSocieties Registration Act 1975. The said Educational Society comprising of all
\nmembers from various communities of the village started claiming the said
\nschool.  It was also mentioned that after the suit was filed, the appellant
\nSchool came under direct payment system from the year 1972 and the School was
\nmanaged directly by the Education Department till 2002. Subsequently, when the
\nSchool became defunct, the present appellant once again took steps to revive the
\nEducational Agency by applying to the revenue authorities seeking licence to run
\nthe school and filed another application to the Educational Authorities to
\nregularise the appellant as the Secretary to the School.\n<\/p>\n
\t4. It was also mentioned by the learned Counsel appearing for the
\nappellant that the District Elementary Educational Officer approved the
\nappointment of one Balanathan as the Secretary of the appellant School and he
\nsubmitted the necessary documents for the purpose of obtaining solvency
\ncertificate, stability certificate and fire department certificate and also
\napplied for the building licence to the Tahsildar, Kariapatti Taluk,
\nVirudhunagar District\/the present respondent herein.  The respondent Tahsildar,
\nby order dated 25.08.2007 refused to grant a building licence on the ground that
\nschool building is situated in a tank bund.\n<\/p>\n
\t5. Aggrieved by the said order passed by the present respondent, the
\nappellant filed a Writ Petition in W.P.(MD)No.9060 of 2007.\n<\/p>\n
\t6. During the pendency of the said writ petition, by taking note of the
\nthe refusal of Tahsildar to grant building licence, the Deputy Director of
\nHealth Services also refused to grant sanitary certificate.  As a result of the
\nrefusal by the Deputy Director of Health Services, the District Elementary
\nEducation Officer also passed an order dated 11.01.2008 declining to accord the
\napproval for the appointment of the Secretary of the School Committee and
\nrefused permission to restart the school.\n<\/p>\n
\t7. Aggrieved by the order of the District Elementary Education Officer,
\nthe person nominated as the Secretary of the School filed a writ petition in
\nW.P.(MD)No.4234 of 2008.\n<\/p>\n
\t8. These two writ petitions were taken up together by the learned single
\nJudge and after considering the common issues involved in both writ petitions,
\nthe said petitions finally came to be dismissed by a common order dated
\n17.09.2008. It is relevant to extract paragraph Nos.5, 6 and 7 of the afore said
\norder for the purpose of proceeding further in this matter:\n<\/p>\n
\t“5. On notice from this Court, the Assistant Elementary Education Officer,
\nKariapatti, has filed a counter affidavit, dated 10.01.2008, wherein it is
\nstated that the petitioner’s association cannot be recognised as an “educational
\nagency” as disputes were going on between the petitioner educational agency and
\nother villagers and suits are pending in various Courts.  Only when a Society is
\nregistered under the Tamil Nadu Registration of Societies Act, it can make a
\nrepresentation under the name of the said Society.\n<\/p>\n
\t6. Apart from that the Society cannot be approved unless it is recognised
\nby the registration department or any Civil Court granting such status as a
\nsuccessor of the previous body.  Further, seeking for licence in a Government
\nporamboke is impermissible and hence, the petitioner’s prayer cannot be
\nconsidered.\n<\/p>\n
\t7. In the light of the above, the petitioner has not made out any case to
\nentertain these writ petitions.  These two writ petitions are misconceived,
\ndevoid of merits and liable to the dismissed and accordingly, they are
\ndismissed. Connected M.P.s are closed. No costs.”\n<\/p>\n
\t9. Aggrieved by that common order dated 17.09.2008, W.A.(MD)Nos.17 and 18
\nof 2009 were filed before the Division Bench of this Court.\n<\/p>\n
\t10. By order dated 01.07.2009, the Division Bench of this Court by taking
\nnote of the fact that the School in question being an elementary school in
\nexistence for more than 55 years, remanded the matter back to the Tahsildar,
\nKariyapatti Taluk, Virudhunagar District to decide about the grant of building
\nlicence to run the school and also further remanded another issue back to the
\nDistrict Elementary Officer, Virudhunagar District, to find out the viability of
\ngrant of approval for the appointment of the Secretary of the School committee,
\nby taking into account the character of the land on which the school is located.\n<\/p>\n
\t11. Pursuant to the order passed by this Court in the above said
\nW.A.(MD)Nos.17 and 18 of 2009 dated 01.07.2009 and on the basis of another order
\npassed by this Court in W.P.No.20186 of 2000 dated 27.06.2005 directing the
\nRevenue Authorities that the encroachments in the water bodies like Kanmai,
\nbund, Kulam and channel should be removed so as to protect all those Kulam, bund
\nand Channel, the Tahsildar, Kariapatti Taluk, Virudhunagar District\/the
\nrespondent herein, finally passed an order dated 05.09.2009 rejecting the
\nrequest of the petitioner to grant building licence to run the school in the
\nland classified as Kanmai(Lake) Poramboke. Consequently, the  Tahsildar,
\nKariapatti Taluk, Virudhunagar District also passed another order dated
\n15.05.2010.\n<\/p>\n
\t12. Aggrieved by the order dated 05.09.2009 passed by the  Tahsildar,
\nKariapatti Taluk, Virudhunagar District, rejecting the request of the petitioner
\nto grant building licence, again the appellant filed a Writ Petition in
\nW.P.(MD)No.9086 of 2009 seeking prayer to quash the order dated 05.09.2009 with
\nconsequential prayer to direct the respondent\/ Tahsildar, Kariapatti Taluk,
\nVirudhunagar District to grant public building licence on the appellant’s
\napplication dated 21.08.2009.\n<\/p>\n
\t13. Consequently, the learned Single Judge, by referring the order passed
\nby the learned Division Bench of this Court in W.A.(MD)Nos.17 and 18 of 2009,
\ndismissed the said writ petition, by order dated 23.12.2009.\n<\/p>\n
\t14. Once again, the appellant approached the  Tahsildar, Kariapatti Taluk,
\nVirudhunagar District, the respondent herein, by representation dated 05.04.2010
\nseeking building licence in favour of Mukkalathor Sanga Abiviruthi Elementary
\nSchool to run the school in the disputed place.  Again the same  Tahsildar,
\nKariapatti Taluk, Virudhunagar District, by taking into account that the
\nappellant Mr.Balanathan, being not the owner or the proprietor of the said
\nschool, rejected the case of the appellant.  The said order dated 15.05.2010 was
\nonce again challenged by W.P.(MD)No.6992 of 2010.\n<\/p>\n
\t15. The learned Counsel appearing for the appellant placed two fold
\nsubmissions.  Firstly, he has opposed the order of the learned Single Judge in
\nholding that the appellant Balanathan who claims to be the Secretary of the
\npetitioner’s School is not the owner of the land, in which the school in
\nquestion is located for the purpose of granting building licence to the school
\nby referring to Section 2(7) of the Tamil Nadu Public Buildings(Licensing) Act,
\n1965.  As per the said Section, the owner includes, any person or authority to
\nwhom or to which the possession of, and control over the affairs of, the
\nbuilding has been entrusted, whether such person or authority is called a
\nmanaging trustee, an agent, a correspondent, manager, superintendent, secretary
\nor by any other name whatsoever.  The learned Counsel attempts to equate the
\nsaid Balanathan as Secretary or the agent of the petitioner’s School.
\nTherefore, it was pleaded that Mr.Balanathan who is said to be the Secretary of
\nthe petitioner’s school without going to issue of title and ownership of the
\npetitioner’s school, on the application made by Balanathan, who is the Secretary
\nof the petitioner’s school, the Tahsildar, Kariapatti Taluk, Virudhunagar
\nDistrict, should have granted the building licence. This contention is misplaced
\none, since the place in which the petitioner’s school  situated itself is
\nclassified as Kanmai Poramboke,  the respondent\/Tahsildar, Kariapatti Taluk,
\nVirudhunagar District, has refused to issue building licence for the
\npetitioner’s school.  When the place in which the school situated is itself the
\nKanmai Poramboke, the contentions raised to grant building licence to run the
\npetitioner’s school at the instance of the Secretary of the petitioner’s school,
\nhas been rightly rejected by the learned Single Judge.\n<\/p>\n
\t16. The learned Single Judge, rejected the said Writ Petition on the
\nground that the Tahsildar, Kariapatti Taluk, Virudhunagar District had taken
\ninto consideration all the relevant factors while rejecting the request of the
\nappellant to grant public building licence to the school in question.  Further,
\nit was held that the appellant Balanathan who is said to be the Secretary of the
\nappellant School, is not in a position to show that he is the owner of the land
\nin which the school in question is located, by referring Section 4 of the Tamil
\nNadu Public Buildings(Licensing) Act, 1965,  it was held that only the owner of
\nthe building in question can apply for grant of building licence. Since
\nBalanathan is not in a position to show that he has the title in respect of the
\nland, in which the school in question is located, it cannot be said that the
\nimpugned order dated 15.05.2010 passed by  Tahsildar, Kariapatti Taluk,
\nVirudhunagar District is arbitrary, erroneous or invalid in the eye of law.
\nSection 4 of the Tamil Nadu Public Buildings(Licensing) Act, 1965 is extracted
\nas under:\n<\/p>\n
\t4. Application for licence:(1) Any owner, who intends to use any
\nbuilding(not being an existing public building) as a public building shall make
\nan application in writing to the competent authority for a licence therefor.\n<\/p>\n
(2) Any owner, who intends to continue to use an existing public building as a
\npublic building, shall before the date of the expiry of a period of six months
\nfrom the date of the commencement of this Act, make an application in writing to
\nthe competent authority for a licence therefor.\n<\/p>\n
(3) Every application under sub-section(1) or sub-section(2) shall be in the
\nprescribed form and shall contain the following particulars, namely:-\n<\/p>\n
(i) the name and address of the owner of the building or the existing public
\nbuilding, as the case may be;\n<\/p>\n
(ii) the situation and description of the building or the existing public
\nbuilding, as the case may be;\n<\/p>\n
(iii) the purpose for which the building or the existing public building as the
\ncase may be, is proposed to be used or is being used; and\n<\/p>\n
(iv) such other particulars as may be prescribed.\n<\/p>\n
(4) An application under sub-section(1) or sub-section(2) may be accompanied by
\na certificate of structural soundness in the prescribed form obtained from an
\nengineer.”\n<\/p>\n
\t17. Further it is useful to refer to Section 2(7) of the said Act which is
\ngiven as under:\n<\/p>\n
“2(7). “owner” includes-\n<\/p>\n
(i) a lessee;\n<\/p>\n
(ii) a licensee\n<\/p>\n
(iii) a mortgage in possession; and\n<\/p>\n
(iv) any person or authority to whom or to which the possession of, and control
\nover the affairs of, the building has been entrusted, whether such person or
\nauthority is called a managing trustee, an agent, a correspondent, manager,
\nsuperintendent, secretary or by any other name whatsoever”\n<\/p>\n
\t18. A mere reading of the above said provisions clearly shows that a owner
\nincludes a lessee; a licensee; a mortgagee in possession and any person or
\nauthority to whom or to which the possession of and control over the affairs of,
\nthe building has been entrusted.\n<\/p>\n
\t19. In the present case, the appellant is not in a position to show that
\nhe has got the title or licence in respect of the land in which the school in
\nquestion is located.  Further, the permission to run the school also till date
\nhas not been granted by any Authority on the ground that the Revenue Authorities
\nhave already rejected the case of the appellant for grant of licence to the
\nschool in question, on the ground that Survey No.6 of Keezha Upplikundu village
\nis classified in the revenue records as Kanmai Poramboke. Admittedly, the
\nvillage is situated on the southern bank of the kanmai.  Therefore, a bund has
\nbeen created in order to prevent the water entering from the village, when the
\nbank gets filled-up due to the storage of the rain water.\n<\/p>\n
\t20. The learned Single Judge had gone through the various instructions of
\nthe Commissioner of Land Administration, in Circular T1-PD\/314\/09 and the other
\ninstructions of the State Government stating that water bodies like kulam,
\nkuttai, channel and other catchments ought to be preserved.  As per
\nG.O.M.S.No.105\/Revenue Department, dated 07.03.2001 encroachments made on water
\nbodies were directed to be removed.  On the basis of the above said
\nG.O.M.S.No.105\/Revenue Department, dated 07.03.2001,  a Division Bench of this
\nCourt in W.P.No.20186 of 2000 dated 27.06.2005 in L.Krishnan Vs. State of Tamil
\nNadu represented by its Secretary, Department of Revenue (Land Development),
\nFort St. George, Chennai-600 009,  reported in  2005(4) CTC 1, had directed the
\nremoval of encroachments in Odai Poramboke and in other water bodies which are
\nbeing used for the purpose of storage of water.\n<\/p>\n
\t21. In the light of the above said orders as well as the judgment of this
\nCourt in the case of L.Krishnan as cited above, the learned Single Judge, after
\nfinding that the school in question is located in Survey No.6 of Keezha
\nUppilikundu Village, which is classified in the revenue records as “Kanmai
\nPoramboke”, declined to interfere with the impugned order passed by the
\nTahsildar, Kariapatti Taluk, Virudhunagar District, dated 15.05.2010.\n<\/p>\n
\t22. We are also of the view that the Revenue Authorities have declined to
\ngrant the public building licence for the school on the ground that it is
\nsituated in the land that has been classified in the revenue records as “Kanmai
\nPoramboke”.  The said order does not call for any interference from us.\n<\/p>\n
\t23. In respect of the second submission that when he made a request to the
\nlearned Single Judge, for his recusal from hearing the petitioner, it was argued
\nthat the learned Single Judge has wrongly held that such a request would amount
\nto “forum shopping”. On that Count, he was imposed with a cost of Rs.5,000\/-
\n(Rupees five thousand only). The appellant had repeatedly filed writ petitions.
\nIn one such occasions, when one of the Writ Petitions in W.P.(MD)NO.9086 of 2009
\nwas listed before the learned Single Judge, seeking to quash the earlier order
\npassed by the very same Tahsildar, Kariapatti Taluk, Virudhunagar District,
\nrefusing to grant public building licence on the appellant’s application while
\ndealing with the same issue for the same relief, the learned Single Judge had
\nrejected the writ petition, on the basis of a Division Bench Judgment of this
\nCourt in the case of  L.Krishnan Vs. State of Tamil Nadu represented by its
\nSecretary, Department of Revenue (Land Development), Fort St. George, Chennai-
\n600 009,  reported in  2005(4) CTC 1.\n<\/p>\n
\t24. Again, in the second round, when another writ petition came up before
\nthe learned Single Judge, the learned counsel appearing for the appellant, to
\navoid an adverse order, made a request to the Judge to recuse himself from
\nhearing the subsequent writ petition viz., W.P.(MD)No.6992 of 2010.  When the
\nlearned Single Judge was asked not to hear the writ petition by the learned
\ncounsel appearing for the appellant, for the reason that he had already heard
\none of his five writ petitions to avoid any adverse order, thinking that the
\ncounsel wanted to avoid his court, the learned Single Judge was of the view that
\nthe prayer of the petitioner for recusal of the case would amount to forum
\nshopping and thus decided the case on merits.  It is pertinent to keep in mind
\nSection 114 of Civil Procedure Code that provides for review of judgment of the
\nCourt which passed a decree or made an order as it thinks fit.  Similarly
\nArticle 137 of the Constitution of India also provides the Honourable Apex Court
\nto review any judgment pronounced or order made by it.  When the review
\nprovisions are made as statutory rights to review its previous order by the same
\ncourt viz., the same judge, who passed the previous order, the  request made by
\nthe learned Counsel appearing for the appellant to recuse the learned Single
\nJudge for the reason that he had already dismissed a similar writ petition,
\nwould be nothing but amounting to “forum shopping”.  Therefore, the learned
\nSingle Judge has imposed a cost of Rs.5,000\/- (Rupees Five Thousand only) for
\nhis attempt to do “forum shopping”. The word “forum shopping” means choosing the
\nmost favourable  jurisdiction or court in which the claim might be heard.
\nGenerally, the High Court must discourage the forum shopping on the principle
\nthat a person seeking equity himself do the equity.  A party cannot take court
\nto machination which means to abuse the process of court.  The Apex Court in the
\ncase of Chetak Construction Limited Vs. Om Prakash and Others reported in
\n(1198)4 SCC 577 has held in paragraph 6 that a litigant cannot be permitted the
\nchoice of the forum and every attempt at forum shopping must be crushed with a
\nheavy hand.  In another case of In Re:Ajay Kumar Pandy, Contemnor reported in
\nAIR 1997 SC 260,  the Apex Court has held in paragraph 8, whereof that the
\nprayer of the applicant to transfer the case to “another bench” as he does not
\n“wish to appear before the Bench” apart from being itself contumacious is
\nrejected because a litigant cannot be permitted forum shopping.  The case stands
\nassigned to this Bench. The Honourable Apex Court in the case of R.K.Anand Vs.
\nRegistrar, Delhi High Court reported in (2009)8 SCC 106 has held in paragraphs
\n263 and 264, what is recusal, which are extracted as under:\n<\/p>\n
“263. “The path of recusal is very often a convenient and a soft option.  This
\nis especially so since a Judge really has no vested interest in doing a
\nparticular matter.  However, the oath of office taken under Article 219 of the
\nConstitution of India enjoins the judge to duly and faithfully and to the best
\nof his knowledge and judgment, perform the duties of office without fear or
\nfavour, affection or ill will while upholding the Constitution and the laws.  In
\na case where unfounded and motivated allegations of bias are sought to be made
\nwith a view of forum hunting\/Bench preference or browbeating the court, then,
\nsuccumbing to such a pressure would tantamount to not fulfilling the oath of
\noffice.”\n<\/p>\n
The above passage, in our view, correctly sums up what should be the court’s
\nresponse in the face of a request for recusal made with the intent to intimidate
\nthe court or to get better of an “inconvenient” Judge or to obfuscate the issues
\nor to cause obstruction and delay the proceedings or in any other way frustrate
\nor obstruct the course of justice.\n<\/p>\n
264. We are constrained to pause here for a moment and to express grave concern
\nover the fact that lately such tendencies and practices are on the increase.  We
\nhave come across instances where one would simply throw a stone on a Judge (who
\nis quite defenceless in such matters) and later on cite the gratuitous attack as
\na ground to ask the Judge to recuse himself  from hearing a case in which he
\nwould be appearing.  Such conduct is bound to cause deep hurt to the Judge
\nconcerned but what is of far greater importance is that it defies the very
\nfundamentals of administration of justice.  A motivated application for recusal,
\ntherefore, needs to be dealt with sternly and should be viewed ordinarily as
\ninterference in the due course of justice leading to penal consequences.”\n<\/p>\n
After considering the principles enunciated in the judgments cited supra, this
\nCourt is not inclined to interfere with the order of the learned Single Judge
\nimposing the cost of Rs.5,000\/- (Rupees Five Thousand only).\n<\/p>\n
\t25. Accordingly, the Writ Appeal stands dismissed. No costs.\n<\/p>\n
ssl<\/p>\n
To<\/p>\n
The Tahsildar,
\nKariapatti Taluk,
\nKariapatti,
\nVirudhunagar District.\t<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Mukkalathor Sanga Abiviruthi vs The Tahsildar on 12 November, 2010 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 12\/11\/2010 CORAM THE HON’BLE MR.JUSTICE P.P.S.JANARTHANA RAJA AND THE HON’BLE MR.JUSTICE T.RAJA W.A.(MD)No.771 of 2010 Mukkalathor Sanga Abiviruthi Elementary School, Represented by its Secretary, Balanathan, Keezhauppilikoondu, Kariapati Taluk, Virudhunagar District. … Appellant Vs. 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