S. Palani
Velayutham & Ors. Vs. Dist. Collector, Tirunvelveli, Tamil Nadu & Ors
[2009] INSC 1418 (7 August 2009)
Judgment
DISTRICT
COLLECTOR, TIRUNVELVELI, TAMIL NADU & ORS.
(Civil
Appeal No. 5743 of 2009) AUGUST 7, 2009 [R.V. RAVEENDRAN AND P. SATHASIVAM,
JJ.] [2009] 12 SCR 1215 The Judgment of the Court was delivered by R.V.
RAVEENDRAN, J.
1.
Leave granted. Heard the learned counsel.
2.
Certain lands in Pazhavoor village were acquired under the Tamil
Nadu Acquisition of Lands for Harijan Welfare Schemes Act.
Notice
regarding acquisition was served on respondents 3 to 6 who were shown as the
owners of the land in the revenue records.
Respondents
3 to 6 informed the Collector (first respondent) that they were only life
estate holders and that the vested remaindermen should be served with notice.
But notice was not issued to them. On the other hand, second respondent passed
an award on 3.6.1997. Thereafter, possession of the acquired lands was taken
and made into plots and distributed to intended beneficiaries.
3.
Appellants 1 to 4 filed a writ petition alleging that the acquired
lands originally belonged to one S. Kanthimathinatha Pillai; that under a
registered will, he bequeathed the said lands to his grandchildren (appellants
and respondents 7 to 18) subject to a life interest in favour of his sons
(respondents 3 to 6); and that thus the appellants and respondents 7 to 18, who
were the children of respondents 3 to 6, were the vested remaindermen in regard
to the said lands. They contended that the acquisition proceedings were illegal
and liable to be quashed for want of notice of acquisition to the vested
remaindermen who were persons interested. The said contention raised in the
writ petition was purely a legal contention.
A learned
Single Judge of the Madras High Court accepted the said legal contention and
held that the acquisition without issue of notice to them was illegal. He
therefore allowed the writ petition by order dated 13.11.2001 and set aside the
acquisition, reserving liberty to respondents 1 and 2 to initiate fresh
acquisition proceedings after appropriate notice to the writ petitioners. The
order of the learned Single Judge was challenged by respondents 1 and 2 in a
writ appeal.
4.
A division bench of the High Court, by the impugned order dated
17.3.2008, allowed the appeal, set aside the order of the learned Single Judge,
and dismissed the writ petition. The division bench held that the Collector was
not obliged to serve the notice of acquisition on anyone other than the persons
whose names were entered in the revenue records as owners; and that as the
vested remaindermen, had not got their names entered as holders/owners in the
revenue records, they were not entitled to any separate notice. The division
bench also issued a direction to respondents 1 and 2 herein to initiate
criminal action against the appellants and private respondents 7 to 18 herein
"for playing fraud on the Government and the Court, for making wrongful
gains by filing a writ petition which was not maintainable." The
appellants have challenged the said judgment.
5.
The first question is whether the vested remaindermen of acquired
lands were entitled to notice of acquisition, even if their names were not
entered in the revenue records. The Collector (or others exercising the
functions of Collector) is required to issue, in addition to the public notice
to all persons interested, individual notices to persons known or believed to
be interested in the acquired land. There is a significant difference between
`persons known or believed to be interested' and `persons interested'. A
`person interested' no doubt would include all persons claiming an interest in
the compensation on account of the acquisition of land, including the vested
remaindermen.
6.
On the other hand, `a person known to be interested' refers to
persons whose names are recorded in the revenue records, as persons having an
interest in the acquired lands, as the owner, sharer, occupier or holder of any
interest. They are entitled to notice. There is no obligation on the part of
the Collector to hold an enquiry to find out whether there are any other
persons interested in the land or whether there are any vested remaindermen, in
addition to those whose names are entered as the owners/holders/occupiers of
the acquired land. Nor does the Collector have any obligation to issue notices
to persons whose names are not entered in the revenue records. This does not
mean that the persons whose names are not entered in the revenue records do not
have any right in the acquired land or that they lose their claim to
compensation. Their interests and rights in regard to compensation are
protected by the provision relating to apportionment of compensation and
provision for referring the disputes to a civil court for apportionment of
compensation.
7.
Persons are "believed " to be interested in the acquired
land, if their names are disclosed to the Collector as persons having an
interest in the acquired land (though their names are not entered in the
revenue records) either in correspondence or otherwise and whom the Collector
believes as having an interest in the acquired lands. The question whether a
person is believed to be interested in the acquired land, would depend upon the
subjective satisfaction of the Collector. The Collector is not expected to hold
mini enquiries to find out whether the persons whose names are disclosed,
(other than those whose names are entered in the revenue records) are persons
interested in the acquired land or not. Therefore no person has any right to
assert that the Collector should recognise him to be a person interested in the
acquired land, and issue notice to him, merely because someone informs the
Collector that such person is also having an interest, if his name is not
entered in the revenue records. Of course, if the Collector is prima facie
satisfied from his records that someone other than those whose names are
entered in the revenue records, are also interested in the land, he may at his
discretion, issue notice to them. If he is not satisfied, he need not issue
notice to them. Who is to be `believed to have an interest' is purely
subjective administrative decision. Such persons have no right to claim that
notice of acquisition should be issued to them.
Therefore
we agree with the division bench that notice of acquisition has to be issued
only to those whose names are entered or recorded as owners/ holders/occupiers
in the revenue records and not to others.
8.
The next question is whether the High Court could have directed
prosecution of writ petitioners and the private respondents. Let us recall the
facts relevant once again in this context. Respondents 3 to 6 are the life
interest holders whose names are entered in the revenue records. Appellants and
respondents 7 to 18 are their children, who are the vested remaindermen in
regard to the acquired lands. Notices were served in the acquisition proceeding
on respondents 3 to 6. They stated that they were only life-interest holders
and notice should be served on the vested remaindermen also. But that was not
accepted and the acquisition was completed. A writ petition was filed by the
appellants challenging the acquisition on the ground that the vested
remaindermen in regard to the acquired lands were not issued notice of
acquisition. It is relevant to note that they did not allege or contend that
they did not have knowledge of the acquisition. The learned Single Judge
accepted the contention and set aside the acquisition proceedings. In the writ
appeal, respondents 1 and 2 contended that the persons other than those whose
names were entered in the revenue records were not entitled to notice and
therefore the learned Single Judge had erred in quashing the acquisition, that
too after possession of the acquired lands was taken and they were distributed
as plots to landless weaker sections. It was not the case of respondents 1 and
2 that the persons claiming to be vested remaindermen were served any notice.
The Division Bench allowed the writ appeal filed by respondents 1 and 2 herein.
9.
The Division Bench reversed the decision of the learned Single
Judge purely on a legal ground, that the persons whose names are entered in the
revenue records as owners, are alone entitled to notice, and others though may
have an interest, will not be entitled to notice of acquisition. It did not
record any finding that the claim of the writ petitioners (appellants herein)
that they and respondents 7 to 18 were the vested remaindermen, was false.
The
division bench however drew an inference that the persons claiming to be the
vested remaindermen, being close relatives of the persons who were served
notices, should be imputed with the knowledge of the acquisition proceedings
and therefore their writ petition contending that they did not have notice of
the acquisition, was misconceived. But what was missed was the fact that the
specific contention of appellants was that they were entitled to notice of
acquisition from the Collector and that such notice was not given, and that
they did not contend that they did not have knowledge of acquisition. There was
also no material to show that the writ petitioners and the private respondents,
who are ordered to be prosecuted, had furnished any false information or made
any false claim. There was no evidence of any fraud. When a writ petition is
filed seeking to enforce or protect the interests or rights of the writ
petitioners, purely based on legal contentions, it cannot be termed that filing
of the writ petition was "playing of a fraud by the writ petitioners
against the Government or court."
10.
Courts should avoid the temptation to become authoritarian. We
have been coming across several instances, where in their anxiety to do
justice, courts have gone overboard, which results in injustice, rather than
justice. It is said that all power is trust and with greater power comes
greater responsibility.
The power
to order a prosecution has to be used sparingly and in exceptional
circumstances, either to maintain the majesty of law or to ensure that clearly
established offences relating to fraud/forgery with reference to court
proceedings do not go unprosecuted or unpunished. Ordering prosecutions in a
casual manner while reversing the decision of a learned Single Judge in a writ
petition, without any investigation or enquiry either by itself or by any
independent investigation agency, is to be deprecated. Criminal law cannot be
set into motion against a litigant, as a matter of course.
11.
On several occasions, this Court has deprecated certain
authoritarian practices which result in hardship and prejudice to litigants and
even non-parties. The well-known instances are : (1) passing adverse remarks
against government officers or others who are not parties to the lis, without
giving an opportunity to them to show-cause or justify their action; (2)
directing the state to recover any losses or damages or costs from a particular
officer (who is not a party) by holding him personally liable for some alleged
act or omission, without giving him any opportunity to explain his position,
conduct or action; (3) directing prosecution of parties and/or non-parties, in
cases which merely warrant levy of costs or admonition.
12.
Under the Indian Penal Code, offences relating to false evidence
and offences against public justice are contained in Chapter XI. In relation to
proceeding in any court, the offences enumerated are : giving false evidence or
fabricating false evidence (Sec. 191 to 193); giving or fabricating false evidence
with intent to procure conviction (Sec. 194 and 195); threatening any person to
give false evidence (Sec. 195A); using evidence known to be false (Sec. 196);
using as true a certificate known to be false (Sec. 198); making a false
statement in a declaration which is by law receivable as evidence (Sec. 199);
using as true any declaration receivable as evidence, knowing it to be false
(sec.
200)
causing disappearance of evidence of offence, or giving false information to
screen offender (Sec. 201); intentional omission to give information of offence
by person bound to inform (Sec. 202);
giving
false information in respect of an offence (Sec. 203);
destruction
of document or electronic record to prevent its production as evidence (Sec
204); false personation (sec. 205);
fraudulent
removal/concealment of property (sec. 206); fraudulent claim to property (sec.
207); fraudulently suffering or obtaining decree for sum not due (sec. 208 and
210); dishonestly making a false claim in Court (Section 209); and intentional
insult or interruption to public servant sitting in judicial proceedings (sec
228). Section 195 of Code of Criminal Procedure provides that no court shall
take cognizance of any offence punishable under sections 172 to 188 (dealing
with the contempt of the lawful authority of public servants) or sections 193
to 196, 199, 200, 205 to 211 and 228, when such offence is alleged to have been
committed in, or in relation to, any proceeding in any court, except on the
complaint in writing of that court by such officer of the court as that court
may authorise in writing in this behalf, or of some other court to which that
court is sub-ordinate.
13.
The Division Bench has directed that the respondents in the writ
appeal before it (appellants and respondents 3 to 18 herein) should be prosecuted
"under the relevant provisions of law, including IPC, for playing a fraud
on the Court with wrong particulars". The Division Bench has not specified
the provision under which they should be prosecuted nor the offence of which
they are accused. The only provision of relevance is section 209 of the Penal
Code, which provides that whoever, fraudulently or dishonestly, or with intent
to injure or annoy any persons, makes in a court any claim which he knows to be
false, is liable to punishment as provided under law. But four things stand out
in this case. The first is that raising a purely legal contention in a writ
petition cannot give rise to an inference that the writ petitioners had
fraudulently or dishonestly or with intent to injure or annoy anyone, made any
claim knowing it to be false. The second is that there was also no material
before the division bench to show that any person having an interest in the
acquired lands had played fraud upon the government or the court. The third is
that respondents 7 to 18 who had neither initiated any legal proceedings, nor
took any action in the matter, could not have been ordered to be prosecuted,
thereby showing non-application of mind in issuing the direction for
prosecution. The fourth is that if a fraud had been played on the court, the
High Court ought to have made a complaint in writing through an authorised
officer of the court, instead of directing respondents 1 and 2 to prosecute the
parties.
14.
On the facts and circumstances, the direction to initiate criminal
prosecution against the appellants and the respondents 3 to 18 was wholly
unwarranted. We therefore allow this appeal in part and set aside the direction
to initiate criminal proceedings against the appellants and respondents 3 to
18.
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