Mukkalathor Sanga Abiviruthi Elementary School vs The Tahsildar

T. Raja, J.—The present Writ Appeal has been filed by the Appellant against the order by the learned Single Judge passed in W.P. No. 6992 of 2010 dated 08.10.2010.

Heard the learned Counsel for the Appellant and perused the materials available on record carefully.

The Appellant-Mukkalathor Sanga Abiviruthi Elementary School came to be started by the grandfather of Mr. Balanathan claiming to be the Secretary of the Appellant''s School, in Keezha Uppilikundu, Kariapatti Taluk, Virudhunagar District about 60 years ago in the year 1952. Due to some dispute as to whether the School belongs to the Community or the entire village, a civil suit was also filed. But, the said civil suit finally came to be disposed of declaring that the Appellant School belonged to the the entire village. Subsequently, the Educational Society which was running the school, became defunct and thereafter, the present Appellant''s society was started and registered under the Tamil Nadu Societies Registration Act 1975. The said Educational Society comprising of all members from various communities of the village started claiming the said school. It was also mentioned that after the suit was filed, the Appellant School came under direct payment system from the year 1972 and the School was managed directly by the Education Department till 2002. Subsequently, when the School became defunct, the present Appellant once again took steps to revive the Educational Agency by applying to the revenue authorities seeking licence to run the school and filed another application to the Educational Authorities to regularise the Appellant as the Secretary to the School.

It was also mentioned by the learned Counsel appearing for the Appellant that the District Elementary Educational Officer approved the appointment of one Balanathan as the Secretary of the Appellant School and he submitted the necessary documents for the purpose of obtaining solvency certificate, stability certificate and fire department certificate and also applied for the building licence to the Tahsildar, Kariapatti Taluk, Virudhunagar District/the present Respondent herein. The Respondent Tahsildar, by order dated 25.08.2007 refused to grant a building licence on the ground that school building is situated in a tank bund.

Aggrieved by the said order passed by the present Respondent, the Appellant filed a Writ Petition in W.P.(MD) No. 9060 of 2007.

During the pendency of the said writ petition, by taking note of the the refusal of Tahsildar to grant building licence, the Deputy Director of Health Services also refused to grant sanitary certificate. As a result of the refusal by the Deputy Director of Health Services, the District Elementary Education Officer also passed an order dated 11.01.2008 declining to accord the approval for the appointment of the Secretary of the School Committee and refused permission to restart the school.

Aggrieved by the order of the District Elementary Education Officer, the person nominated as the Secretary of the School filed a writ petition in W.P.(MD) No. 4234 of 2008.

These two writ petitions were taken up together by the learned single Judge and after considering the common issues involved in both writ petitions, the said petitions finally came to be dismissed by a common order dated 17.09.2008. It is relevant to extract paragraph Nos. 5, 6 and 7 of the afore said order for the purpose of proceeding further in this matter:

On notice from this Court, the Assistant Elementary Education Officer, Kariapatti, has filed a counter affidavit, dated 10.01.2008, wherein it is stated that the Petitioner''s association cannot be recognised as an "educational agency" as disputes were going on between the Petitioner educational agency and other villagers and suits are pending in various Courts. Only when a Society is registered under the Tamil Nadu Registration of Societies Act, it can make a representation under the name of the said Society.

Apart from that the Society cannot be approved unless it is recognised by the registration department or any Civil Court granting such status as a successor of the previous body. Further, seeking for licence in a Government poramboke is impermissible and hence, the Petitioner''s prayer cannot be considered.

In the light of the above, the Petitioner has not made out any case to entertain these writ petitions. These two writ petitions are misconceived, devoid of merits and liable to the dismissed and accordingly, they are dismissed. Connected M.P.s are closed. No costs.

Aggrieved by that common order dated 17.09.2008, W.A.(MD)Nos. 17 and 18 of 2009 were filed before the Division Bench of this Court.

By order dated 01.07.2009, the Division Bench of this Court by taking note of the fact that the School in question being an elementary school in existence for more than 55 years, remanded the matter back to the Tahsildar, Kariyapatti Taluk, Virudhunagar District to decide about the grant of building licence to run the school and also further remanded another issue back to the District Elementary Officer, Virudhunagar District, to find out the viability of grant of approval for the appointment of the Secretary of the School committee, by taking into account the character of the land on which the school is located.

Pursuant to the order passed by this Court in the above said W.A.(MD)Nos. 17 and 18 of 2009 dated 01.07.2009 and on the basis of another order passed by this Court in W.P. No. 20186 of 2000 dated 27.06.2005 directing the Revenue Authorities that the encroachments in the water bodies like Kanmai, bund, Kulam and channel should be removed so as to protect all those Kulam, bund and Channel, the Tahsildar, Kariapatti Taluk, Virudhunagar District/the Respondent herein, finally passed an order dated 05.09.2009 rejecting the request of the Petitioner to grant building licence to run the school in the land classified as Kanmai(Lake) Poramboke. Consequently, the Tahsildar, Kariapatti Taluk, Virudhunagar District also passed another order dated 15.05.2010.

Aggrieved by the order dated 05.09.2009 passed by the Tahsildar, Kariapatti Taluk, Virudhunagar District, rejecting the request of the Petitioner to grant building licence, again the Appellant filed a Writ Petition in W.P.(MD) No. 9086 of 2009 seeking prayer to quash the order dated 05.09.2009 with consequential prayer to direct the Respondent/ Tahsildar, Kariapatti Taluk, Virudhunagar District to grant public building licence on the Appellant''s application dated 21.08.2009.

Consequently, the learned Single Judge, by referring the order passed by the learned Division Bench of this Court in W.A.(MD)Nos. 17 and 18 of 2009, dismissed the said writ petition, by order dated 23.12.2009.

Once again, the Appellant approached the Tahsildar, Kariapatti Taluk, Virudhunagar District, the Respondent herein, by representation dated 05.04.2010 seeking building licence in favour of Mukkalathor Sanga Abiviruthi Elementary School to run the school in the disputed place. Again the same Tahsildar, Kariapatti Taluk, Virudhunagar District, by taking into account that the Appellant Mr. Balanathan, being not the owner or the proprietor of the said school, rejected the case of the Appellant. The said order dated 15.05.2010 was once again challenged by W.P.(MD) No. 6992 of 2010.

The learned Counsel appearing for the Appellant placed two fold submissions. Firstly, he has opposed the order of the learned Single Judge in holding that the Appellant Balanathan who claims to be the Secretary of the Petitioner''s School is not the owner of the land, in which the school in question is located for the purpose of granting building licence to the school by referring to Section 2(7) of the Tamil Nadu Public Buildings(Li-censing) Act, 1965. As per the said Section, the owner includes, any person or authority to whom or to which the possession of, and control over the affairs of, the building has been entrusted, whether such person or authority is called a managing trustee, an agent, a correspondent, manager, superintendent, secretary or by any other name whatsoever. The learned Counsel attempts to equate the said Balanathan as Secretary or the agent of the Petitioner''s School. Therefore, it was pleaded that Mr. Balanathan who is said to be the Secretary of the Petitioner''s school without going to issue of title and ownership of the Petitioner''s school, on the application made by Balanathan, who is the Secretary of the Petitioner''s school, the Tahsildar, Kariapatti Taluk, Virudhunagar District, should have granted the building licence. This contention is misplaced one, since the place in which the Petitioner''s school situated itself is classified as Kanmai Poramboke, the Respondent/Tahsildar, Kariapatti Taluk, Virudhunagar District, has refused to issue building licence for the Petitioner''s school. When the place in which the school situated is itself the Kanmai Poramboke, the contentions raised to grant building licence to run the Petitioner''s school at the instance of the Secretary of the Petitioner''s school, has been rightly rejected by the learned Single Judge.

The learned Single Judge, rejected the said Writ Petition on the ground that the Tahsildar, Kariapatti Taluk, Virudhunagar District had taken into consideration all the relevant factors while rejecting the request of the Appellant to grant public building licence to the school in question. Further, it was held that the Appellant Balanathan who is said to be the Secretary of the Appellant School, is not in a position to show that he is the owner of the land in which the school in question is located, by referring Section 4 of the Tamil Nadu Public Buildings(Licensing) Act, 1965, it was held that only the owner of the building in question can apply for grant of building licence. Since Balanathan is not in a position to show that he has the title in respect of the land, in which the school in question is located, it cannot be said that the impugned order dated 15.05.2010 passed by Tahsildar, Kariapatti Taluk, Virudhunagar District is arbitrary, erroneous or invalid in the eye of law. Section 4 of the Tamil Nadu Public Buildings(Licensing) Act, 1965 is extracted as under:

Application for licence:

(1) Any owner, who intends to use any building(not being an existing public building) as a public building shall make an application in writing to the competent authority for a licence therefore.

(2) Any owner, who intends to continue to use an existing public building as a public building, shall before the date of the expiry of a period of six months from the date of the commencement of this Act, make an application in writing to the competent authority for a licence therefore.

(3) Every application under Sub-section (1) or Sub-section (2) shall be in the prescribed form and shall contain the following particulars, namely:

(i) the name and address of the owner of the building or the existing public building, as the case may be;

(ii) the situation and description of the building or the existing public building, as the case may be;

(iii) the purpose for which the building or the existing public building as the case may be, is proposed to be used or is being used; and

(iv) such other particulars as may be prescribed.

(4) An application under Sub-section (1) or Sub-section (2) may be accompanied by a certificate of structural soundness in the prescribed form obtained from an engineer.

Further it is useful to refer to Section 2(7) of the said Act which is given as under:

"2(7). "owner" includes-

(i) a lessee;

(ii) a licensee

(iii) a mortgage in possession; and

(iv) any person or authority to whom or to which the possession of, and control over the affairs of, the building has been entrusted, whether such person or authority is called a managing trustee, an agent, a correspondent, manager, superintendent, secretary or by any other name whatsoever

A mere reading of the above said provisions clearly shows that a owner includes a lessee; a licensee; a mortgagee in possession and any person or authority to whom or to which the possession of and control over the affairs of, the building has been entrusted.

In the present case, the Appellant is not in a position to show that he has got the title or licence in respect of the land in which the school in question is located. Further, the permission to run the school also till date has not been granted by any Authority on the ground that the Revenue Authorities have already rejected the case of the Appellant for grant of licence to the school in question, on the ground that Survey No. 6 of Keezha Upplikundu village is classified in the revenue records as Kanmai Poramboke. Admittedly, the village is situated on the southern bank of the kanmai. Therefore, a bund has been created in order to prevent the water entering from the village, when the bank gets filled-up due to the storage of the rain water.

The learned Single Judge had gone through the various instructions of the Commissioner of Land Administration, in Circular T1-PD/314/09 and the other instructions of the State Government stating that water bodies like kulam, kuttai, channel and other catchments ought to be preserved. As per G.O.M.S. No. 105/Revenue Department, dated 07.03.2001 encroachments made on water bodies were directed to be removed. On the basis of the above said G.O.M.S. No. 105/Revenue Department, dated 07.03.2001, a Division Bench of this Court in W.P. No. 20186 of 2000 dated 27.06.2005 in L. Krishnan Vs. State of Tamil Nadu and Others, , had directed the removal of encroachments in Odai Poramboke and in other water bodies which are being used for the purpose of storage of water.

In the light of the above said orders as well as the judgment of this Court in the case of L. Krishnan as cited above, the learned Single Judge, after finding that the school in question is located in Survey No. 6 of Keezha Uppilikundu Village, which is classified in the revenue records as "Kanmai Poramboke", declined to interfere with the impugned order passed by the Tahsildar, Kariapatti Taluk, Virudhunagar District, dated 15.05.2010.

We are also of the view that the Revenue Authorities have declined to grant the public building licence for the school on the ground that it is situated in the land that has been classified in the revenue records as "Kanmai Poramboke". The said order does not call for any interference from us.

In respect of the second submission that when he made a request to the learned Single Judge, for his recusal from hearing the Petitioner, it was argued that the learned Single Judge has wrongly held that such a request would amount to "forum shopping". On that Count, he was imposed with a cost of Rs. 5,000/- (Rupees five thousand only). The Appellant had repeatedly filed writ petitions. In one such occasions, when one of the Writ Petitions in W.P.(MD) No. 9086 of 2009 was listed before the learned Single Judge, seeking to quash the earlier order passed by the very same Tahsildar, Kariapatti Taluk, Virudhunagar District, refusing to grant public building licence on the Appellant''s application while dealing with the same issue for the same relief, the learned Single Judge had rejected the writ petition, on the basis of a Division Bench judgment of this Court in the case of L. Krishnan Vs. State of Tamil Nadu and Others, .

Again, in the second round, when another writ petition came up before the learned Single Judge, the learned Counsel appearing for the Appellant, to avoid an adverse order, made a request to the Judge to recuse himself from hearing the subsequent writ petition viz., W.P.(MD) No. 6992 of 2010. When the learned Single Judge was asked not to hear the writ petition by the learned Counsel appearing for the Appellant, for the reason that he had already heard one of his five writ petitions to avoid any adverse order, thinking that the counsel wanted to avoid his court, the learned Single Judge was of the view that the prayer of the Petitioner for recusal of the case would amount to forum shopping and thus decided the case on merits. It is pertinent to keep in mind Section 114 of CPC that provides for review of judgment of the Court which passed a decree or made an order as it thinks fit. Similarly Article 137 of the Constitution of India also provides the Honourable Apex Court to review any judgment pronounced or order made by it. When the review provisions are made as statutory rights to review its previous order by the same court viz., the same judge, who passed the previous order, the request made by the learned Counsel appearing for the Appellant to recuse the learned Single Judge for the reason that he had already dismissed a similar writ petition, would be nothing but amounting to "forum shopping". Therefore, the learned Single Judge has imposed a cost of Rs. 5,000/- (Rupees Five Thousand only) for his attempt to do "forum shopping". The word "forum shopping" means choosing the most favourable jurisdiction or court in which the claim might be heard. Generally, the High Court must discourage the forum shopping on the principle that a person seeking equity himself do the equity. A party cannot take court to machination which means to abuse the process of court. The Apex Court in the case of M/s. Chetak Construction Ltd. Vs. Om Prakash and Others, has held in paragraph 6 that a litigant cannot be permitted the choice of the forum and every attempt at forum shopping must be crushed with a heavy hand. In another case of In Re: Ajay Kumar Pandey, , the Apex Court has held in paragraph 8, whereof that the prayer of the applicant to transfer the case to "another bench" as he does not "wish to appear before the Bench" apart from being itself contumacious is rejected because a litigant cannot be permitted forum shopping. The case stands assigned to this Bench. The Honourable Apex Court in the case of R.K. Anand Vs. Registrar, Delhi High Court, has held in paragraphs 263 and 264, what is recusal, which are extracted as under:

"The path of recusal is very often a convenient and a soft option. This is especially so since a Judge really has no vested interest in doing a particular matter. However, the oath of office taken under Article 219 of the Constitution of India enjoins the judge to duly and faithfully and to the best of his knowledge and judgment, perform the duties of office without fear or favour, affection or ill will while upholding the Constitution and the laws. In a case where unfounded and motivated allegations of bias are sought to be made with a view of forum hunting/Bench preference or browbeating the court, then, succumbing to such a pressure would tantamount to not fulfilling the oath of office."

The above passage, in our view, correctly sums up what should be the court''s response in the face of a request for recusal made with the intent to intimidate the court or to get better of an "inconvenient" Judge or to obfuscate the issues or to cause obstruction and delay the proceedings or in any other way frustrate or obstruct the course of justice.

We are constrained to pause here for a moment and to express grave concern over the fact that lately such tendencies and practices are on the increase. We have come across instances where one would simply throw a stone on a Judge (who is quite defenceless in such matters) and later on cite the gratuitous attack as a ground to ask the Judge to recuse himself from hearing a case in which he would be appearing. Such conduct is bound to cause deep hurt to the Judge concerned but what is of far greater importance is that it defies the very fundamentals of administration of justice. A motivated application for recusal, therefore, needs to be dealt with sternly and should be viewed ordinarily as interference in the due course of justice leading to penal consequences.

After considering the principles enunciated in the judgments cited supra, this Court is not inclined to interfere with the order of the learned Single Judge imposing the cost of Rs. 5,000/- (Rupees Five Thousand only).

Accordingly, the Writ Appeal stands dismissed. No costs.