P. Sugumar vs The District Collector, Theni District and Others

S. Manikumar, J—The present writ appeals have been filed against the common order, dated 09.07.2014, passed in W.P.(MD) Nos. 4393 of 2006 and 14005 of 2012.

In W.P.(MD) No. 4393 of 2006, the appellant/petitioner has sought for a writ of mandamus, directing the District Collector, Theni District, the first respondent herein, to conduct enquiry based on the his complaint, dated 22.08.2005, and as per the direction of the National Commission for Scheduled Castes, dated 14.09.2005, vide File No. 7/28/2005. He has also sought for a prayer to prevent the Tahsildar, Bodinayakanur Taluk, Theni District, the third respondent, from conducting parallel enquiry in respect of the same issue.

In W.P.(MD) No. 14005 of 2012, the respondents 1 to 4 are one and the same. In addition to the above official respondents, there are two private parties impleaded as respondents 5 and 6. In the said writ petition, the appellant/petitioner has sought for a mandamus, directing the District Collector, Theni District, to initiate appropriate action on the basis of his representation, dated 28.09.2012, and pass orders, in accordance with law and consequently prayed for a direction for removal of fencing and boundary stones, allegedly put-up by respondents 5 and 6, on the disputed land, situate in between Kodangipatti and Meenakshipuram, Bodinayakanur Taluk, Theni District.

Facts deduced from the impugned common order, dated 09.07.2014, made in W.P.(MD) Nos. 4393 of 2006 and 14005 of 2012, and the materials on record are that the appellant/petitioner belongs to Scheduled Caste community and he is an agriculturist, by profession. According to him, he is the owner of the properties comprised in Survey Nos. 251/4B, 251/4A and 252/2C, 2B, 2A and 738 Part in Durairajapuram Village, Theni District and on his application, his properties were surveyed, boundaries were fixed and therefore, there was no more requirement for any further survey. While so, according to appellant/petitioner, the then Tahsildar of Bodinyakanur, along with Firka Surveyor, visited the above properties and attempted to survey at the instance of the adjacent owner Mr. Ratna Nadar.

Alleging that the above action of the Tahsildar, Bodinayakanur Taluk, the 3rd respondent herein, and others, would attract offences falling within the ambit of Section 3(1)(iv) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, (in short "the Act"), the appellant/petitioner had made a complaint to the State Human Rights Commission, the Director of SC/ST Commission and the Inspector of Police, PCR Wing, Theni District, and others. In response to the complaint made to the National Commission for Scheduled Castes, the Commission, by its proceedings, dated 14.09.2005, directed the District Collector, Theni District, the first respondent in both the writ appeals, to make an enquiry into the allegations and take further action. Alleging that no action was taken, the appellant/petitioner has filed W.P. (MD) No. 4393 of 2006, seeking for a direction to the District Collector, Theni District, to conduct an enquiry, expeditiously, based on his complaint dated 22.08.2005, as directed by the National Commission for Scheduled Castes and to prevent the Tahsildar, Bodinayakanur Taluk, from conducting any parallel enquiry, in respect of the same issue.

Material on record further discloses that while W.P. (MD) No. 4393 of 2006 was pending, alleging that two persons, arrayed as respondents 5 and 6 in W.P. (MD) No. 14005 of 2012, with their hooligans, have forcibly entered into the abovesaid properties and made survey of the property, on their own, without making any proper application to the Revenue Authorities, the appellant/petitioner made another representation, dated 28.09.2012, to the authorities. Contending inter alia that no action was taken, the appellant/petitioner has filed W.P. (MD) No. 14005 of 2012 seeking for a writ of mandamus, directing the District Collector, Theni District, the first respondent, to initiate appropriate action on the basis of the representation, dated 28.09.2012, given by him.

Adverting to the above averments and submissions, the Writ Court firstly decided to take-up W.P. (MD) No. 4393 of 2006. On the contention that the action of the Tahsildar, Bodinayakanur, in making an attempt to survey the land, would amount to an offence falling under Section 3(1)(iv) of the Act, the Writ Court, has observed that if that was the grievance of the appellant/petitioner, he could have very well gone before the superior police officer, as provided for in Section 154 of the Code of Criminal Procedure or otherwise, he could have preferred a private complaint, as provided for under Section 156(2) or Section 200 Cr.P.C., as the case may be. The Writ Court has relied on a decision of the Hon''ble Supreme Court in Sakiri Vasu Vs. State of U.P. and Others, AIR 2008 SC 907 : (2008) 106 CLT 354 : (2007) 13 JT 466 : (2008) 2 SCC 409 : (2007) 12 SCR 1100 : (2008) AIRSCW 309 : (2008) 8 Supreme 226 ., wherein, the Hon''ble Supreme Court has held that when an alternative remedy is very much available to the party aggrieved, the jurisdiction of the High Court under Article 226 of the Constitution of India or under Section 482 Cr.P.C. need not be exercised. Perusal of the common order of the writ court also shows that the writ court has posed a specific question to the learned counsel for the appellant/petitioner, as to what harm had been caused by mere visiting the property by the Tahsildar, Bodinayaknaur and the writ court has also observed that the appellant/petitioner had not explained as to how a mere visit by the Tahsildar to the property would amount to an offence under Section 3(1)(iv) of the Act. Further, reading of the common order also discloses that after the visit, the Tahsildar, Bodinayakanur Taluk, Theni District, had not passed any orders nor there were any material to hold that he had damaged the boundary or any other features of the property of the appellant/petitioner.

On the aspect of implementing the directions of the National Commission for Scheduled Castes and Scheduled Tribes, the Writ Court has observed that it is not a statutory body, vested with any statutory power to direct any authority to hold an enquiry. Above all, the Tahsildar, against whom allegations have been made, as if he had committed an offence under Section 3(1)(iv) of the Act, had not been impleaded as a party to the proceedings, in his personal capacity. Thus, considering the allegations made against the Tahsildar with reference to the action of visiting and measuring the property, the Writ Court, by observing that the appellant/petitioner has abused the process of the Court, without resorting to any alternative remedies stated supra, dismissed the W.P. (MD) No. 4393 of 2006.

As regards W.P. (MD) No. 14005 of 2012, it is the grievance of the appellant/petitioner that private respondents 5 and 6 have entered into his property, surveyed the same, without any application being submitted to the revenue authorities. On the request for issuance of mandamus to take appropriate action on his representation, dated 28.02.2012, the writ court, by observing that if entry of respondents 5 and 6 into the property in question was contrary to law, action could have been taken against them for criminal trespass, which the appellant/petitioner has failed to do so. On the facts and circumstances, the writ court has further observed that it is not the case of the appellant/petitioner that though the revenue officials were very much present, private respondents trespassed into the property. Thus, adverting to the averments and submissions, and the materials on record, the Writ Court, by observing that both the writ petitions are vexatious, dismissed the same. Though the writ court was of the opinion that costs should have been imposed on the appellant/petitioner, considering the request of the learned counsel, it has desisted from doing so, with the hope that the appellant/petitioner would not file any such vexatious litigations in future, wasting the time of the Court.

Though the writ court has observed that the writ petitions are vexations, the present writ appeals have been filed, reiterating the same averments, in the form of grounds.

During the course of hearing of the appeals, the attention of Mr. V.R. Venkatesan, learned counsel appearing for the appellant, was invited to Section 3(1)(iv) of the Act and he was posed with a question as to whether there was any attempt on the part of the Tahsildar, Bodinayakanur Taluk, Theni District, to transfer the land allotted to the appellant/petitioner to somebody, his answer was not clear. Learned counsel for the appellant/petitioner further admitted that the disputed land was not allotted to the appellant/petitioner by any competent authority. At this juncture, we deem it to extract section 3(1)(iv) of the Act, which reads as under:

"3. Punishments for offences of atrocities.--(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,--

...... ...... .....

(iv) wrongfully occupies or cultivates any land owned by, or allotted to, or notified by any competent authority to be allotted to, a member of a Scheduled Caste or a Scheduled Tribe or gets the land allotted to him transferred

..... ...... ....

shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine."

Insofar as the allegations against the Tahsildar, Bodinyakanur Taluk, Theni District, that he made a visit and measured the disputed property, the said action would certainly, not fall within the ambit of Section 3(1)(iv) of the Act and would not constitute an offence under the provisions of the Act. Such being the position and on the submissions of the learned counsel for the appellant/petitioner now recorded, the very representation sent to the National Commission for Scheduled Castes, New Delhi, is a misuse of the provisions of the Act. We wish to reiterate that mere entry or survey of the land would not constitute an offence, unless and until, the ingredients of the offence, are satisfied. Apart from the above, as rightly observed by the writ court, the appellant/petitioner was not remedy less. He had not filed any complaint to the higher police official nor any private complaint under Sections 154 or 200 Cr.P.C., as the case may be, as stated supra. The decision of the Hon''ble Supreme Court in Sakiri Vasu case, relied on by the writ court, squarely applies to the facts of this case. During the course of hearing of the writ petitions, the appellant/petitioner has also admitted that no further order was passed by the Tahsildar nor any damage to the boundaries or physical features of the property was caused. Further, the Tahsildar has not been made as a party, in his personal capacity. Thus, after adverting to the entire materials on record, the writ court has passed a detailed order, dismissing W.P. (MD) No. 4393 of 2006.

Insofar as W.P. (MD) No. 14005 of 2012 is concerned, here again, the appellant/petitioner has not filed any complaint to the police under Section 154 Cr.P.C. against respondents 5 and 6 or filed a private complaint against them under Section 200 Cr.P.C. The decision in Sakiri Vasu case is equally applicable to the facts of the latter case also. The writ court has spent considerable time and passed a detailed order. There is absolutely no infirmity to interfere with the order of the writ Court. As rightly observed by the writ court, it is a fit case to impose costs. However, for the reasons recorded by the writ court at paragraph 12 of of its order, we also desist from doing so. The writ appeals are dismissed. No costs. Connected miscellaneous petitions are also dismissed.