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Part 7 S. Sasikumar v. Government of Tamil Nadu 713 (FB) (G.R. Swaminathan, J.) 2021 (1) CWC 713 FULL BENCH IN THE HIGH COURT OF MADRAS R. Mahadevan, N. Seshasayee & G.R. Swaminathan, JJ. W.A. Nos.2295 to 2308, 2325 to 2327, 2330 to 2333, 2350 to 2352, 2354 to 2365, 2367, 2373 to 2376, 2433, 2452 to 2460, 2466, 2467, 2472, 2473 & 2481 to 2483 of 2018 and connected Civil Miscellaneous Petitions 19.1.2021 W.A.(MD) No.2295 of 2018: S. Sasikumar .....Appellant Vs. Government of Tamil Nadu, rep. by the Secretary, Housing and Urban Development Department, Chennai-9. 2. Member Secretary, Chennai Metropolitan Development Agency, Chennai-8. 3. Chief Executive Officer, Chennai Metropolitan Development Authority, Chennai-8. 4. Chennai Pushpa Viyabarigal and Commission Agentugal Sangam, rep. by its President, Uthappan, No.18/2, Gangaiamman Koil Street, T. Nagar, Chennai-600 017 [4th Respondent is impleaded as per the Order of the Court made in C.M.P. No.6107 of 2020, dated 14.12.2020] .....Respondents Tamil Nadu Specified Commodities Markets (Regulation of Location) Act, 1996 (T.N. Act 24 of 1996), Sections 21(8)(a) & 2(5) — Mandate of Section 21(8)(a) — Competent Authority to take action against violations in Non-Market area — Wholesale trading of Specified Commodity can be carried on only in Market area earmarked, notified and declared under Section 4 of Act — Local Authority obliged to ensure Wholesale trade of Specified Commodity in Non-Market area discontinued — Market Committee established under Section 5 of Act has jurisdiction and control only over Market area, not Non-Market area — Held, Local Authority defined in Section 2(5) competent to act against Wholesale trade of Specified Commodities in Non-Market area — CMDA is Competent Authority in Chennai. (Paras 11 & 12) Tamil Nadu Specified Commodities Markets (Regulation of Location) Act, 1996 (T.N. Act 24 of 1996), Sections 21(8)(a) — Tamil Nadu Town and Country Planning Act, 1971 (T.N. Act 35 of 1972), Sections 56 & 57 — Interpretation of Statutes — Purposive interpretation — Authority to lock and seal premises — Doctrine of Implied Power — No specific provision in 1996 Act enabling Local Authority to lock and seal premises of violators — Power to stop unauthorized development by locking and sealing premises provided under Section 57(4) of 1971 Act — Held, by applying doctrine of Implied Powers, Local Authority possessed of power to lock and seal premises engaged in wholesale trading in Non-Market area — Section 21(8)(a) deemed to confer all incidental powers to Local Authority to enable discharging its mandate under Section 21(8)(a). [Paras 13, 14, 18(i)] Current Writ Cases / April 01 – 15/2021

714 CURRENT WRIT CASES 2021 (1) CWC Tamil Nadu Specified Commodities Markets (Regulation of Location) Act, 1996 (T.N. Act 24 of 1996), Section 21 — Power to determine if trader is Wholesaler or Retailer — Local Authority statutorily tasked to discontinue Wholesale trade in Specified Commodities outside Market area — Function of determining whether person indulging in banned activities, cannot be left to another Authority — Held, by Doctrine of implied Powers, Local Authority empowered to determine if individual carrying on Wholesale or Retail trade. (Para 15) Tamil Nadu Specified Commodities Markets (Regulation of Location) Act, 1996 (T.N. Act 24 of 1996), Sections 21 & 47 — Whether factual determination of Traders’ status as Wholesaler/Retailer to be preceded by Criminal prosecution under Section 47 — Local Authority empowered to determine if Noticee engaged in Wholesale or Retail trade — Post factual determination, Noticee must be directed to discontinue banned activity — Disregarding direction would entail appropriate action, including prosecution, by Local Authority to effect discontinuance of activity — Lock and seal is coercive measure for preventing continued commission of offence — Prosecution penalizes offender for contravening provisions of Act — Held, prosecution will follow factual determination, not precede it. [Paras 15 & 18(ii)] Tamil Nadu Specified Commodities Markets (Regulation of Location) Act, 1996 (T.N. Act 24 of 1996), Section 21 — Factual determination of Traders’ status as Wholesaler/Retailer — Procedure to be followed — Principles of Natural Justice to be followed by Authorities — Proceedings summary in nature — Orders to be well reasoned and indicate application of mind — Finding that Trader is Wholesale trader and not Retail trader must be founded in proper materials. (Para 16) Tamil Nadu Specified Commodities Markets (Regulation of Location) Act, 1996 (T.N. Act 24 of 1996), Section 21 — Doctrine of Proportionality — Eviction not directly contemplated in Statute — Act only mandates Wholesale trade in Specified Commodities to be confined to Specified Market area — Local Authority empowered to take coercive measure to enforce compliance — If affected person agrees to comply, Local Authority cannot continue to keep premises under lock & seal indefinitely — Statutory power not absolute, but must be construed in context of Doctrine of Proportionality — Measures taken by Local Authorities to satisfy parameters laid down in Anuradha Bhasin v. Union of India. (Para 17) CASES REFERRED Anuradha Bhasin v. Union of India, 2020 (3) SCC 637........................................................... 17 Bidi, Bidi Leaves and Tobacco Merchants’ Association v. State of Bombay, AIR 1962 SC 486 ..................................................................................................................................... 14 General Merchant Association, rep. by Secretary and Treasurer v. Corporation of Chennai, rep. by its Commissioner, 2000 (3) CTC 565 (DB)............................................ 15 Current Writ Cases / April 01 – 15/2021

Part 7 S. Sasikumar v. Government of Tamil Nadu 715 (FB) (G.R. Swaminathan, J.) Kamalammal v. Venkatalakshmi Ammal, AIR 1965 SC 1349................................................... 9 S. Sadasharam, Advocate for Appellant. J. Pothiraj, Special Government Pleader for Respondent No.1; P.H. Aravind Pandian, Additional Advocate General-II, assisted by S. Thiruvenkadam, Special Government Pleader for Respondent No.2; R. Arunmozhi, Standing Counsel for Respondent No.3; V. Lakshminarayanan for M.V. Seshachari, Advocate for Respondent No.4. REFERENCE ANSWERED Prayer : Writ Appeal is filed under Clause 15 of the Letters Patent, to set aside the Order passed in WP No.2392 of 2016, dated 9.10.2018 and pass such further or other Orders as this Court may deem fit and proper and render justice. Judgment Reserved on 14.12.2020 and Pronounced on 19.1.2021 JUDGMENT G.R. Swaminathan, J. 1. A Division Bench of this Court vide Order, dated 30.11.2018 made in W.A. No.2295 of 2018, etc., referred the following questions for determination by a Larger Bench: “(i) Whether the provisions of the Tamil Nadu Specified Commodities Markets (Regulation of Location) Act, 1996, in particular, Section 21 authorise the Authorities, namely, the Market Committee to lock and seal the premises, which are otherwise in lawful occupation of the Appellants and dispossess the persons who are otherwise in lawful occupation thereof for contravention of the provisions of the Act ? and (ii) Whether the determination of the factual question is as to whether the Appellants are carrying on Wholesale trade is left to the domain of the Market Committee or it should be preceded by a Criminal prosecution as contemplated under Section 47 of the Act ?” Pursuant to the Order of Reference, the Hon’ble Chief Justice constituted this Full Bench for answering the same. What led to the reference ?: 2. In George Town area in Chennai, Wholesale trade in various commodities was carried on. Badrian Street was known for Wholesale trade in flowers. Even the jurisdictional Police Station is known as Flower Bazaar Police Station. With rapid growth of population and commercial activities, the place became crowded leading to traffic congestion and gave rise to host of civic issues. Therefore, the Tamil Nadu Specified Commodities Markets (Regulation of Location) Act, 1996 (Tamil Nadu Act 24 of 1996) (hereinafter called as “the Act”) was enacted to deal with the situation not only in Chennai but also in other parts of Tamil Nadu. Vide G.O.(Ms) No.523, Housing and Urban Development Department, dated 17.12.1996, the Government of Tamil Nadu notified Koymbedu Market Complex as the Wholesale Market area. George Town, which includes Badrian Street became out of bounds for Current Writ Cases / April 01 – 15/2021

716 CURRENT WRIT CASES 2021 (1) CWC Wholesale business in perishable items such as flowers. Though a number of Wholesale merchants shifted to Koyambedu Market Complex, there were many who continued to do Wholesale business in flowers in Badrian Street. This led to institution of number of proceedings by both the parties. At the instance of the Wholesale Traders in flowers based at Koyambedu, the Commissioner of Corporation of Chennai initiated action in the year 2002. Earlier, they had filed W.P. No.9633 of 1999 before the Madras High Court seeking direction for removal of Shops put up by wholesale flower merchants in Badrian Street. The matter was eventually dealt with by the Hon’ble Division Bench in W.A. No.1990 of 2001. The Division Bench by Order, dated 4.10.2001 held that if a person is engaged in Retail trade, he can continue to do so in George Town area. But one cannot engage in Wholesale trade in specified commodities such as flowers outside the Koyambedu market complex. If they did, action can be taken. Pursuant to the direction from the Hon’ble Division Bench, the Commissioner of Corporation of Chennai issued Proceedings, dated 18.1.2002 rejecting the request of Badrian Street traders to continue to sell perishable Items at Badrian Street. 3. The said Order was set aside in W.P. No.1272 of 2002 on 14.11.2003 on the ground of violation of Principles of Natural Justice. The Commissioner of Chennai Corporation was directed to hold Enquiry and give a specific finding as to whether what is being carried on in Badrian Street is Retail business or Wholesale business. The Koyambedu Wholesalers filed W.P. No.26053 of 2004 for directing the Authorities to stop the Wholesale trade in perishable goods in Chennai Metropolitan Area except in Koyambedu Wholesale Market Complex. The said Writ Petition was disposed of by directing the Chennai Metropolitan Development Authority (hereinafter called as “CMDA”) to consider the representation made by the Koyambedu Wholesalers. Thereupon, the Member-Secretary, CMDA issued Order, dated 7.10.2004 directing the Badrian Street traders to stop Wholesale trade in perishable items and shift to Koyambedu Wholesale Market complex. This order was put to challenge in W.P. No.29809 of 2004. The said Writ Petition was taken up along with W.P. No.12909 of 2009 filed by the Koyambedu Wholesalers. Both the Writ Petitions were disposed of by a Common Order, dated 27.11.2009. In the said Order, the CMDA was directed to issue Show Cause Notice as well as Public Notice and pass Final Orders after giving opportunity of hearing to the affected parties. While passing the said Order, it was observed that traders found to carry on Wholesale trade in flowers in Badrian Street are bound to be evicted. 4. Pursuant to the said direction, the Member-Secretary, CMDA issued Eviction Notice, dated 12.2.2010 after conducting Public hearing. The aggrieved persons filed Appeals before the Government under Section 45 of the Act. The Appeals were dismissed vide G.O.(Ms) No.10, Housing and Urban Development Department (UD3-1), dated 6.1.2012. The Government instructed the Member-Secretary, CMDA to take further action along with Current Writ Cases / April 01 – 15/2021

Part 7 S. Sasikumar v. Government of Tamil Nadu 717 (FB) (G.R. Swaminathan, J.) the Chennai Corporation and Police Department for eviction of the Wholesale Traders at Badrian Street, George Town, Chennai-1. This was put to challenge in W.P. No.1589 of 2012. In the meanwhile, the Koyambedu Wholesalers filed W.A. No.693 of 2011 questioning the Common Order, dated 27.11.2009 made in W.P. Nos.29809 of 2004 & 12909 of 2009. The Hon’ble Division Bench closed the Writ Appeal since in the meanwhile the authorities had concluded the Enquiry and arrived at a finding that what was being carried on in Badrian Street was only Wholesale trade and not Retail trade. Citing the said Order, dated 7.7.2011 made in W.A. No.693 of 2011, the challenge to G.O.(Ms) No.10, dated 6.1.2012 was repelled and W.P. No.1589 of 2012 was dismissed. 5. The grievance of the Koyambedu Wholesalers was that the directions issued to or by the Authorities remained only on paper and not implemented on ground. Hence, they filed W.P. No.10852 of 2015 for implementation of G.O.(Ms) No.10, dated 6.1.2012. The said Writ Petition was disposed of on 15.4.2015 with a direction to the Member-Secretary, CMDA to look into their representation. Alleging that the said Order was not complied with, Contempt Petition No.2406 of 2015 came to be filed. CMDA filed “Action Taken Report” in the said Contempt Petition. It was pointed out therein that number of Shops were locked and sealed and that the Eviction process was very much on. Recording the said development, the Contempt Petition was closed. Alleging that Badrian Street traders have broken open the locks and re-entered the premises after removing the seals, Koyambedu Wholesalers filed W.P. No.10113 of 2016. Badrian Street traders filed a number of individual Writ Petitions challenging the action taken by CMDA. All the Writ Petitions were taken up together for disposal and vide Order, dated 9.10.2018, the learned Single Judge passed the following directions: “27. This being the factum of the case, this Court has no hesitation in passing the following Orders: (i) The relief as such sought for in all these Writ Petitions stand rejected. (ii) The Respondents are directed to lock and seal the premises of the Whole sale Traders including the premises of the Writ Petitioners in Badrian Street, George Town, Chennai-1 within a period of 48 hours from the date and time of the receipt of the copy of this Order through the official website of the Hon’ble High Court of Madras. (iii) The Respondents are directed to take Videograph of the implementation of the above directions. (iv) The Commissioner of Police, Greater Chennai Corporation is directed to provide adequate Police Protection for the competent officials for lock and seal the premises of the Wholesale Traders in Badrian Street, George Town, Chennai-1. (v) The Commissioner of Police, Greater Chennai Police, Chennai-7, is directed to install a Police booth in the vicinity of Badrian Street to ensure that no further Wholesale trade business is allowed either by the Writ Petitioners or by any other Vendors. Current Writ Cases / April 01 – 15/2021

718 CURRENT WRIT CASES 2021 (1) CWC (vi) The Commissioner of Police, Greater Chennai Police, Chennai-7, is directed to intensify the Police Patrolling in that locality till the normalcy arrived in that locality. (vii) The Inspector of Police, C1, Flower Bazaar Police Station, Chennai is directed to continue the investigation in respect of the FIR registered and proceed with the prosecution by following the procedures as contemplated. (viii) In the event of any such further continuance of Wholesale business by breaking open the official lock and seal in that locality, the Inspector of Police shall register Complaints and prosecute the offenders by following the procedures as contemplated under law.” 6. Even though the stand of the Koyambedu Wholesalers had been upheld by the learned Single Judge, Para 27(i) of the Order, dated 9.10.2018 read that “the relief as such sought for in all these Writ Petitions stand rejected”. That made it appear as if the relief sought for by the Koyambedu Wholesalers had also been rejected. Aggrieved by the same, Koyambedu Wholesalers filed W.A. No.2601 of 2018. Badrian Street Traders also filed Writ Appeals. W.A. Nos.2295 to 2308 of 2018, etc., were listed before the Hon’ble Division Bench comprising Their Lordships Hon’ble Mr. Justice K.K. Sasidharan and Hon’ble Mr. Justice R. Subramanian on 11.10.2018. It was taken up on 12.10.2018 along with the connected Appeals and after hearing the learned Counsel on either side, Orders were reserved. However, an Interim Order was issued to de-seal the premises. Thereafter, W.A. Nos.2393 to 2399 of 2018 filed by a few other Badrian Street Traders came up for admission before the Hon’ble Division Bench comprising Their Lordships Hon’ble Mr. Justice M. Sathyanarayanan and Hon’ble Mr. Justice P. Rajamanickam. By Order, dated 9.11.2018, the Order passed by the learned Single Judge was confirmed and the Writ Appeals were dismissed. The very same Hon’ble Division Bench also took up W.A. No.2601 of 2018 filed by Koyambedu Wholesalers and allowed the same vide Order, dated 29.11.2018 setting aside Paragraph No.27(i) of the Order of the learned Single Judge, dated 9.10.2018 insofar as they were concerned. W.P. No.10113 of 2016 filed by Koyambedu Wholesalers was allowed in terms of the directions issued by the learned Single Judge. When this was brought to the notice of the Hon’ble Division Bench comprising Their Lordships Hon’ble Mr. Justice K.K. Sasidharan and Hon’ble Mr. Justice R. Subramanian on 30.11.2018, Their Lordships expressed their disagreement and the aforementioned reference was made. 7. We heard Shri V. Karthick, the learned Senior Counsel and the other learned Counsel including Mr. S. Sadasharam, Mr. K. Shivakumar, Mr. N. Manoharan for the Appellants, the learned Additional Advocate General Mr. P.H. Aravind Pandian appearing for the CMDA/R2. Koyambedu Wholesalers wanted to get themselves impleaded in the reference. Since they have been involved in the contest right from inception and have been seeking strict enforcement of the Statute, they are definitely interested parties. We therefore thought it fit to hear Mr. V. Lakshminarayanan, their learned Counsel. Current Writ Cases / April 01 – 15/2021

Part 7 S. Sasikumar v. Government of Tamil Nadu 719 (FB) (G.R. Swaminathan, J.) 8. Mr. V. Lakshminarayanan, the learned Counsel appearing for the impleaded Respondent contended that this reference has to be rejected as bad in law. He drew our attention to Paragraph No.8 of the Order of Reference and contended that the learned Judges had made the reference on the ground that the scope of the provisions of the Tamil Nadu Act 24 of 1996, particularly, Section 21(8) of the Act was not brought to the notice of the Division Bench which disposed of the Appeals on 9.11.2018. According to him, a Bench of co-equal strength can make a reference only if there is disagreement on a question of law and not on the ground that certain contentions were not considered by the earlier Bench. 9. We are unable to sustain the aforesaid objection raised by the learned Counsel. A Judgment must be read as a whole. The learned Judges in their Order, dated 30.11.2018 have repeatedly voiced their disagreement with the approach and reasoning of the learned Single Judge as well as that of the other Division Bench. There was a clear divergence of opinion between them. While the earlier Bench sustained the Order of the learned Single Judge directing locking and sealing of the premises, the referring Judges took the view that Tamil Nadu Act 24 of 1996 did not authorise such a course of action. Whether the said Act enables the Authority to lock and seal is certainly a question of law. Since the two Benches were not on the same page, making a reference was the only course of action open to the later Bench. It was observed in Kamalammal and others v. Venkatalakshmi Ammal and others, AIR 1965 SC 1349, that not merely convention but Rules framed by several High Courts require that where a learned Single Judge or a Division Bench does not agree with a Full Bench decision he or they either make a Reference to the Full Bench or place the papers before the Chief Justice for such a Reference being made. In our view, the Hon’ble referring Judges have acted with utmost propriety in making the Order of Reference. We, therefore, reject the Preliminary Objection made by the learned Counsel appearing for the impleaded Respondent. 10. To answer the question referred to us, we have to necessarily undertake a careful study of the Statutory scheme. It was enacted in the year 1996 and came into force in Chennai City on 26.8.1997. It has IX Chapters and 67 Sections. The Act was brought to decongest parts of the city and to shift as many Commercial activities as possible outside the congested areas and to pave way for planned development and better public health. Based on the recommendation of the Local Authority, the Government could declare a given area within the local area as a Market area in respect of the commodities specified in the Schedule. After the Market area is declared and a Market Committee is established, the Wholesale business in the said specified commodities could take place only in the Market area and not outside the same. In order to ensure the regulation of activities in the market area, the statute contemplates establishment of Market Committee with defined powers and functions. The Wholesale Traders carrying on their business in the Market area will have to register with the Market Committee Current Writ Cases / April 01 – 15/2021

720 CURRENT WRIT CASES 2021 (1) CWC and the Wholesale trading in specified Market area is to be regulated by Licence. The Act also provides for offences and penalties. While the Act overrides other laws that are inconsistent with it, its provisions are to be in addition to and not in derogation of any other Act. The following provisions are relevant for the present discussion: “Section 2(5) “Local Authority” means— (a) the Chennai Metropolitan Development Authority established under Section 9-A of the Tamil Nadu Town and Country Planning Act, 1971; (b) the Municipal Corporations of Madurai, Coimbatore, Tiruchirappalli, Tirunelveli, Salem or any other Municipal Corporation constituted under any law for the time being in force; or (c) a Municipal Council constituted under the Tamil Nadu District Municipalities Act, 1920; Section 2(7) “Market” means any area declared under Section 4 to be market area. Section 2(14) “Wholesale trade” means sale or purchase of any specified commodity for purposes other than direct consumption or use by the purchaser, and shall include holding of stocks or warehousing of such specified commodity at any place in the market area (but does not include any sale or purchase by any primary Producer or Retail Trader, as the case may be, of such specified commodity); and any such seller, buyer, holder of stock or warehouse-keeper shall be deemed to be a “Wholesale trader”. Section 21. Wholesale trading in specified commodity in Market area to be regulated by Licensee.— 1. ... ... ... 2. ... ... ... 3. ... ... ... 4. ... ... ... 5. ... ... ... 6. ... ... ... 7. ... ... ... 8.(a) Notwithstanding anything contained in any law for the time being in force, no Local Authority, including the Chennai City Municipal Corporation constituted under the Chennai City Municipal Corporation Act, 1919 having jurisdiction over the Market area, shall, on and after the notified date, establish, authorise or continue, or allow to be established, authorised or continued, any place in the local area including the market area as a market or a place to carry on the Wholesale trade in respect of any specified commodity and any Permission or License already granted by such Local Authority shall stand cancelled on the notified date. Section 45. Appeal.— (1) Save as otherwise provided in this Act, an Appeal from every original Order passed under this Act or the Rules or by laws made thereunder shall be— (i) if the Order is made by the Chief Administrative Officer or any other Officer of the Market Committee; Current Writ Cases / April 01 – 15/2021

Part 7 S. Sasikumar v. Government of Tamil Nadu 721 (FB) (G.R. Swaminathan, J.) (ii) If the order is made by the Market Committee, to the Local Authority; and (iii) if the order is made by the Local Authority to the Government. (2) In the case of an Order passed in Appeal by the Market Committee or the Local Authority, a Second Appeal shall lie to the Government. (3) No Appeal or Second Appeal shall be entertained unless it is filed within such period as may be prescribed. (4) No Order prejudicial to any person shall be passed in any Appeal or Second Appeal unless the person concerned is given an opportunity of being heard. Section 46. Revision.— (1) The Government may, at anytime, call for and examine the record of any Market Committee or Local Authority in respect of any proceeding to satisfy themselves as to the regularity of such proceeding or the correctness, legality or propriety of any decision or Order passed therein, and if, in any case, it appears to the Government that any such Decision or Order should be modified, annulled, reversed or remitted to in consideration, then, the Government may pass Orders accordingly: Provided that before passing any Order under this sub-section, the Government— (a) shall, if such Order is likely to be prejudicial to any person, give such person a reasonable opportunity of making his representations; and (b) may consult such Authority or Officer as they deem fit. (2) The Government may stay the execution of any, such Decision or Order pending the exercise of their powers under sub-section (1) in respect thereof. Section 47. Penalties.— (1)Any person who,— (a) evades the payment of any fee or other amount due from him by or under this Act, or (b) when required by or under this Act to make any statement or furnish any information, makes any statement or furnishes any information, which he knows or has reasonable cause to believe to be false, or not true, in any material particular, or (c) prevents or obstructs inspection of Vehicles, boat, or other conveyance carrying or believed to be carrying any specified commodity or verification, search or seizure by any Officer or Servant of the Market Committee, or (d) contravenes any of the provisions of Section 21, or false to obtain a Licence for the Wholesale trade of any specified commodity as required by or under this Act or any of the terms and conditions of any such Licence, shall on conviction, be punishable with fine which shall not be less than five hundred rupees, but may extend to two thousand and five hundred rupees in the case of a continuing contravention, with a further fine, which may extend to five hundred rupees for every day during which the contravention is continued after conviction therefor. (2) Whoever contravenes any provision of this Act or any Rule or any by law shall, if no other penalty is provided for such contravention elsewhere in this Act, or in the Rules or by laws, on conviction be punishable with fine which may extend to one thousand and five hundred rupees. Current Writ Cases / April 01 – 15/2021

722 CURRENT WRIT CASES 2021 (1) CWC Section 63. Act to override other laws.— (1) The provisions of this Act shall have effect (only with regard to its decongestion objective) notwithstanding anything inconsistent therewith contained in the Tamil Nadu Agricultural Produce Marketing (Regulation) Act, 1987 or any other law for the time being in force. (2) Save as otherwise provided in sub-section (1), the provisions of this Act shall be in addition to, and not in derogation of, any other Act.” 11. Thus, if a Market area is earmarked and notified and declared under Section 4 of the Act, then Wholesale trading in the specified commodity shall be and can be carried on only in the Market area and not outside it. If any person continues to carry on the Wholesale trade in respect of any specified commodity outside the Market area, then the Local Authority is obliged to ensure that it is discontinued. This is the plain mandate of Section 21(8)(a) of the Tamil Nadu Act 24 of 1996. In fact, none of the Counsel raised the contention that the Appellants are entitled to carry on wholesale trading in flowers in Badrian Street. The debate was all about who is competent to take action and the legal process that should be followed in the manner of implementing the provisions of the Act. The learned Senior Counsel and other Counsel contended that the provisions of the Act do not authorise the Respondent-Authorities to resort to coercive measures such as “lock and seal”. They would also point out that the Act does not spell out who can decide the dispute if the trader takes the stand that he is carrying only Retail trade and not Wholesale trade. There are no clear or definite parameters. As a result, the Authority if conferred with the power to decide as to whether the Notice carries on Wholesale trade or not, it would be an unbridled one. Since the Statute also provides for prosecution, the authority after issuing Notice under Section 21(8)(a) of the Act must institute Complaint before the jurisdictional Magistrate. 12. There can be no doubt whatsoever that the Market Committee established under Section 5 of the Act can have jurisdiction and control only over the Market area and not on the Non-Market area. Now, the question is who would be the Competent Authority to take action against a person found to be engaged in Wholesale trade in specified commodities in a Non-Market area. In our view, Section 21(8)(a) of the Act gives the answer. The Local Authority has been mandated to ensure the enforcement of the Act in the Non- Market area. The expression “Local Authority” has been defined in Section 2(5) of the Act. As far as the Chennai City is concerned, it is CMDA. 13. The first question that has been referred for our determination is as to whether the Authority can lock and seal the premises and dispossess the persons concerned. To answer this question, we have to turn to the provisions of the Tamil Nadu Town and Country Planning Act, 1971. Section 2 (13) of the Tamil Nadu Act 35 of 1972 defines “development”. It includes the making of any material change in the use of any building or land. Section 56 of the Tamil Nadu Act 35 of 1972 confers Current Writ Cases / April 01 – 15/2021

Part 7 S. Sasikumar v. Government of Tamil Nadu 723 (FB) (G.R. Swaminathan, J.) power to require removal of unauthorised development and Section 57 confers power to stop unauthorised development. Section 57(4) states that the Planning Authority may also take action to discontinue the development by locking and sealing the premises. Of course, in Tamil Nadu Act 24 of 1996, there is no specific provision enabling the Local Authority to lock and seal the premises. But, by applying the Doctrine of Implied Powers, we can certainly hold that the Local Authority is possessed of the power to lock and seal the premises that are engaged in wholesale trading business in violation of the provisions of the law. 14. The Hon’ble Supreme Court in the Bidi, Bidi Leaves and Tobacco Merchants' Association v. State of Bombay, AIR 1962 SC 486, held as follows: “20. “One of the first principles of law with regard to the effect of an enabling act”, observes Craies, “is that if a Legislature enables something to be done, it gives power at the same time by necessary implication to do everything, which is indispensable for the purpose of carrying out the purposes in view [Craies on Statute Law, p. 239]”. The principle on which this Doctrine is based is contained in the Legal Maxim “Quando lex aliquid concedit concedere videtur et illud sine quo res ipsa ease non potest”. This maxim has been thus translated by Broom thus: “whoever grants a thing is deemed also to grant that without which the grant itself would be of no effect”. Dealing with this doctrine, Pollock, C.B., observed in Michael Fenton and James Fraser v. John Stephen Hampton, 1857-1859 (117) R.R. 32 at p. 41 : II Moo. PC. 347, “it becomes therefore all important to consider the true import of this maxim, and the extent to which it has been applied. After the fullest research which I have been able to bestow, I take the matter to stand thus: Whenever anything is authorised, and especially if, as matter of duty, required to be done by law, and it is found impossible to do that thing unless something else not authorised in express terms be also done, then that something will be supplied by necessary intendment”. This Doctrine can be invoked in cases “where an Act confers a jurisdiction it also confers by implication the power of doing all such acts, or employing such means, as are essentially necessary to its execution”. In other words, the Doctrine of Implied Powers can be legitimately invoked when it is found that a duty has been imposed or a power conferred on an Authority by a Statute and it is further found that the duty cannot be discharged or the power cannot be exercised at all unless some auxiliary or incidental power is assumed to exist. In such a case, in the absence of an implied power the statute itself would become impossible of compliance. The impossibility in question must be of a general nature so that the performance of duty or the exercise of power is rendered impossible in all cases. It really means that the Statutory provision would become a dead-letter and cannot be enforced unless a subsidiary power is implied.” When Section 21(8)(a) of the Tamil Nadu Act 24 of 1996 mandates the Local Authority to ensure that wholesale trading in specified commodities is not carried on in Non-Market areas, then it is deemed to confer all incidental powers, which would enable it to discharge the said duty. We, therefore, hold that the Local Authority is definitely possessed of the power to lock and Current Writ Cases / April 01 – 15/2021

724 CURRENT WRIT CASES 2021 (1) CWC seal the premises, where Traders are found violating the direction issued by the Authority under Section 21(8)(a) of the Act 24 of 1996. 15. The second question is whether the Local Authority has the power to determine as to whether a person is engaged in Wholesale trade or Retail trade. Adopting the very same reasoning and by invoking the Doctrine of Implied Powers, we hold that the Local Authority does have the power to determine as to whether an individual is carrying on business in Retail trade or Wholesale trade. When the Local Authority has been statutorily tasked to discontinue the carrying on of Wholesale trade in specified commodities outside the Market area, the function of determining who are indulging in the banned activities cannot be left to any other authority. In the Writ Petitions filed immediately after the promulgation of the Act, the Hon’ble Division Bench in the General Merchant Association, rep. by Secretary and Treasurer and others v. Corporation of Chennai, rep. by its Commissioner, Chennai, 2000 (3) CTC 565 (DB), held as follows: “60. We hold that it is incumbent on the part of each of the Wholesale Trader to move to the Koyambedu Wholesale Market and they cannot insist that they would continue to carry on the Wholesale trade outside the Notified Market with respect to the specified commodities. The Wholesale trade having already been regulated, this Court holds such a regulatory measure being in the interest of public as well as trade, the Wholesale Traders have to move to the Notified Market and they cannot continue their Wholesale trade in the Corporation Fruit Market or George Town area and their continuance is per se punishable under the Tamil Nadu Act 24 of 1996. In respect of the Retail traders we hold that it is open to the Retail traders to select a place of their choice and continue their trade but it is always open to the Respondent and other appropriate authorities to take action against any trader if they come to the conclusion that the particular Shop/stall or establishment being carried on outside the notified market is a wholesale and it is left to the Authorities to take appropriate action against those Wholesale Traders who contravene the provisions of the Tamil Nadu Act 24 of 1996........” The second part of the second question is as to whether the factual determination has to be preceded by a Criminal prosecution under Section 47 of the Act. The object of any prosecution is to penalize the offender for having contravened the provisions of the Act. On the other hand, ‘Lock and seal’ is a coercive measure for preventing the continued commission of the offence. The statute contemplates discontinuance of the offending activity. If we were to hold that Criminal prosecution must be the first step, that would certainly defeat the very purpose of the Act. Though the Statute has not specifically named any authority to decide the factual issue, by invoking the Doctrine of Implied Powers, we have held that the Local Authority has the jurisdiction to determine the question as to whether the noticee is engaged in Wholesale trade or not. Once the factual determination is made, the noticee has to be directed to discontinue the banned activity. If the Noticee disregards the direction, the Local Authority has to take appropriate action to effect discontinuance of the activity. The Authority may also prosecute the Current Writ Cases / April 01 – 15/2021

Part 7 S. Sasikumar v. Government of Tamil Nadu 725 (FB) (G.R. Swaminathan, J.) offender. That is a choice open to the Authority. Prosecution will follow the factual determination and not precede it. 16. As held by this Court consistently in the series of litigations instituted by the parties, the authority has to observe the Principles of Natural Justice. The orders will have to be well reasoned. Of course, the nature of proceedings would be summary in character. The orders must indicate that there was application of mind. The finding that the trader is a Wholesale Trader and not a Retail Trader should be founded on proper materials. 17. We are of the view that the reference was triggered by some of the observations made in the earlier rounds of litigation. It was observed in at least two of the Orders that the persons carrying on wholesale trading in flowers in Badrian Street will have to be evicted. In fact, G.O.(Ms) No.10, dated 6.1.2012 also talks about eviction of Badrian Street Traders by taking the assistance of the Corporation officials and the jurisdictional Police. We have no doubt whatsoever that nowhere the Statute contemplates eviction. The only mandate of law is that Wholesale trade in specified commodities should be carried on within the Market area and not in Non-Market areas. If notwithstanding the direction of Local Authority it is being carried on, then the Local Authority can take always recourse to coercive measures to enforce its direction. But, if the affected individual is ready to mend his ways and agrees to confine himself to retail trading or if he proposes to shift his trade to non-specified commodities, then the Local Authority cannot continue to keep the premises under lock and seal. It is possible that in some cases, the trader is only a tenant. Following the sealing of the premises, he might abandon the trade altogether. If the premises remains under lock & seal indefinitely, it is only the Landlord, who would suffer irreparable hardship. No Statutory power can be construed in absolute terms. The Doctrine of Proportionality will have to be read into the Statutory scheme. This Doctrine is now an intrinsic part of Indian Jurisprudence as held by the Hon’ble Supreme Court in Anuradha Bhasin v. Union of India, 2020 (3) SCC 637. Whether the measure taken by the Local Authority satisfies the parameters set out above is to be decided in the facts and circumstances of each case. 18. Accordingly, we answer the reference in the following terms: (i) The provisions of the Tamil Nadu Act 24 of 1996 authorise the Local Authority as defined in Section 2(5) of the Act 24 of 1996 and not the Market Committee to lock and seal the premises for contravention of the provisions of the Act. (ii) The Local Authority is empowered to factually determine whether the persons concerned are carrying on Wholesale trade in the Non-Market areas. It is not necessary that this factual determination should be preceded by Criminal prosecution as contemplated under Section 47 of the Act.  Current Writ Cases / April 01 – 15/2021

726 CURRENT WRIT CASES 2021 (1) CWC 2021 (1) CWC 726 IN THE HIGH COURT OF MADRAS Abdul Quddhose, J. W.P. No.4527 of 2019 & W.M.P. Nos.24512, 5105, 5109 & 5112 of 2019 18.1.2021 Dhanalakshmi Konduru .....Petitioner Vs. Indian Oil Corporation Ltd., rep. by the Deputy General Manager (LPG- Sales), Indane Area Office, Marketing Division, 500, Anna Salai, Teynampet, Chennai-600 016 .....Respondent Unified Guidelines for Selection of LPG Distributors, Clause 8(m)(iv) — General Clauses Act, 1897 (10 of 1897), Section 11 — LPG Distributorship — Distance — Measurement of — Request for grant of LPG Distributorship rejected on ground that property was not within 15 kms from Municipality as prescribed in Clause 8(m)(iv) — Contention that distance should be measured as ‘the crow flies’ — Held, distance criteria of 15 kms introduced to subserve Public interest and ensure that LPG Cylinders are easily available to public at large — Different intention as warranted in Section 11 made out — Distance to be measured as ‘Road distance’ as same if measured as crow flies, to not serve purpose of Clause 8(m)(iv) — Writ Petition dismissed. (Paras 21, 23, 25 & 27) CASES REFERRED Commissioner of Income-tax, Chennai v. Sakunthala Rangarajan, 2016 SCC Online Mad 19271 ........................................................................................................................... 13, 26 P.G. Murugesan v. Assistant Commissioner (Excise), 1998 (2) CTC 661 .......................... 9, 28 S. Elambharathi, Advocate for Petitioner. M.S. Krishnan, Senior Counsel for Mohammed Fayaz Ali, Advocate for Respondent. W.P. DISMISSED — NO COSTS — M.Ps. CLOSED Prayer : Writ Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorarified Mandamus to call for the records pertaining to the issuance of the proceeding in Ref. No.IOC04112075525042018, dated 9.2.2019 on the file of the Respondent and quash the same and further may direct the Respondent to award the LPG Distributorship at Chennai (Chrompet) in favour of the Petitioner. Judgment Reserved on 11.1.2021 and Pronounced on 18.1.2021 JUDGMENT 1. In this Writ Petition, the issue revolves upon the interpretation of Clause 8(m)(iv) of the Unified Guidelines for Selection of LPG Distributors. 2. It is the case of the Petitioner that she has satisfied the distance criteria as per Clause 8(m)(iv) of the Unified Guidelines for Selection of LPG Current Writ Cases / April 01 – 15/2021

Part 7 Dhanalakshmi Konduru v. Indian Oil Corporation Ltd. 727 (Abdul Quddhose, J.) Distributors as according to her, the godown for storage of LPG Cylinders offered by her is located within 15 Kms. from outer limits of Pallavaram Municipality if the distance is measured “As the crow flies”. But, according to the Respondent Oil Corporation, the Petitioner has not satisfied the distance criteria as stipulated under Clause 8(m)(iv) of the Unified Guidelines for Selection of LPG Distributors since the godown for storage of LPG Cylinders offered by the Petitioner is beyond 15 Kms. as the said godown is located at a road distance of more than 15 Kms. from the outer limits of Pallavaram Municipality where the Petitioner’s proposed showroom is located. 3. The Petitioner has challenged the Letter, dated 9.2.2019 issued by the Respondent rejecting the property offered by the Petitioner at Survey No.86/1, Arungal Village, Chengalpattu Taluk for the godown to store LPG Cylinders on the ground that the said godown is situated at a distance of 16.3 Kms. by road from the end point of Pallavaram Municipality where the Petitioner’s offered showroom having address at 453/2A, New Survey No.453/3A1A2, Plot No.147, Ground Floor, 2nd Street Santhi Nagar EXT, Chrompet, Chennai-600044 is located. The Respondent in the impugned Letter, dated 9.2.2019 has also requested the Petitioner to offer any alternate property for the godown and they have informed the Petitioner that in case the Petitioner fails to offer an alternate property, her candidature will be rejected and the sum of `50,000 deposited by her with the Respondent Corporation will stand forfeited. 4. Aggrieved by the impugned Letter, dated 9.2.2019, the Petitioner has preferred this Writ Petition. 5. Heard Mr. S. Elambharathi, learned Counsel for the Petitioner and Mr. M.S. Krishnan, learned Senior Counsel for Mr. Mohammed Fayaz Ali, the learned Counsel for the Respondent. 6. The learned Counsel for the Petitioner drew the attention of this Court to Clause 8(m)(iv) of the Unified Guidelines for Selection of LPG Distributors and would submit that the Petitioner has satisfied the distance criteria under the said Clause. According to him, the distance will have to be measured only “As the crow flies” and not as per the “Road distance”. 7. The learned Counsel for the Petitioner drew the attention of this Court to the Report, dated 25.2.2020 submitted by the Tahsildar, Vandalur, pursuant to the directions issued by this Court and would submit that the distance of the godown offered by the Petitioner as per the said report of the Tahsildar is 12.70 Kms. of the distance “As the crow flies”. Hence, according to him, the Petitioner having satisfied the distance criteria, the Respondent ought not to have rejected the property offered by the Petitioner for the godown. Current Writ Cases / April 01 – 15/2021

728 CURRENT WRIT CASES 2021 (1) CWC 8. The learned Counsel for the Petitioner then drew the attention of this Court to Section 11 of the General Clauses Act, 1897 and would submit that any distance will have to be measured in a straight line on a horizontal plane i.e. “As the crow flies”. Hence, according to him, rejection of the Petitioner’s property for the godown by the Respondent is arbitrary and illegal. 9. The learned Counsel for the Petitioner also drew the attention of this Court to a Judgment of a learned Single Judge of this Court in the case of P.G. Murugesan v. Assistant Commissioner (Excise), Coimbatore, 1998 (2) CTC 661 and would submit that since the term “distance” has not been defined under the Unified Guidelines for Selection of LPG Distributors, Section 11 of the General Clauses Act, 1897 which defines distance will have to be applied. Hence, according to him, the distance has to be calculated only “As the crow flies”. 10. Per contra, Mr. M.S. Krishnan, learned Senior Counsel for the Respondent would submit that the road distance is the criteria for measuring the distance of the location of the godown offered by the Petitioner from the outer limits of the Municipality where the showroom of the Petitioner is proposed to be located. 11. The learned Senior Counsel for the Respondent would submit that the godown offered by the Petitioner at Survey No.86/1, Arungal Village, Chengalpattu Taluk is situated at a distance of 16.3 Kms. by road from the end point of Pallavaram Municipality where the showroom is proposed to be located. 12. The learned Senior Counsel for the Respondent also drew the attention of this Court to the Report, dated 12.12.2019 submitted by the Tahsildar, Vandalur Taluk, Chengalpattu District, pursuant to the directions issued by this Court and would submit that as per the said report, the proposed godown of the Petitioner is located at 15.5 Kms. from the outer limits of Pallavaram Municipality where the proposed showroom of the Petitioner is located and hence, according to him, the distance criteria has not been satisfied by the Petitioner. Hence, according to him, the impugned Letter rejecting the Petitioner’s property for the godown has been rightly issued by the Respondent. 13. The learned Senior Counsel for the Respondent also drew the attention of this Court to a Division Bench Judgment of the Madras High Court in the case of the Commissioner of Income-tax, Chennai v. Sakunthala Rangarajan, 2016 SCC Online Mad 19271, and would submit that there is no straight jacket formula for calculation of distance and according to him, as per the aforesaid decision of the Division Bench, the methodology of measurement of distance depends upon the context and the purposes to be achieved. Current Writ Cases / April 01 – 15/2021

Part 7 Dhanalakshmi Konduru v. Indian Oil Corporation Ltd. 729 (Abdul Quddhose, J.) 14. The learned Senior Counsel for the Respondent while referring to Section 11 of the General Clauses Act, 1897 would submit that as per the said Section there is no hard and fast rule that the methodology for measuring distance will have to be “As the crow flies” i.e. in a straight line on a horizontal plane. According to him, the distance rule is incorporated in the Guidelines only in public interest and only to help the customers to get LPG Cylinders quickly. Therefore, according to him, the distance of 15 Kms. mentioned in Clause 8(m)(iv) of the Unified Guidelines for Selection of LPG Distributors is only the “Road distance” and not “As the crow flies”. Discussion: 15. Clause 8(m)(iv) of the Unified Guidelines for Selection of LPG Distributors reads as follows: “iv. Selected Candidate for Sheheri Vitrak & Rurban Vitrak locations failing under ‘X’ & ‘Y’ Category Metro Cities/Cities/State will be allowed to construct the Godown in and within 15 kms outside the Municipal Limit of the Town/City of the advertised location.” 16. The advertised location for which the Petitioner had applied is Chennai (Chrompet, Kancheepuram District). As per Clause 8(m)(iv) of the Unified Guidelines for Selection of LPG Distributors, the godown offered by the Petitioner should be 15 kms. from the outer limits of Pallavarm Municipality as Chrompet falls under Pallavaram Municipality limit. The petitioner has offered her land situated at Survey No.86/1, at Arungal Village, Chengalpattu Taluk for the purpose of godown to store LPG Cylinders. The showroom offered by the Petitioner is located at Santhi Nagar EXT, Chrompet, Chennai and according to the Respondent, the distance between the showroom and the godown is 22 kms. 17. According to the Respondent, the Field Verification Credentials (FVC) of the Petitioner was conducted by the Respondent Committee and it was found that the Petitioner’s godown is located at a distance of 16.3 kms from the Municipal limits of Pallavaram which is beyond the permissible limit as per the aforementioned Guidelines. 18. A direction was also issued by this Court to the Tahsildar, Vandalur Taluk calling upon him to file a report as to the distance of the Petitioner’s godown located at Arungal Village, Chengalpattu Taluk from the outer limits of Pallavaram Municipality both by adopting the methodology of “By Road” and “As the crow flies”. 19. A report, dated 12.12.2019 was submitted by the Tahsildar, Vandalur Taluk, Chengalpattu District before this Court stating that the distance by road to the Petitioner’s godown situated at Survey No.86/1, Arungal Village, Chengalpattu Taluk from the outer limits of Pallavaram Municipality is 15.5 Kms. Current Writ Cases / April 01 – 15/2021

730 CURRENT WRIT CASES 2021 (1) CWC 20. A report, dated 25.2.2020 was also submitted by the Tahsildar, Vandalur before this Court stating that the distance to the Petitioner’s godown “As the crow flies” from the outer limits of Pallavaram Municipality is 12.70 Kms. 21. The Respondent is a Public Sector Oil Corporation and caters to Public interest. The distance criteria of 15 Kms. from the outer limits of the Municipality where the showroom is located has been introduced only in Public interest for easy accessibility of LPG Cylinders by the public at large. If the distance has to be measured by adopting the methodology “As the crow flies”, the very object of the incorporation of the distance criteria in Clause 8(m)(iv) of the Unified Guidelines for Selection of LPG Distributors referred to supra will get defeated as easy accessibility to get Cylinders by the general public will get affected in case of difficult terrains where there are no short cut roads between the showroom and the godown. 22. The following illustration can be given to explain as to why the distance criteria will have to be measured by “Road distance” and not by “As the crow flies”. Take the case of a Candidate offering a godown in a hill station which is within 15 kms. radius “As the crow flies” from the outer limits of the Municipality where the showroom is located in the foothills. In those cases, the distance “By Road” will be many times more than the distance “As the crow flies”. A customer will find it difficult to get LPG Cylinders if the distance is measured by using the methodology “As the crow flies”. 23. Therefore, this Court is of the considered view that the distance criteria as per Clause 8(m)(iv) of the Unified Guidelines for Selection of LPG Distributors will have to be measured as per the “Road distance” and not “As the crow flies”. 24. Section 11 of the General Clauses Act, 1897 reads as follows: “11. Measurement of distances.— In the measurement of any distance, for the purpose of any [Central Act] or Regulation made after the commencement of this Act, that distance shall, unless a different intention appears, be measured in a straight line on a horizontal plane.” 25. Section 11 of the said Act has made it clear that “if a different intention appears,” there is no necessity to measure the distance in a straight line on a horizontal plane i.e. “As the crow flies”. Clause 8(m)(iv) of the Unified Guidelines for Selection of LPG Distributors fixing the distance criteria was introduced only in public interest to help the general public in easy accessibility of LPG Cylinders. If the distance is measured by using the methodology “As the crow flies”, Public interest will be affected as their accessibility to LPG Cylinders will be affected as the distance measured “As the crow flies” is of no consequence to the customers/service staff as they travel only “By Road”. Therefore, it is very clear that the intention of the Current Writ Cases / April 01 – 15/2021

Part 7 Dhanalakshmi Konduru v. Indian Oil Corporation Ltd. 731 (Abdul Quddhose, J.) Respondent to introduce the distance criteria is only to sub-serve Public interest. The exception “unless a different intention appears” found in Section 11 of the General Clauses Act, 1897 squarely applies to the facts of the instant case. Hence, the distance will have to be measured only “By Road”. 26. A Division Bench Judgment of this Court in the case of the Commissioner of Income-tax, Chennai v. Sakunthala Rangarajan, 2016 SCC Online Mad 19271, relied upon by the learned Senior Counsel for the Respondent also supports the case of the Respondent. Paragraph Nos.28 & 29 of the said Judgment are extracted hereunder: “28. For illustration, take the case of a person, who has a shop in Fort Road, Parrys, on the eastern side. If he has to go to a Shop or Office or any place located in NSC Bose Road, on the Western Side, he has to go round the High Court, and reach the place of destination. He has no right to use the High Court premises, which is not a public pathway/road and therefore, the distance has to be measured, only by approach road and not through the place, which is restricted to public. Therefore, if only a person has access, through an approach road, permitted by the authorities or used as a common pathway/road, the distance can be measured. Between an Agricultural land and the nearest municipality, if there is a mountain, lake or private lands, Government properties and where public has no access and if there is an alternate road/route, permitted by the authorities for use of public, then the distance has to be measured only through the access road and not in a straight line on horizontal plane. 29. While carving out Section 11 of the General Clauses Act, 1897, legislature has also made it clear that for the purpose of any Act, that distance, shall unless a different, intention appears, be measured in a straight line on a horizontal plane. The proper interpretation to Section 11 of the General Clauses Act, 1897, depends upon the purposes for which, an Act is enacted. In the case of an explosive Unit or stone quarry operations, aerial distance/crow’s flight can be taken. In such circumstances, the distance falls within the ambit of prohibited distance. Thus in Section 11 of the General Clauses Act, 1897, the legislature has also foreseen that measurement of distance, should be in the context and the purposes to be achieved, in any enactment and it is not a straight jacket formula, that in all cases and under all circumstances and notwithstanding the purposes, for which, an Act is enacted, measurement of distance should be done only in straight line on horizontal plane.” 27. As per the aforesaid decision of the Division Bench of this Court, it is clear that legislature has foreseen that measurement of distance should be on the context and purposes to be achieved and that is the reason under Section 11 of the General Clauses Act, 1897, the legislature has thought it fit to bring about an exception by introducing the term “unless a different intention appears” when the distance cannot be measured in a straight line on a horizontal plane i.e. “As the crow flies”. There cannot be any hard and fast rule as regards the methodology for measurement of distance as submitted by the learned Counsel for the Petitioner as the methodology to be adopted Current Writ Cases / April 01 – 15/2021

732 CURRENT WRIT CASES 2021 (1) CWC for measurement of distance depends upon the context and the objects to be achieved. The interpretation of Clause 8(m)(iv) of the Unified Guidelines for Selection of LPG Distributors will have to be interpreted is a way that benefits the general public at large as the said Clause has been introduced only in their interest for their easy accessibility of LPG Cylinders. If the distance is measured “As the crow flies”, their interest will be jeopardised. Hence, this Court is of the considered view that the Respondent has rightly rejected the Petitioner’s offer of the land situated at Arungal Village, Chengalpattu Taluk for the godown since it is located at a distance beyond 15 kms. (Road distance) from the outer limits of Pallavaram Municipality where the showroom is proposed to be located. 28. The Judgment relied upon by the learned Counsel for the Petitioner in the case of P.G. Murugesan v. Assistant Commissioner (Excise), Coimbatore, 1998 (2) CTC 661 does not have any bearing to the facts of the present case as that case was dealing with restrictions imposed with regard to the location of a liquor shop under Rule 18 of the Tamil Nadu Liquor (Retail & Vending) Rules, 1989. In the case on hand, location of LPG godowns are involved. Further in that case, the term “distance” was defined under the Rules itself. In the case on hand, the term “distance” has not been defined and hence, this Court is of the considered view that in Public interest, which is the object of introducing Clause 8(m)(iv) of the Unified Guidelines for Selection of LPG Distributors distance “By Road” alone should be taken into account and not the distance “As the crow flies”. 29. For the foregoing reasons, this Court is of the considered view that there is no merit in this Writ Petition and accordingly, this Writ Petition is dismissed. However, if the Petitioner is able to provide an alternate property for the godown satisfying the distance criteria as per Clause 8(m)(iv) of the Unified Guidelines for Selection of LPG Distributors by taking into consideration the road distance as well as satisfying other requirements of the Respondent within a period of 15 days from the date of receipt of a copy of this order, the Respondent shall consider the said property and if found feasible shall consider awarding contract to the Petitioner for Distributorship within a period of four weeks thereafter. No Costs. Consequently, connected Miscellaneous Petitions are closed.  Current Writ Cases / April 01 – 15/2021

Part 7 D. Selvan Christopher v. State of Tamil Nadu 733 (DB) (Senthilkumar Ramamoorthy, J.) 2021 (1) CWC 733 IN THE HIGH COURT OF MADRAS A.P. Sahi, C.J. & Senthilkumar Ramamoorthy, J. W.P. Nos.34445 of 2014 & 19453 of 2015 29.10.2020 D. Selvan Christopher, Senior Personal Clerk, Public Department, Secretariat, Fort St. George, Chennai-600 009 and 21 others .....Petitioners Vs. State of Tamil Nadu, rep. by its Secretary to Government, Personnel and Administrative Reforms Department, Secretariat, Fort St. George, Chennai-600 009 .....Respondent Constitution of India, Article 309 — Special Rules for Tamil Nadu Secretariat Service, Rules 8 & 14 — Assistant Section Officer — Promotion — Feeder Category — Qualifications — Prescription of — Validity of — Amendment to Rules 8 & 14 — Amendment carried in pursuance of power conferred under Proviso to Article 309 of Constitution — Amendment, thus, a valid exercise of Delegated legislative power — Prescription of Senior Personal Clark as Feeder category for promotion to post of ASO justified — Experience qualification of five years in addition to Bachelor’s Degree, valid considering nature of duties performed by ASO — Moreover, prerogative of Government to decide on necessary Educational qualification and experience qualification for a Promotional post — Court cannot sit in Appeal over prescription qualifications — Amendments to Rules 8 & 14 not illegal, arbitrary or unconstitutional — Writ Petition dismissed. (Paras 15 & 16) CASES REFERRED B. Thirumal v. Ananda Sivakumar, 2014 (2) LLN 7 (SC).......................................................... 8 Bharat Sanchar Nigam Ltd. v. R. Santhakumari Velusamy, 2012 (1) LLN 358 (SC)................ 8 P.U. Joshi v. Accountant General, 2003 (2) SCC 632.............................................................. 14 G. Sankaran, Advocate for Petitioners. Narmatha Sampath, Additional Advocate General assisted by V. Jayaprakash Narayanan, State Government Pleader for Respondent. W.Ps. DISMISSED — M.Ps. CLOSED — NO COSTS Prayer : W.P. No.34445 of 2014 : Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Declaration to declare Rule 8 of the Special Rules for the Tamil Nadu Secretariat Service with reference to non inclusion of the post of Personal Clerk in the Feeder category for Promotion to the post of Assistant Section Officer (ASO) along with Senior Personal Clerk and Rule 14 of the Special Rules for Tamil Nadu Secretariat Service in so far as prescribing 5 years service qualification for promotion to the post of Assistant Section Officer (ASO) in respect of Personal Clerk/Senior Personal Clerk as illegal, arbitrary and unconstitutional, discriminatory. W.P. No.19453 of 2015 : Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Declaration to declare Rule 8 of the Special Rules for the Tamil Nadu Secretariat Service with Current Writ Cases / April 01 – 15/2021

734 CURRENT WRIT CASES 2021 (1) CWC reference to non-inclusion of the post of Personal Clerk in the Feeder category for Promotion to the post of Assistant Section Officer (ASO) along with Senior Personal Clerk and Rule 14 of the Special Rules for the Tamil Nadu Secretariat Service (category 1C) in so far as prescribing 5 years service qualification for Promotion to the post of Assistant Section Officer (ASO) in respect of Personal Clerk/Senior Personal Clerk as illegal, arbitrary and unconstitutional, discriminatory. Judgment Reserved on 5.10.2020 and Pronounced on 29.10.2020 JUDGMENT Senthilkumar Ramamoorthy, J. 1. In both these Writ Petitions, Rules 8 & 14 of the Special Rules for the Tamil Nadu Secretariat Service are challenged. Rule 8 relates to the pattern of appointment to the post of Assistant Section Officer (ASO), including the feeder categories for appointment by Promotion, and Rule 14 relates to qualifications, inter alia, for the post of ASO, including the experience qualification of five years in the post of Senior Personal Clerk and Personal Clerk for Promotion to the post of ASO. In W.P. No.34445 of 2014, Petitioners 1 to 21 are persons who had already been promoted as Senior Personal Clerks as on the date of filing of the Writ Petition in the year 2014. As regards Petitioners 22 & 23, they were Personal Clerks at the time of filing of the Writ Petition but were promoted as Senior Personal Clerks in the year 2017, while the Writ Petition was pending. As regards W.P. No.19453 of 2015, both the Petitioners were Senior Personal Clerks at the time of filing of the Writ Petition. 2. The Special Rules for the Tamil Nadu Secretariat Service, as applicable per G.O.(Ms.) No.65, Personnel and Administrative Reforms (U) Department, dated 4.12.2008 [G.O.(Ms.) No.65], amended the then existing seven point roster and instead stipulated a eight point roster for appointment to the post of ASO, by providing a separate rotation for Promotion from the category of Non-Graduate Assistant. In terms thereof, a common rotation was provided for appointment by Promotion from the posts of Personal Clerk, Typist, and by transfer from the category of Personal Assistant. By G.O.(Ms.) No.186, Personnel and Administrative Reforms (U) Department, dated 27.7.1998, a nine point roster replaced the eight point roster and a common rotation was provided for Promotion from the post of Personal Clerk and by transfer from the post of Personal Assistant. Meanwhile, W.P. No.21949 of 2006 was filed and, by Order, dated 20.11.2006, G.O.(Ms.) No.65 was set aside on the basis that it was not in consonance with the order dated 26.8.1994 of the Tamil Nadu Administrative Tribunal in O.A. No.782 of 1993, and the Court directed that the matter be examined afresh by reckoning the cadre strength in each feeder category to arrive at a scientific ratio having regard to the nature of duties performed and the cadre strength. 3. Pursuant thereto, a Sub-Committee comprising two under-secretaries to the Government, a Research Officer of the O & M cell and a Section Officer of the Personnel and Administrative Reforms Department was constituted under G.O.(D) No.130, Personnel and Administrative Reforms (U) Department, dated 10.7.2007 to examine the matter afresh. Thereafter, on the basis of the Sub-Committee’s Report, the order of the High Court and Current Writ Cases / April 01 – 15/2021

Part 7 D. Selvan Christopher v. State of Tamil Nadu 735 (DB) (Senthilkumar Ramamoorthy, J.) the recommendations of the TNPSC, executive instructions were issued in G.O.(Ms.) No.237, Personnel and Administrative Reforms (U) Department, dated 26.10.2007 [G.O.(Ms.) No.237] specifying the feeder categories of Assistant, Senior Personal Clerk and Senior Typist, respectively, for promotion to the post of ASO and fixing a 4:1:1 ratio as between them. G.O. (Ms.) No.237 provided for a eight point roster, wherein the separate rotation for Promotion from the category of Non-Graduate Assistant was eliminated, and one rotation by Promotion from the post of Senior Personal Clerk and another from the post of Senior Typist were included. Pursuant thereto, the amendments to the Special Rules of the Tamil Nadu Secretariat Service were effected under G.O.(Ms.) No.220, Personnel and Administrative Reforms (U) Department, dated 4.12.2008[G.O.(Ms.) No.220]. Rule 5(1)(a), as amended, provided for appointment of ASOs by Promotion from the feeder categories of Assistant, Senior Personal Clerk and Senior Typist in a 4:1:1 ratio. Rule 8, as amended, gave effect to the eight point roster with one rotation by Promotion from the post of Senior Personal Clerk (the sixth rotation) and another from the post of Senior Typist (the seventh rotation). 4. Moreover, as per G.O.(Ms.) No.218, dated 12.8.1994, the Educational qualification for the post of Personal Clerk was Minimum General Educational Qualification (MGEQ), i.e. 10th standard. A five year service qualification was prescribed for the feeder category of Personal Clerk for appointment by promotion as ASO. Rule 14, as applicable to Personal Clerks was subsequently amended by specifying the Higher Educational qualification of a bachelor’s Degree. However, the five year service qualification was retained. 5. According to the Petitioners, the post of Personal Clerk (168) and Senior Personal Clerk (88) formed a combined cadre strength of about 256 and constituted a single homogeneous class, which served as a feeder category for Promotion to the post of ASO. However, the Special Rules were amended by G.O.(Ms.) No.220. By virtue of the said amendment, the post of Personal Clerk was excluded from the feeder category for Promotion to the post of ASO, which has a cadre strength of about 1282 in the Secretariat. As a consequence, the promotional opportunity to the post of ASO is limited to the 88 Senior Personal Clerks; and Personal Clerks, who are on a higher pay scale than Assistants, lose this opportunity. In addition, originally the Educational qualification for the post of Personal Clerk and Senior Personal Clerk was MGEQ. On account of the fact that MGEQ was the Educational qualification for the post, five years service experience was prescribed as the experience qualification for Promotion to the post of ASO. Subsequently, by G.O.Ms. No.255, dated 12.7.1993 and the consequential amendment notified in G.O.Ms. No.218, dated 12.8.1994, the Educational qualification for the post of Personal Clerk was enhanced as a bachelor’s Degree instead of MGEQ. In spite of the enhancement of the Educational qualification and the prescription of the technical qualification of type writing and shorthand (Higher Grade) both in English and Tamil, the five years experience qualification for Promotion to the post of ASO was not deleted. Therefore, Current Writ Cases / April 01 – 15/2021

736 CURRENT WRIT CASES 2021 (1) CWC the Petitioners state that they are aggrieved by Rules 8 & 14 of the Special Rules, which prescribe the feeder category and the experience qualification, respectively. The present Writ Petitions have been filed in these facts and circumstances to challenge the aforesaid Special Rules. 6. We heard Mr. G. Sankaran, the learned Counsel for the Petitioners in both the Writ Petitions, and Mrs. Narmadha Sampath, the learned Additional Advocate General for the Respondent in both the Writ Petitions. 7. Mr. G. Sankaran commenced his submissions by pointing out that the post of Personal Clerk is not a technical post. In support of this contention, he referred to G.O.(Ms.) No.603, P & AR(M) Department, dated 12.6.1985, which categorizes the Tamil Nadu Secretariat Service as a non-technical service consisting of the posts of Assistant Section Officer, Typist, Personal Clerk and Assistant. He further contended that the post of Personal Clerk is included therein but not the post of Senior Personal Clerk. Subsequently, by GO.(Ms) No.357, P & AR (Per.II) Department dated 2.11.1992, the Government provided for upgrading of Typists and Personal Clerks, who were in the selection grade as on 27.6.1989, to the new post of Senior Typist and Senior Personal Clerk. For this purpose, 250 posts of Senior Typists and Senior Personal Clerks were directed to be created in the Departments of the Secretariat for providing a Regular Promotion channel for the post of Typist and Personal Clerks in the Secretariat, irrespective of whether they opt for promotion to the post of ASO or not. His next contention is that it is necessary to fix the ratio among the feeder categories based on the cadre strength of each feeder category. In support of this contention, he relied upon the Judgment of this Court in W.P. No.21949 of 2006, wherein, by Order, dated 20.11.2006, this Court held that the ratio should be fixed on the basis of cadre strength in a scientific manner to ensure that all feeder categories get their due share in the matter of Promotion. 8. Mr. Sankaran next contended that the cadre strength of Personal Clerks and Senior Personal Clerks is 168 + 88 which aggregates to 256 and that the ratio should be fixed on the basis of the combined cadre strength. Unfortunately, in G.O.(Ms.) No.237, an erroneous and reduced cadre strength of 121 (Personal Clerks) + 96 (Senior Personal Clerks) = 217 was taken into consideration. Besides, as a result of the amendment made by the impugned Rules, the post of Personal Clerk has been deleted from the feeder categories as regards Promotion to the post of ASO. In this regard, he invited the attention of the Court to G.O.(Ms) No.220. In particular, he pointed out as to how Rule 8 of the pre-existing Special Rules for the Tamil Nadu Secretariat service was substituted by the amended rule in terms of which ASOs in the Departments of the Secretariat would be appointed from the three feeder categories mentioned therein on a 4:1:1 ratio. Before the amendment, Personal Clerks were a feeder category along with those, who were transferred from the post of Personal Assistant (seventh rotation) but by this amendment, he pointed out that the feeder category was restricted to Senior Personal Clerks. In response to a question as to the locus standi of the Petitioners, who are Senior Personal Clerks, to challenge the deletion of Personal Clerks as a Current Writ Cases / April 01 – 15/2021

Part 7 D. Selvan Christopher v. State of Tamil Nadu 737 (DB) (Senthilkumar Ramamoorthy, J.) feeder category, Mr. Sankaran pointed out that Petitioners 22 & 23 in W.P. No.34445 of 2014 were Personal Clerks as of the date of filing of the Writ Petition. Therefore, they have the locus standi. In addition, he contended that the cadre strength of the single homogeneous category of Personal Clerks + Senior Personal Clerks has reduced drastically by deleting Personal Clerks from the feeder category. In order to substantiate the contention that Personal Clerks and Senior Personal Clerks constitute a single homogeneous class, he relied upon the Judgments of the Hon’ble Supreme Court in Bharat Sanchar Nigam Ltd. v. R. Santhakumari Velusamy and others, 2012 (1) LLN 358 (SC) : 2011 (9) SCC 510 and B. Thirumal v. Ananda Sivakumar and others, 2014 (2) LLN 7 (SC) : 2014 (16) SCC 593. At Paragraphs 24 to 26 of B. Thirumal, the Supreme Court held that upgradation is different from promotion. By relying on the aforesaid Judgments, he reiterated that Personal Clerks were upgraded to the post of Senior Personal Clerks and that, therefore, these are not two distinct posts but constitute one homogeneous class. 9. The next contention of Mr. Sankaran is that Rule 14 was amended and a bachelor’s Degree was introduced as the Educational qualification for appointment to the post of Personal Clerk instead of MGEQ. Notwithstanding such amendment, the service or experience qualification attached to the post of Personal Clerk prior to the amendment on 12.7.1993 was not deleted. Thus, Personal Clerks, who are on a higher scale of pay and are more qualified than Assistants and Typists, are required to fulfil the experience qualification, whereas other feeder categories are not required to fulfil such experience qualification. According to Mr. Sankaran, this is discriminatory and liable to be interfered with. 10. The learned AAG made submissions in response and to the contrary. The first contention of the learned AAG was with reference to the amendment to Rule 8. In this connection, she invited the attention of the Court to G.O.(Ms) No.220 and pointed out as to how Typists/Personal Clerks, who were in the selection grade as on 27.6.1989, were upgraded to the post of Senior Typists/Senior Personal Clerks subject to the condition that they should relinquish their rights of Promotion in the clerical line. Subsequently, this position changed and, by G.O.Ms. No.357, Personnel and Administrative Reforms Department, dated 2.11.1992 (G.O.Ms. No.357), these posts became promotional posts for those in the posts of Typist/ Personal Clerk. Thereafter, by G.O.Ms. No.385, Personnel and Administrative Reforms Department, dated 3.12.1992 (G.O.Ms. No.385), the entitlement to Promotion as Senior Typist/Senior Personal Clerk was assured irrespective of whether they opt for the administrative line. Therefore, she submitted that Personal Clerks and Senior Personal Clerks constitute two separate classes on different pay scales and the post of Personal Clerk is the only feeder category for promotion to the post of Senior Personal Clerk. She also pointed out that the Petitioners are not adversely affected by the amendment to Rule 8 whereby the post of Senior Personal Clerk was made as the feeder category for the post of ASO without changing the prescribed 4:1:1 ratio as between Assistants, Senior Personal Current Writ Cases / April 01 – 15/2021

738 CURRENT WRIT CASES 2021 (1) CWC Clerks and Senior Typists. In fact, she contended that the Petitioners, who are Senior Personal Clerks, would stand a better chance of being promoted after Personal Clerks were deleted from the feeder category. Her next contention was that Personal Clerks have promotion avenues both in the clerical and administrative cadre, whereas the only promotional avenue for Assistants is to the post of ASO. In the clerical line, Personal Clerks are entitled to the following promotional opportunities: Senior Personal Clerk, Personal Assistant, Private Secretary, Senior Private Secretary, Principal Private Secretary and Senior Principal Private Secretary. Pursuant to the Order, dated 20.11.2006 in W.P. No. 21949 of 2006, a Sub-Committee was established to examine the pattern of appointment of ASOs and the impugned amendments were made after considering the Report of the Sub- Committee, the order of the High Court and the recommendations of the TNPSC. Thus, these amendments are reasonable, valid and non-arbitrary. 11. With regard to the amendment to Rule 14, she pointed out that when Senior Personal Clerks opt for the administrative line, it is necessary to prescribe an experience qualification in view of the difference in the nature of work of an ASO and a Senior Personal Clerk. In order to substantiate this contention, she referred to the Tamil Nadu Secretariat Service Office Manual, wherein the duties of an ASO are set out and it is specified that an ASO is required to prepare notices and drafts, maintain personal registers and assist the Section Officer in section work. An ASO is also required to maintain the prescribed periodical registers and put up reminders. By contrast, as regards Personal Clerks and Senior Personal Clerks, the duties are to take dictation by shorthand from the Secretary or the other Officers and carry out such other items of work as are entrusted to them. On the above basis, she pointed out that the retention of the experience qualification is germane in light of the change in the nature of duties to be performed by an ASO. 12. We considered the submissions of Mr. Sankaran and the learned AAG and examined the materials on record. 13. The first question that arises for consideration is whether the Petitioners have the locus standi to maintain the Writ Petitions. Except Petitioners 22 & 23 in W.P. No.34445 of 2014, the admitted position is that all the other Petitioners in W.P. No.34445 of 2014 were Senior Personal Clerks as on the date of filing W.P. No.34445 of 2014. As regards W.P. No.19453 of 2015, both the Petitioners therein were Senior Personal Clerks as on the date of filing of the Writ Petition. Therefore, except Petitioners 22 & 23, none of the other Petitioners can contend that they are aggrieved by the deletion of personal clerks from the feeder category. Nonetheless, in view of the fact that Petitioners 22 & 23 were personal clerks as on the date of filing of the Writ Petition, we proceed to consider the claim on merits. However, prior to that, the law on the subject may be examined briefly. 14. In P.U. Joshi v. Accountant General, 2003 (2) SCC 632, the Supreme Court examined the scope for Judicial Review in such matters and held as under: Current Writ Cases / April 01 – 15/2021

Part 7 D. Selvan Christopher v. State of Tamil Nadu 739 (DB) (Senthilkumar Ramamoorthy, J.) “10. We have carefully considered the submissions made on behalf of both parties. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of policy is within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the Statutory Tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/subtraction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate Departments or bifurcate Departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing the existing cadres/posts and creating new cadres/posts. There is no right in any Employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a Government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service.” 15. Thus, the scope of Enquiry should be limited to examining whether the amended rules are unconstitutional on account of lack of competence or arbitrariness. The first step, in this process, would be to test the amendment to Rule 8 of the Special Rules for the Tamil Nadu Secretariat Service. The amendment was effected under G.O.(Ms.) No.220 in exercise of powers conferred by the Proviso to Article 309 of the Constitution of India. As such, there is no doubt that the amendment was carried out pursuant to a valid exercise of delegated legislative power by the State Government. The next question is whether the amendment is liable to be interfered with on the ground of arbitrariness or for any other reason. For this purpose, the text of the amended Rule 8 should be examined and it reads as under: “3. For Rule 8, excluding the provisos thereunder, the following Rule shall be substituted, namely: “8. Pattern of appointment of Assistant Section Officers in the Departments of Secretariat other than the Law Department, Tamil Development, Culture and Religious Endowments Department (Translations) and Governor’s Secretariat. Subject to Rule 8 of the General Rules, out of every eight vacancies in the category of Assistant Section Officers in the Departments of Secretariat other than the Law Department, Tamil Development-Culture and Religious Endowments Department (Translations), and the Governor’s Secretariat, appointment shall be made in the following order of rotation: (1) by Direct Recruitment; (2) by promotion from the category of Assistant; Current Writ Cases / April 01 – 15/2021

740 CURRENT WRIT CASES 2021 (1) CWC (3) by promotion from the category of Assistant; (4) by promotion from the category of Assistant; (5) by promotion from the category of Assistant: Provided that the 20th rotation shall be filled up by the non-graduate Assistants and that if no suitable and qualified non-graduate Assistant is available, then the said rotation shall be filled up from among the holders of the post of Assistant; (6) by promotion from the category of Senior Personal Clerks. (7) by promotion from the category of Senior Typist; and (8) by Recruitment by transfer from the category of Assistants in the Tamil Nadu Ministerial Service or the Tamil Nadu Judicial Ministerial Service.” On perusal thereof, we find that it provides for the appointment of ASO’s in the Departments of the Secretariat, other than the excluded Departments, in a particular order of rotation as between Direct Recruitment, promotion and recruitment by transfer. As regards appointment by promotion, the three feeder categories are Assistants, Senior Personal Clerks and Senior Typists, and, inter-se these three feeder categories, appointments are on a 4:1:1 ratio as specified in the amended Rule 5. The grievance of the Petitioners is with regard to the deletion of Personal Clerks from the feeder category. This deletion and substitution was done by an amendment to Rule 5, which is not under challenge. The failure to challenge Rule 5 considerably denudes the challenge to Rule 8 of vitality. Nonetheless, we proceed to test Rule 8 independently. In G.O.(Ms.) No.237, after taking into consideration the High Court Order, Sub-Committee Report and the TNPSC’s recommendation, it was recorded, inter alia, in Paragraph (v)(a), as under: “.... Further for the holders of the post of Personal Clerk, Senior Personal Clerk is the promotional Post. Similarly for the holders of the post of a Typist, Senior Typist is the promotional post. Hence, the Government are of the view that the holders of the post of Senior Personal Clerk and Senior Typist alone should be made as the eligible feeder categories to the post of Assistant Section Officer from among the said categories.” In exercise of delegated legislative power, subject to a constitutional or statutory challenge, it is always open to the Government to duly amend the provisions relating to promotion, including the feeder category, which would be considered for such purpose. In this case, as is evident from the above extract, the rationale for the deletion of Personal Clerks and Typists is stated clearly. In addition, G.O.(Ms.) No.220 also contains an additional explanation to the effect that the post of Senior Typist/Senior Personal Clerk is the promotional post from the post of Typist/Personal Clerk under G.O. Ms. No.357 and that, as per G.O.Ms. No.385, irrespective of whether Typists and Personal Clerks opt for the ASO line or not, they would be eligible for promotion as Senior Typist and Senior Personal Clerks in the available vacancies. On this issue, we also note that under G.O. (Ms.) No.65, a common rotation was provided for Personal Clerks, Typists and transferred Personal Assistants. Likewise, under G.O.(Ms.) No.186, a common rotation was provided for promotion from the post of Current Writ Cases / April 01 – 15/2021

Part 7 D. Selvan Christopher v. State of Tamil Nadu 741 (DB) (Senthilkumar Ramamoorthy, J.) Personal Clerks and for transferred Personal Assistants. By contrast, under the impugned Rule 8, separate rotations are provided for the feeder posts of Senior Personal Clerk (sixth rotation) and Senior Typist (seventh rotation), and there is some basis to state that it enhances the promotion prospects of Senior Personal Clerks such as the Petitioners. In these circumstances, we do not find anything arbitrary in the prescription of Senior Personal Clerk as the feeder category for promotion to the post of ASO. 16. Mr. Sankaran contended that the experience qualification of five years should have been deleted once a Bachelor’s Degree was prescribed as the Educational qualification for the post of Personal Clerks/Senior Personal Clerk. In response, the learned AAG pointed out that the duties of a Personal Clerk/Senior Personal Clerk are different from that of an ASO. On examining the Tamil Nadu Secretariat Service Manual, we note that ASOs are expected to prepare notes and drafts and to maintain personal registers. By contrast, Senior Personal Clerks are required to undertake shorthand work. As detailed in G.O.Ms. No.237, therefore, there is significant difference in the nature of duties to be performed by ASOs as compared to a Senior Personal Clerk, whereas the difference is not significant when the work of an Assistant and that of an ASO are compared. These administrative duties are not taught in a Bachelor’s Degree Course. Besides, Rule 14 also provides that work experience as a Personal Clerk would be reckoned for this purpose. When viewed cumulatively, notwithstanding the fact that the prescription of the experience qualification of five years in the post of Personal Clerk or Senior Personal Clerk may not be entirely germane to bridge the disparate nature of duties, the experience prescription cannot be construed as arbitrary. In any event, it is for the Government to decide on the necessary educational and experience qualification for a promotional post and this Court does not sit in appeal over such prescription of qualifications for a job. The other contention, in this regard, by Mr. Sankaran is that the experience qualification is not prescribed for other feeder categories. In response to this, the learned AAG submitted that the nature of work performed by other feeder categories is different, and this is detailed in G.O. Ms. No.237. In addition, she also pointed out that Personal Clerks and Senior Personal Clerks have the option of either continuing in the technical line or migrating to the administrative line. In these circumstances, the experience qualification was retained so as to arrive at a balance between the different feeder categories. Upon considering the rival contentions, we do not find any reason to interfere with these prescriptions. 17. For reasons set out above, we find that the Petitioners have failed to make out a case to declare either Rule 8 or Rule 14 as illegal, arbitrary or unconstitutional. 18. In the result, the Writ Petitions fail and are dismissed. Consequently, the connected Miscellaneous Petitions are closed. No Costs.  Current Writ Cases / April 01 – 15/2021

742 CURRENT WRIT CASES 2021 (1) CWC 2021 (1) CWC 742 IN THE HIGH COURT OF MADRAS A.P. Sahi, C.J. & Senthilkumar Ramamoorthy, J. W.A. Nos.31 & 32 of 2020 1.12.2020 S. Sivaji Ganesan .....Appellant Vs. District Revenue Officer, Madurai District, Madurai and others .....Respondents Tamil Nadu Village Servant Service Rules, 1980, Rules 5(1) & 5(2) — Village Assistant — Resident of respective Village — Whether mandatory requirement — Appellant and R4 applied for post of Village Assistant — Appellant selected — R4 contested that Appellant was not a Resident of concerned village and thus, not eligible for appointment — Held, requirement of being a Resident of subject Village as prescribed under Rule 5(2), only a preference and not a mandatory requirement — Term “take into consideration”, held, does not mean that Authority cannot exercise its discretion — Mandatory requirements prescribed in Rule 5(1) — Appellant herein duly fulfilled all mandatory requirements — Residence of a Candidate, not an eligibility condition and any rejection of candidature on said basis to be violative of Articles 14 & 16(2) — Order of Single Judge confirming Order of Tahsildar, dismissing Appellant from post of Village Assistant, set aside — Writ Appeal allowed. (Paras 24, 25, 27 & 31) CASES REFERRED G. Jayalal v. Union of India, 2013 (7) SCC 150 ...................................................................... 14 Kailash Chand Sharma v. State of Rajasthan, 2002 (4) LLN 36 (SC) ...................................... 18 P. Vasantha v. District Collector, Dindigul District, 2007 (6) MLJ 402................ 17, 29, 30, 31 S. Jeevana v. State of Tamil Nadu, 2020 (6) CTC 865 (DB) ................................................... 31 Secy., A.P. Public Service Commission v. Y.V.V.R. Srinivasulu, 2003 (2) CTC 752 (SC).... 14 N.G.R. Prasad, Advocate for Appellant. V. Jayaprakash Narayanan, State Government Pleader for Respondent Nos.1 to 3. W.As. ALLOWED — NO COSTS — C.M.Ps. CLOSED Prayer : W.A. No.31 of 2020 : Appeal under Clause 15 of the Letters Patent against the Order, dated 17.4.2009 passed in W.P. No.14290 of 2006. W.A. No.32 of 2020 : Appeal under Clause 15 of the Letters Patent against the Order, dated 26.11.2009 passed in Review Application No.146 of 2009. JUDGMENT A.P. Sahi, C.J. 1. These Intra-Court Appeals have been preferred by a Candidate, who came to be selected and appointed as Grama Kavalar (Village Assistant) for Current Writ Cases / April 01 – 15/2021

Part 7 S. Sivaji Ganesan v. District Revenue Officer, Madurai District 743 (DB) (A.P. Sahi, C.J.) T. Andipatti Village, Tirumangalam Taluk, Madurai District. The appointment was upset by the authorities and confirmed by the learned Single Judge, hence these Appeals. 2. On 30.6.1992, the post of Village Assistant fell vacant and the Tahsildar, Tirumangalam Taluk, notified the said vacancy announcing that the last date for submission of applications would be 28.7.1992. The Appellant and the fourth Respondent had applied and their interview was conducted on 5.8.1992. The Tahsildar, on an assessment of the respective candidatures and the qualifications possessed, finally selected and appointed the Appellant against the post vide Order, dated 26.8.1992. 3. Aggrieved, the Fourth Respondent preferred an Appeal before the Revenue Divisional Officer, who, vide Order, dated 13.1.1993, allowed the same on the ground that the status of residence as provided for in Rule 5(2) of the Tamil Nadu Village Servant Service Rules, 1980 (for brevity, “the 1980 Rules”) appear to have been overlooked and, therefore, remitted the matter before the Tahsildar for fresh consideration. 4. Aggrieved, the Appellant preferred a Revision Petition before the District Revenue Officer, who, vide Order, dated 7.5.1993, upheld the Order passed by the Revenue Divisional Officer. 5. Aggrieved, the Appellant preferred Original Application No.3161 of 1993 before the Tamil Nadu Administrative Tribunal along with a request for stay. 6. It is evident from the order of the District Revenue Officer, dated 7.5.1993 that during this period of litigation, the Appellant continued to function on the post in question. The Administrative Tribunal passed an Interim Order on 3.6.1993 staying the operation of the Orders passed against the Appellant. The said Interim Order came to be confirmed and extended until further orders on 21.6.1993. 7. The Fourth Respondent put up a contest urging that the Fourth Respondent had already an experience of three months of working as a temporary Grama Kavalar and that it was only on the physical appearance of the Appellant that the Tahsildar considered him to be a better Candidate. He also urged that the authorities have found, after going through the records and on enquiry, that the Appellant was not a resident of Karisalpatti Village, but a resident of Thayaneri Village, which is a hamlet of Melakottai Village and, therefore, the Appellant not being a resident of Andipatti Village, he could not have been appointed. This basic requirement was not possessed by the Appellant and, therefore, he was totally ineligible for being considered for appointment. 8. The Original Application before the Tribunal stood transferred to the High Court after the Tribunal became non-functional and the same stood Current Writ Cases / April 01 – 15/2021

744 CURRENT WRIT CASES 2021 (1) CWC converted as W.P. No.14290 of 2006. The matter was considered long thereafter, and on 17.4.2009, a learned Single Judge dismissed the Writ Petition in absentia, as the learned Counsel for the Petitioner reported no instructions. Relying on Paragraphs (9) & (10) of the reply Affidavit filed before the Tribunal, which narrated the aforesaid stated deficiencies about the Appellant not being a resident of the village, the learned Single Judge dismissed the Writ Petition. 9. On the dismissal of the Writ Petition, it appears that the said order was finally brought to the notice of the Tahsildar, who passed an order on 27.7.2009 relieving the Appellant from service by dismissal from the post of Village Assistant. 10. It appears that on the receipt of this order the appellant immediately approached this Court by filing Review Application No.146 of 2009 with an application for delay condonation. The review application was dismissed by a detailed Judgment holding that since there is no error apparent on the face of record, the review application could not be entertained. The learned Single Judge, however, relied on other Judgments to indicate that the power of Judicial Review can be exercised only with regard to the decision making process and not with the decision arrived at by authority. 11. Aggrieved by the said orders, the present Appeals came to be preferred during April, 2010 and after condonation of delay and other relevant factors, the Appeals were numbered and entertained and came to be listed for hearing before us. 12. Mr. N.G.R. Prasad, learned Counsel for the Appellant had advanced his submissions, and on 17.9.2020 we had passed the following Order: “After the matter was heard, Mr. N.G.R. Prasad, learned Counsel for the Appellant, submits that the Fourth Respondent probably is no more. Let an appropriate Affidavit along with an application be filed for taking steps in this regard. 2. The contention of Mr. N.G.R. Prasad is that the premise on which the Appellant was non-suited namely, not being a resident of the same village, is incorrect and factually wrong inasmuch as the Appellant has been residing in the same village. 3. He further submits that denying employment on the basis of preferential residence is constitutionally impermissible and for which he has relied on the Judgment of the same learned Single Judge, who has dismissed the Review Petition, reported in the case of P. Vasantha and others v. District Collector, 2007 (6) MLJ 402. He has further relied on a Division Bench Judgment of which the learned Single Judge was a party, namely, in the case of Union of India v. Central Administrative Tribunal, Chennai, 2008 (3) LLN 233. He has also invited the attention of the Court to the provisions of Tamil Nadu Village Servant Service Rules, 1980, particularly, Rule 5, which reads as follows: “5. Qualifications: Current Writ Cases / April 01 – 15/2021

Part 7 S. Sivaji Ganesan v. District Revenue Officer, Madurai District 745 (DB) (A.P. Sahi, C.J.) (1) No person shall be eligible for appointment to the post of a Village Servant, unless he possesses the qualifications specified below, namely: (i) knowledge to read and writ Tamil; and (ii) knows cycling and is physically fit. (2) The Appointing Authority shall also take into consideration the following factors, namely: (i) whether the Applicant is a resident of the charge of village; (ii) whether the Applicant is a person belonging to one of the communities included in the list of Backward Classes recognised by the Government of Tamil Nadu; (iii) whether the Applicant is a person belonging to Scheduled Castes/Schedule Tribes; and (iv) whether the Applicant is an ex-serviceman. (3) In making appointments under these rules, the appointing authority shall take into consideration the character and antecedents of the Applicants.” 4. He submits that sub-rule (2) of Rule 5, is only an indicator of giving a preference and so far as the essential qualifications are concerned, that were possessed by the Appellant. 5. However, all these issues will have to be taken into consideration as and when an appropriate application is tendered to the Court about Respondent No.4. List the Appeals on 3.11.2020.” 13. The matter took a turn keeping in view the fact that learned Counsel for the parties confirmed that the Fourth Respondent had died on 5.9.2012 leaving behind his wife and two sons as Legal Heirs. The post was, therefore, vacant. The Legal Heirs of the Fourth Respondent did not put up any further contest. 14. In the above background, Mr. N.G.R. Prasad has raised three primary contentions, apart from the other submissions on facts. Firstly, he contends that the conclusion drawn by the authorities that the Appellant is a resident of Thayaneri Village is factually wrong. Secondly, he contends that the 1980 Rules which prescribes the qualifications for the post in question, does not make it compulsory for a Candidate to be eligible only if he is a resident of the village. It is a mere preference that can be given, but such a failure cannot result in ineligibility of a Candidate. The third submission is that even otherwise denial of an opportunity of employment on the ground of residence is constitutionally impermissible, for which he relies on the decisions of the Apex Court in Secy., A.P. Public Service Commission v. Y.V.V.R. Srinivasulu, 2003 (2) CTC 752 (SC) : 2003 (5) SCC 341; and G. Jayalal v. Union of India, 2013 (7) SCC 150. 15. On facts, he has invited the attention of the Court to Paragraph (7) of the Revision Petition that was filed by the Appellant before the District Revenue Officer, which is extracted herein under: Current Writ Cases / April 01 – 15/2021

746 CURRENT WRIT CASES 2021 (1) CWC “7. The Revision Petitioner is residing in Karisalpatti Village which is one of the group village of T. Andipatti Village. The learned Revenue Divisional Officer mentioned in his order that the Revision Petitioner is living in Thayaneri Village which is one of the group village of Melakkottai group. To prove the residence of the Revision Petitioner who is living in Karisalpatti village has filed number of documents before the learned Revenue Divisional Officer, Usilampatti. But the learned Revenue Divisional Officer has not even seen the documents of the Revision Petitioner and he has not discussed with the documents of the Revision Petitioner in his order. The Revision Petitioner and his parents are living in the Karisalpatti village in the house of one Chikkannan and on a monthly rent. The Rent Deed and the House Rent Receipt, and the Village Administrative Officer certificate to that effect is also produced before the learned Revenue Divisional Officer, Usilampatti. Btu the learned Revenue Divisional Officer has not discussed the above said documents in his order.” 16. He has urged that ample evidence was filed to demonstrate that the Appellant was a resident of Karisalpatti Village and not of Thayaneri Village. Karisalpatti Village formed part of Village Panchayat of Andipatti Village and, therefore, it cannot be said that the Appellant was a total stranger or an alien to Village Andipatti in order to be considered for appointment as Village Assistant as per the provisions of the 1980 Rules. He, therefore, contends that the learned Single Judge not only summarily dismissed the Writ Petition without considering these aspects, but also not considered the constitutional issue in correct perspective by applying appropriate precedents. 17. Mr. N.G.R. Prasad has also invited the attention of the Court to the Judgment in the case of P. Vasantha and others v. District Collector, Dindigul District and others, 2007 (6) MLJ 402, delivered by the same learned Single Judge who dismissed the Writ Petition giving rise to the Appeal, where the very same constitutional issue was considered and it was held that being a resident of the locality is only a preference and not a basic qualification, but if a preference is extended compulsorily based solely on residence, the same would be hit by Article 16(2) of the Constitution of India. Paragraphs (14), (15), (17) & (18) of the above mentioned Judgment of the same learned Single Judge are extracted herein under: “14. The question that arises for consideration is whether any preference based upon locality can be considered to the exclusion of other consideration by the Department. 15. As rightly contended by the official Respondents, preferences based upon the locality is only a preference and not a basic qualification. If preference has been extended solely based upon the residence of a Candidate, the same will be hit by Articles 16(2) of the Constitution and Courts have frowned upon any preference being shown upon the locality. ... 17. Therefore, if the contentions of the Petitioners is to be accepted then the preference should be given solely on the basis of the residence, and that will be hit Current Writ Cases / April 01 – 15/2021

Part 7 S. Sivaji Ganesan v. District Revenue Officer, Madurai District 747 (DB) (A.P. Sahi, C.J.) by Article 16(2) of the Constitution. However, considering the fact that the post requires constant attention towards the children and the availability of the person in a nearby area is preferable and a proximity of distance by the eligible candidates may be constitutionally permissible but the selection cannot be solely on the ground of residential preferences to the exclusion of other criteria has to be accepted as it will hit Article 16(2) of the Constitution. As rightly contended by the official Respondents, the proximity of residence/locality is only a preference and not a qualification by itself. Once it is established that none of the selected Candidates are otherwise disqualified they cannot be edged out of consideration only on the ground that they were not being the residents of the locality. 18. Further, preferring a Candidate from a particular hamlet to the exclusion of Candidates from other hamlets in the same Village Panchayat Union or in respect of Panchayat Union Centres preferring the Candidates from only one village to the exclusion of other villages living in the same panchayat union may also be arbitrary and in many times, it may also result in violating the communal roster being followed.” 18. It is urged that geographical classification is constitutionally impermissible and violative of Articles 14 & 16 of the Constitution of India and further reliance has been placed on the decision of Kailash Chand Sharma v. State of Rajasthan and others, 2002 (4) LLN 36 (SC) : 2002 (6) SCC 562. 19. An additional typed set of papers has been filed bringing on record the Death Certificate of the Fourth Respondent, and the Election Photo Identity Card and Aadhar Card of the Appellant to support the said submissions. 20. Learned State Government Pleader, on the other hand, has vehemently opposed the Appeals and urged that according to the 1980 Rules the eligibility of being a resident of a village is a sine qua non and, therefore, the conclusions drawn by the authorities as well as the learned Single Judge are not erroneous either on facts or on law. 21. Having gone through the pleadings, the Judgments, and also the entire background of the litigation, particularly the fact that the Fourth Respondent died way back in 2012, we find that the interest of justice would be served if the Appeals are allowed and the matter is remitted back to the Tahsildar, Tirumangalam Taluk, for passing a fresh order in the light of the conclusions drawn by us supported by the reasons herein after. 22. The primary question for consideration is as to whether an ineligibility would be attracted if a Candidate for the post in question under the 1980 Rules is not a resident of the same village where he is to be posted as a Village Assistant. 23. The purpose of a Village Assistant is to serve the interest of the village, and he being a resident of the same village, appears to be a consideration while assessing the candidature so that a Village Assistant may be readily Current Writ Cases / April 01 – 15/2021

748 CURRENT WRIT CASES 2021 (1) CWC available for carrying out the duties of a Village Assistant effectively. There cannot be any dispute, much less a legal dispute on a preference being given to a Candidate if he is a resident of the village, as he is placed in an advantageous position to serve the interest of the village. A valid presumption can be raised in favour of an individual, that he being a resident of the same village, would be having sufficient knowledge about the topography, the expanse of agricultural holdings, the inhabitants and the hamlets of the village, and a fair acquaintance with the villagers so as to recognize them individually. Thus the familiarity of an individual amongst his own villagers and his proximity would be a source of genuine information available which an outsider will have to acquaint himself with that might take a considerable time. An outsider would not be readily available in the village. Such factors may have worked with the legislature to have introduced the provision of taking into consideration the residence of a Candidate. 24. The Rules that have been gainfully extracted by us in our Order, dated 17.9.2020, quoted above, provides for qualification in Rule 5. Rule 5(1) categorically prescribes the compulsory qualifications making a Candidate eligible for appointment, which are knowledge to read and write Tamil; knows cycling, and is physically fit. There is no dispute that the Appellant was appointed on the ground that he is eligible, knew cycling, and comparatively being younger in age was physically more fit to perform the duties of a Village Assistant for a longer period of time as compared to the Fourth Respondent. This resulted in the Letter of Appointment, dated 26.8.1992, which indicates the same. 25. The dispute commences with Rule 5(2), and a perusal thereof would indicate that the opening recital of the said Rule announces that the appointing authority “shall” also take into consideration the following factors. Thus, the Appointing Authority is under an obligation to take into consideration the factors referred to in Rule 5(2) of the 1980 Rules. The word “shall” thus obligates the authority to carry out the assessment also on a consideration of the said factors. This, therefore, means that the authority cannot ignore the consideration referred to under the said Rule, where there are four factors mentioned, namely, (i) whether the Applicant is a resident of the village; (ii) whether the Applicant belongs to one of the communities included in the list of Backward Classes; (iii) whether the Applicant is a person belonging to the Scheduled Caste; and (iv) whether the Applicant is an Ex-service man. 26. None of the other three factors are involved herein, as there is no dispute about the status of community of either the Appellant or the Fourth Respondent. The only contention put forth by the Fourth Respondent was that the Appellant was not a resident of the village and this aspect was not considered by the Tahsildar while proceeding to grant appointment to him. From a perusal of the Order, dated 26.8.1992, it is correct that this consideration has not been recited in the appointment order of the Appellant, Current Writ Cases / April 01 – 15/2021

Part 7 S. Sivaji Ganesan v. District Revenue Officer, Madurai District 749 (DB) (A.P. Sahi, C.J.) even though the assessment has been made on gauging the physical fitness of the Appellant as compared to that of the Fourth Respondent. 27. The question is whether being a resident of the village is compulsory, bringing it within the fold of eligibility or not. On a perusal of Rule 5(1), it is evident that where the legislature felt it appropriate, it prescribed the basic minimum qualifications. Accordingly, Rule 5(1) prescribes the basic qualifications, which does not include the qualification of a candidate being a resident of the village. This qualification has been kept for an additional consideration under Rule 5(2) of the 1980 Rules looking to the purpose of the post in question, namely that of a Village Assistant, where a resident of the same village would be at an advantageous position as noted above. In our considered opinion, such a consideration would be in the nature of a preference, the consideration whereof is essential, but by itself it does not fall within the basic qualifications as prescribed under Rule 5(1) of the 1980 Rules. At the highest pedestal, the consideration of a candidate of being a resident of the village is obligatory on the authority and a decision can rest on the basis of preference as the rule provides for the same. 28. A decision to appoint a person of the same village thus cannot be said to be arbitrary if a preference is given by the appointing authority to such a Candidate, in as much as the appointment is not being made solely on the ground of residence, but also preferentially extending the benefit of appointment to such a person, who is a resident of the Village. We find no error in the scheme of the Rules to be hit by Article 14 or Article 16(2) of the Constitution of India, as the residence of the candidate under the 1980 Rules does not form part of the basic qualification. 29. However, coming to the operation of the Rule, we find that the authority is under an obligation to consider the preferences. Rule 5(2) of the 1980 Rules is not under challenge as being violative of the fundamental rights guaranteed under the Constitution of India. What Mr. N.G.R. Prasad, in our assessment, contends is that while understanding the Rule, the authorities have committed a complete error by treating it to be a compulsory basic qualification, and doing so that is while implementing the Rule, the authorities have arrived at a wrong conclusion, being hit by Article 14 & 16(2) of the Constitution of India. He contends that the learned Single Judge while dismissing the Writ Petition and also the Review Petition has completely overlooked this aspect of the matter, more so when the same learned Single Judge while deciding another Petition two years earlier on 18.7.2007 in the case of P. Vasantha and others (supra) has held otherwise. 30. We agree with the contention of Mr. N.G.R. Prasad to the extent that the learned Single Judge has not taken these aspects into consideration, and an oversight of his own Judgment in the case of P. Vasantha and others (supra) confirms the correctness of the argument advanced by the learned Counsel for the Appellant. Current Writ Cases / April 01 – 15/2021

750 CURRENT WRIT CASES 2021 (1) CWC 31. In our opinion, keeping in view the nature of the requirement for consideration, namely that of residence of a Candidate, a candidate has to be compulsorily selected only if he is a resident of the village, does not appear to be an eligibility condition and, therefore, a Candidate’s rejection on that sole ground may be invalid as being violative of Article 14 & Article 16(2) of the Constitution of India, as indicated by the learned Single Judge in the decision of P. Vasantha and others (supra). May be it is for this reason that the place of residence was not kept as a compulsory eligibility qualification under Rule 5(1) of the 1980 Rules, but its consideration was made obligatory under Rule 5(2) so that if a candidate of the same village was available, then that preference would not be ordinarily overlooked. The nature of the Rule is such that it makes it compulsive for the authority to consider the place of residence of a Candidate, but at the same time nowhere indicates it to be an eligibility condition for selection. The word “preference” has its different connotations keeping in view the text and context of the Rule involved, which is peculiar in the present case. We may refer to our latest Judgment covering the meaning and the interpretation of the word “preference” given by different Courts, including the Apex Court, in Paragraphs (23) & (24) of the Judgment in the case of S. Jeevana v. State of Tamil Nadu, 2020 (6) CTC 865 (DB) : 2020 (2) WLR 721: “23. The word “prefer” means to place before or to have greater value. It is a priority, where a claim ranks first for settlement. This, in service law, has been interpreted by the Supreme Court in a couple cases, reference be had to the Judgment in the case of Secretary, A.P. Public Service Commission, Y.V.V.R. Srinivasulu and others, 2003 (5) SCC 341, where it was held that the enforcement of a preferential clause in selection will mean only that other things being equal, those with the additional qualification can be preferred. This was followed by the Apex Court in the case of G. Jayalal v. Union of India and others, 2013 (7) SCC 150, wherein in Paragraph (15), the Court reiterated the view expressed in the Judgment referred to above. 24. The line of decisions of the Apex Court lay down the ratio as follows: (i) In Sher Singh v. Union of India, 1984 (1) SCC 107, the Apex Court examined the provisions of Section 47(1) of the Motor Vehicles Act, 1939 providing for preference to the State Transport Undertaking by grant of permit and explained the meaning of ‘preference’ as under: “7. ...... The expression ‘preference’ amongst others means prior right, advantage, precedence etc. But how would it be possible to give precedence one over the other. It signifies that other things being equal, one will have preference over the others. ......... Preference in this context would mean that other things generally appearing to be qualitatively and quantitatively equal though not with mathematical accuracy, statutory provision will tilt the balance in favour of the Undertaking.” (ii) In Government of Andhra Pradesh v. P. Dilip Kumar, 1993 (2) SCC 310, the Apex Court held as under: Current Writ Cases / April 01 – 15/2021

Part 7 S. Sivaji Ganesan v. District Revenue Officer, Madurai District 751 (DB) (A.P. Sahi, C.J.) “13. The matter may be looked at from another viewpoint. The word ‘preference’ as understood in ordinary parlance means preferring or choosing as more desirable, favouring or conferring a prior right. What then is the purpose and object sought to be achieved by the insertion of the preference clause in the rule ? There is no doubt that preference was sought to be granted under Note 1 to post-graduates in the larger interest of the administration. How would the interest of the administration be served by granting preference to post-graduates ? It is obvious that it was thought that on account of their higher mental equipment the quality of performance that the State will receive from highly qualified engineers would be better and of a high order. In other words the State considered it necessary to strengthen the engineering service by recruiting post-graduates to the extent available so that the State may benefit from their higher educational qualifications and better performance. If this was the objective surely it would not be realised unless post-graduates are treated as a class and given preference en bloc over the graduates. ..... 15. ........It is true that notwithstanding the preference rule it is always open to the recruiting agency to prescribe a minimum eligibility qualification with a view to demarcating and narrowing down the field of choice with the ultimate objective of permitting candidates with higher qualifications to enter the zone of consideration. It was, therefore, held that screening a Candidate out of consideration at the threshold of the process of selection is neither illegal nor unconstitutional if a legitimate field demarcating the choice by reference to some rationale formula is carved out. Thus the challenge based on Articles 14/16 of the Constitution was repelled. .......” (iii) In Secretary (Health), Department of Health and F.W. v. Anita Puri, 1996 (6) SCC 282, the question raised before the Apex Court was answered as follows: “7. When an advertisement stipulates a particular qualification as the minimum qualification for the post and further stipulates that preference should be given for higher qualification, the only meaning it conveys is that some additional weightage has to be given to the higher qualified candidates. But by no stretch of imagination it can be construed to mean that a higher qualified person automatically is entitled to be selected and appointed. In adjudging the suitability of person for the post, the expert body like Public Service Commission in the absence of any statutory criteria has the discretion of evolving its mode of evaluation of merit and selection of the candidate. The competence and merit of a Candidate is adjudged not on the basis of the qualification he possesses but also taking into account the other necessary factors like career of the Candidate throughout his educational curriculum, experience in any field in which the selection is going to be held, his general aptitude for the job to be ascertained in course of interview, extracurricular activities like sports and other allied subjects, personality of the Candidate as assessed in the interview and all other germane factors which the expert body evolves for assessing the suitability of the candidate for the post for which the selection is going to be held.” (iv) In Executive Officer v. E. Tirupalu, 1996 (8) SCC 253, the Apex Court held that where rules provide for preference to a particular class of Candidates, Current Writ Cases / April 01 – 15/2021

752 CURRENT WRIT CASES 2021 (1) CWC that preference under the Rules cannot be applied irrespective of the merit of Candidates, the inmates have to be given appointment. It means that the merit of the candidates being equal, preference would be given to the inmates of the class which is to be given preferential right and it certainly does not mean an automatic appointment without considering the cases of other Candidates. Therefore, even if the rules provide for preferential right, candidates having such subjects would have preferential right only when they complete with other Candidates and are found on equal footings, otherwise not. (v) In State of Uttar Pradesh v. Om Prakash, AIR 2006 SC 3080, after considering the earlier Judgments on the issue, the Apex Court held that the word “preference” would mean that when the claims of all Candidates, who are eligible and who possess the requisite educational qualification prescribed in the advertisement are taken for consideration and when one or more of them are found equally positioned, then only the additional qualification may be taken as a tilting factor, in favour of the Candidates vis-a-vis others in the merit list prepared by the Commission.” The said Judgment was taken up in Appeal before the Apex Court in S.L.P.(C) Nos.12589-12590/2020 that was dismissed on 27.11.2020. 32. We may further clarify that Rule 5(2) gives a discretion to the Appointing Authority, while making it obligatory for considering the preferences referred to therein. The words “take into consideration” cannot be understood to mean that the authority will not exercise its discretion. After all a discretion has to be exercised, as in the instant case, according to the norms prescribed and cannot be ignore. The discretion has to be judicious, but in view of what has been stated herein above, a candidature cannot be rejected solely on the ground of the Candidate not being possessed of the advantage of residence of the same village. 33. The Judgments that have been cited in relation to the subject matter, do not appear to have taken notice of two other contingencies that flow from 1980 Rules. Learned Counsel also did not advance their submissions, but it is worth taking note of Rule 12 of the 1980 Rules which provides that the post in question is a transferable post. Thus, even if a Village Servant is a resident of the same village, then the Competent Authority has the power to transfer him to another village which indicates that the compulsion of eligibility of being a resident of the village is not mandatory, but preferential. This gets fortified by a further mandate contained in Rule 17 which is extracted herein under: “Residence.— The Village Servant shall reside in the Village under his charge.” The aforesaid Rule therefore makes it compulsory for a Village Servant to reside in the same village even if he is not a resident thereof. Thus, the selection process may not get vitiated solely on this count, but after selection or even otherwise the Village Servant has to reside in the village under his charge. Resultantly, the absence of a Village Servant after his appointment Current Writ Cases / April 01 – 15/2021

Part 7 S. Sivaji Ganesan v. District Revenue Officer, Madurai District 753 (DB) (A.P. Sahi, C.J.) from the village appears to be impermissible, and he has to reside in the village under his charge. It appears that even if a resident of the same village is selected, then he has to actually reside in the village and no migration would be permissible. The said Rule, therefore, also reflects a compulsion of residing in the village after being selected, and is not an essential eligibility condition as explained herein above. 34. The authorities are definitely under an obligation to take into consideration the factors provided under the 1980 Rules, but it is only when the preferences are to be given effect to that the question of its applicability would arise. As indicated above, while issuing the letter of appointment, this aspect has not been considered and neither did any of the authorities look into the contention of the Appellant on the basis of the documents that he had produced that he was claiming to be not a resident of Village Thayaneri, that was the consistent stand of the authorities. The Appellant’s contention throughout was that he was a resident of Village Karisalpatti, which formed part of the cluster village Andipatti Panchayat. Whether such a consideration would also tend in favour of the Appellant or not has not been taken into account. 35. At times facts unfold different stories in different cases. The fact that the Fourth Respondent died in 2012 and that the Appellant is still alive does indicate that the consideration of the Appellant being physically fit to serve the interest of the village has by divine providence turned out to be true. The Appellant had been favoured with an Interim Order throughout the pendency of the case before the Tribunal and till 27.7.2009, after the dismissal of the Writ Petition when the Appellant’s services came to be disengaged. 36. In the background aforesaid, when the Fourth Respondent died in 2012 itself, the mere pendency of the Appeal or its disposal at this stage should not take away the power of the authorities to exercise their discretion once again keeping in view the legal position as explained herein above and also the fact that the Appellant had been appointed by the Tahsildar. 37. For all the reasons aforesaid, we allow the Appeals and set aside the impugned Judgment, dated 17.4.2009, as also the Judgment on the Review Petition, dated 26.11.2009. We also set aside the Order, dated 13.1.1993 and 7.5.1993 passed by the authorities concerned and remit the matter to the Tahsildar, Tirumangalam Taluk, to consider the matter once again, more so in the light of the fact that the Fourth Respondent is dead, and pass an appropriate order in accordance with law. The passing of our order will not automatically amount to the reinstatement of the Appellant on the post in question, as he appears to be out of service after 27.7.2009. In the event, the Tahsildar proceeds to pass an order in favour of the Appellant, he shall not be entitled to any past honorarium for the period he has not worked. In the result, the Appeals stand allowed. No Costs. Consequently, C.M.P. Nos.384 & 391 of 2020 are closed.  Current Writ Cases / April 01 – 15/2021

754 CURRENT WRIT CASES 2021 (1) CWC 2021 (1) CWC 754 IN THE HIGH COURT OF MADRAS N. Anand Venkatesh, J. W.P. No.10712 of 2020 & W.M.P. No.13011 of 2020 15.9.2020 K. Saraswathi. 2. K. Balan @ Vijayakumar .....Petitioners Vs. State of Tamil Nadu, rep. by its Secretary to Government Housing and Urban Development Department, Secretariat, Chennai-9. 2. Special Tahsildar [LA]- Housing Schemes, No.3 TATABAD, Coimbatore-12. 3. Executive Engineer & Administrative Officer, Coimbatore Housing Unit, Tamil Nadu Housing Board, TATABAD, Coimbatore-12. 4. Superintending Engineer, Tamil Nadu Housing Board, Salem Region, Coimbatore-2. 5. Tahsildar, Coimbatore North Taluk, Coimbatore .....Respondents Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (30 of 2013), Section 24(2) — Applicability in respect of lands acquired under 1894 Act — Issues are: (a) Whether physical possession was taken by State ? and (b) Whether Compensation was paid ? — Proceedings under 1894 Act to lapse only if both conditions viz. taking possession and payment of Compensation satisfied for taking benefit under 2013 Act — Ratio laid down in Indore Development Authority v. Manohar Lal and others applied. (Paras 13 & 14) Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (30 of 2013), Section 24(2) — Taking over Physical Possession — Drawing of Panchnama of taking possession is correct mode — While taking possession of vacant land or large tract of land, Panchnama of taking over is definitely required — Only document available to prove taking over is Possession Certificate — Original records missing — Taking over not satisfied. (Paras 16, 17 & 19) Transfer of Property Act, 1882 (4 of 1882) — Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement, 2013 (30 of 2013) — Difference between — Under TP Act, possession always follows Title in respect of vacant land — In Acquisition proceedings converse applies in that Title follows possession. (Paras 17 & 19) Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (30 of 2013), Section 24(2) — Land Acquisition Act, 1894 (1 of 1894), Section 31(2) — Payment of Compensation — Cases, where Compensation tendered does not actually reach Landowner — Circumstances of — (a) Landowner does not consent or receive it; (b) no competent person having Title to lands acquired available to receive it; (c) dispute over Title to lands acquired Current Writ Cases / April 01 – 15/2021

Part 7 K. Saraswathi v. State of Tamil Nadu 755 (N. Anand Venkatesh, J.) amongst various persons exist; (d) dispute regarding apportionment of Compensation among Co-Owners exist — Award recognizes existence of person having Title to receive it — No evidence of actual deposit made into Civil Court — Held, Compensation not paid to Landowners — Scheme of deposit in 1894 Act discussed. (Para 21) Land Acquisition Act, 1894 (1 of 1894), Section 12(2) — Tendering of Compensation amount — Meaning — Tendering of amount involves offer made for payment to another person — Collector armed with funds and issuance of sufficient Notice to Payee to receive same at specified place would amount to tendering. (Paras 28 & 29) Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (30 of 2013), Section 24(2) — Land Acquisition Act, 1894 (1 of 1894), Sections 4, 6, 11, 12, 16, 31 & 32 — Concluded proceedings — Meaning of — Entire process commencing from Notification under Section 4 culminating in taking possession and disbursing Compensation would amount to concluded proceedings. (Para 32) Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (30 of 2013), Section 24(2) — Notification issued in 1997 — Housing Board entered into property in 2020 and Tender Notification issued — Landowners’ cause of action arises only in 2020 in facts and circumstances of case — No delay. (Paras 37 & 38) CASES REFRRED DDA v. Sukhbir Singh, 2016 (6) CTC 624 (SC)...................................................................... 28 Indore Development Authority v. Manoharlal, 2020 SCC Online SC 316 .......................... 8, 10 Indore Development Authority v. Shailendra, 2018 (3) SCC 412 ........................................... 28 AR.L. Sundaresan, Senior Counsel assisted by G. Sankaran, Advocate for Petitioners. Vijay Narayan, Advocate General assisted by E. Manoharan, Special Government Pleader for Respondent Nos.1, 2 & 5; Dr. R. Gouri, Standing Counsel for Respondent Nos.3 & 4. W.P. ALLOWED — NO COSTS — M.P. CLOSED Prayer : Writ petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Declaration to declare the entire Land Acquisition proceedings relating to proceedings covered in Award No.2/99, dated 31.12.1999 of the 2nd Respondent in respect of the lands belonging to the Petitioners comprised in S.F. No.6/2A to an extent of Acre 1.82 cents situated in Vellakinaru Village, Coimbatore District, become lapsed, by virtue of the operation of the provisions contained in Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, [Act 30/2013]. Judgment Reserved on 10.9.2020 and Pronounced on 15.9.2020 JUDGMENT 1. This Writ Petition has been filed for the issue of a Writ of Declaration to declare that the Land Acquisition proceedings relating to the subject property Current Writ Cases / April 01 – 15/2021

756 CURRENT WRIT CASES 2021 (1) CWC has lapsed by virtue of the operation of the provisions contained in Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 [hereinafter called as “The Act”]. 2. The case of the Petitioners is that the subject property situated at S.F. No.6/2A, measuring to an extent of 1.82 acres at Vellakinaru Village, Coimbatore District, originally belonged to the father-in-law of the 1st Petitioner, viz., Thiru.Palani Gounder [late] and after his lifetime, the property devolved on the husband of the 1st Petitioner. After his death, the 1st Petitioner and her son/2nd Petitioner herein, inherited the subject property. The Revenue records also stood in their names. The further case of the Petitioners is that the property in question is an Agricultural land. 3. The subject property along with a large extent of lands were acquired under the Land Acquisition Act, 1894 [hereinafter called as “the 1894 Act'”] for the formation of Vellakinaru Neighbourhood Scheme. Section 4(1)- Notification was issued on 18.12.1996 and Section 6-Declaration was made on 24.12.1997. The Award Enquiry was conducted under Section 11 of the 1894 Act and the Award was passed on 13.12.1999. The specific case of the Petitioners is that they were never served with any notice at any stage of the proceedings even though they are the record tenure holders of the land in question. The Petitioners further state that when the Acquisition proceedings were started, there was a lot of resistance on the ground that fertile Agricultural lands are being taken away and the Petitioners were under the impression that the entire proceedings has been abandoned and the Petitioners continued to utilise the lands for Agricultural purposes. To substantiate the same, the Patta and Adangal extract have been filed, which shows that that names of the Petitioners continued to be recognised as the notified Owners of the subject property. 4. The officials belonging to the Tamil Nadu Housing Board [TNHB] came to the subject property and informed the Petitioners that the property has already been acquired by the Government and the possession has been handed over to the TNHB and they wanted to proceed further to implement a project. It also came to the notice of the Petitioners that the TNHB has issued a Tender Notification on 3.6.2020 inviting Tenders for development of the Housing Scheme in the subject property. The Petitioners also came to understand that the Patta has been transferred in the name of the TNHB by virtue of the Orders passed by the 5th Respondent on 15.6.2020. A Public Notice was also issued by the Town and Country Planning Authority, Coimbatore with regard to the change of user of land from Agricultural to Residential and objections were called for from the general public. According to the Petitioners, it is only at this point of time, they came to understand that an Award has been passed behind their back and the Petitioners were kept in the dark for so many years and neither Compensation was paid to them nor the possession was taken from them. Current Writ Cases / April 01 – 15/2021

Part 7 K. Saraswathi v. State of Tamil Nadu 757 (N. Anand Venkatesh, J.) 5. Aggrieved by the action taken by the Respondents, the present Writ Petition has been filed for the issue of a Writ of Declaration to declare that the entire land Acquisition proceedings with regard to the subject properties as lapsed by virtue of the operation of provision under Section 24(2) of the Act. 6. The 3rd Respondent has filed Counter Affidavit and the relevant portions in the Counter Affidavit are extracted hereunder: “6. It is submitted that the dry lands in S.F. No.6/2A to an extent of 1.82 acres of lands possession, which vested with the Government and taken over by the Land Acquisition Officer along with other dry lands to an extent of 7.82 acres was handed over to the Tamil Nadu Housing Board evidencing Possession Certificate on 16.12.2005 as per Land Acquisition Act, from that the peaceful possession is vested with Tamil Nadu Housing Board. 7. It is submitted that the compensation amount of Cheque `1,33,370 for the S.F. No.6/2A was deposited under 30 & 31 of the Land Acquisition Act, 1894 in Coimbatore Principal Subordinate Court, bearing No.973400, dated 1.6.2000 with the acknowledgment of Principal Subordinate Court, dated 4.6.2000. 20. It is submitted that the Draft Notification under Section 4(1) of the Land Acquisition Act was approved by the Government in G.O.Ms. No.495, Housing and Urban Development Department, dated 14.11.1996. The Draft Notification under Section 4(1) of the Land Acquisition Act was published at Pages 1 & 2 of Part B Section II of the Tamil Nadu Government Gazette, dated 18.12.1996 and also published in the Tamil dailies, viz., ‘Pirpagal’ and ‘Malaimurasu’ on 3.1.1997. The substance of the 4[1]-Notification was also published in the locality on 6.1.1997. 21. It is submitted that the Powers conferred on the Land Acquisition Officer, an enquiry under Section 5-A of the Land Acquisition Act was conducted by the Land Acquisition Officer and Special Tahsildar [LA], Housing Scheme, Unit 1, Coimbatore, on 31.3.1997 & 16.4.1997. 22. It is submitted that the copy of Statements of Objections obtained form the Landowners during 5-A-Enquiry were communicated to the Executive Engineer and Administrative Officer, Coimbatore Housing Unit on 16.6.1997 for his remarks. The Executive Engineer and Administrative Officer in his Letter No.LA.2/3775/97, dated 26.7.1997 has offered his remarks to the objections raised by the Landowners against the acquisition requesting to overrule all the objections as they are general in nature. The proceeding of the Land Acquisition Officer under Section 5-A of the Land Acquisition Act were drawn up and issued on 31.10.1997 by overruling the objections and further action was taken to proceed the acquisition under Section 6 of the Land Acquisition Act. 23. It is submitted that the Draft Declaration under Section 6 of the Land Acquisition Act was approved by the Government in G.O.Ms. No.442, Housing and Urban Development Department [LA3][2], dated 23.12.1997. The Draft Declaration under Section 6 of the Land Acquisition Act was published on 24.12.1997 in the Tamil Nadu Government Gazette Issue No.634 at Pages 2 & 3 and also published in the two Tamil Dailies, viz., ‘Pirpagal’ and ‘Malaimurasu’ on 29.12.1997. The substance of the Draft Declaration was also published in the locality on 2.1.1998. 24. It is submitted that the Draft Direction under Section 7 of the Land Acquisition Act was approved by the Collector, Coimbatore in his proceedings No.51898/93/F5, Current Writ Cases / April 01 – 15/2021

758 CURRENT WRIT CASES 2021 (1) CWC dated 26.3.1998. Notice under Section 9(1) of the Land Acquisition Act was published in the two village to inform the persons interested on the covered under acquisition about the Enquiry under Section 11 of the Land Acquisition Act individual notice under Section 9(1) of the Land Acquisition Act were served on the persons interested over their rights on the lands under acquisition to appear in person for Enquiry before passing the Award. The Enquiry under Section 11 of the Land Acquisition Act was conducted by the Land Acquisition Officer and Special Tahsildar [LA] Housing Scheme Unit 1, Coimbatore on 26.11.1999. 25. It is submitted that the notified persons for the subject dry land [S.F. No.6/2A] to an extent of 0.74.0 hectares are: “1. K. Saraswathi, W/o. Kurunthachalam; 2. Balan alias K. Vijayakumar, Minor by guardian mother Saraswathi.” It is submitted that the Petitioner is guilty of suppression of material facts and has not approached the Court with clean hands. It is submitted that the Petitioner’s statement that she has not received notices and that the entire LA proceedings has been done at the back of the Petitioner is false statement. It is submitted that the Petitioner has received the notice under Sections 9(3) & 10 on 29.10.1999, but she did not turn up for Enquiry. Therefore, the entire allegation raised by the Petitioner that she has not received any Notices and the proceedings of Land Acquisition Act has been done without her knowledge is false and the text of the Affidavit before the Hon’ble High Court is false. 26. It is submitted that the Award was passed by the proceedings of the Land Acquisition Officer and Special Tahsildar [LA], Housing Scheme, Unit-1, Coimbatore, vide Award No.2/99, dated 31.12.1999. The Compensation amount of Cheque `1,33,370 for the S.F. No.6/2A was deposited under Sections 30 & 31 of the Land Acquisition Act 1894 in Coimbatore Principal Subordinate Court bearing No.973400, dated 1.6.2000 with the acknowledgment of Principal Subordinate Court, dated 4.6.2000. The possession of the land was taken over by Special Tahsildar [Land Acquisition, which is vested with Government and handed over to the Tamil Nadu Housing Board on 16.12.2005 vide Possession Certificate evidence as per Land Acquisition Act. From the date of taken over of possession to till date, the land and its physical possession is vested with Tamil Nadu Housing Board. 27. It is submitted that the subject lands are situated at the vantage point and the exclusion of the lands will affect the Comprehensive nature of the Scheme. 28. It is submitted that the Revenue records was also stands in the name of Tamil Nadu Housing Board from the year of 2000 [Patta No.2803]. 29. It is submitted that the subject lands are dry lands, there is no Agricultural activities happened before and after the Land Acquisition proceedings. From the March in Corona days taking advantage of the period the trespass was attempted by third parties and are being prevented by the Authorities since it is an ongoing Scheme Project. From Government approved Detailed Development Plan [Master Plan of Coimbatore Local Planning Area] in the year of 1987 indicates that this land categorised as Residential Zone. Since the contentions raised about the agricultural land are not maintainable. The Land Acquisition proceedings were made as per provisions contemplated in the Land Acquisition Act. 30. It is submitted that along with the subject land and adjacent lands, the Tamil Nadu Housing Board proposed to implement Thudiyalur and Vellakiner Current Writ Cases / April 01 – 15/2021

Part 7 K. Saraswathi v. State of Tamil Nadu 759 (N. Anand Venkatesh, J.) Neighbourhood Scheme to an extent of 66.13 acres. The Scheme was announced in the floor of the Assembly on 24.3.2020. The Tender was also called for the scheme works on 26.6.2020 and Tender opened by the Superintending Engineer, Salem Circle on 26.6.2020 @ 11.15 a.m. The Scheme works like surveying, bushes cleaning and other works are going on in the site.” 7. Mr. Ar.L. Sundaresan, learned Senior Counsel assisted by Mr. G. Sankaran, learned Counsel for the Petitioners, made the following submissions:  The Petitioners are the Original Owners of the subject property and they have not received Notice at any point of time right through the proceedings. In order to substantiate the said submission, the learned Senior Counsel specifically relied upon the Award proceedings, dated 31.12.1999 and the relevant portion is extracted hereunder: “III. S.F. No.6/2A-0.74.0 Hec. Tmt. K. Saraswathi, W/o. Kurunthachalam and Balan alias K. Vijayakumar, minor by Guardian mother Saraswathi are the notified persons for the Acquisition field. Though Notice was served on the notified persons, she did not turn up for Enquiry on 26.11.99. Though the names of the notified persons find a place in the Revenue records, the possession and enjoyment of them over the Acquisition field could not be ascertained in their absence to produce documentary evidence. During Enquiry, it is decided to deposit the amount into a Civil Court for disposal. Accordingly, it is hereby ordered that the entire amount of Compensation in respect of 0.74.0 Hectares in S.F. No.6/2A is worked out below be deposited into the Civil Court under Sections 30 & 31(2) of the Land Acquisition Act.”  The Revenue records like the Patta and Adangal stood in the names of the Petitioners right through and even as late as in the month of July 2020, electricity charges were paid by the 1st Petitioner in respect of the service connection that stood in the name of the Petitioners for the subject property.  No steps were taken at any point of time to take possession and pay Compensation to the Petitioners.  There is absolutely no document to prove as to when the State had taken possession of the subject property from the Petitioners and the only document that has been filed by the Respondents pertains to a Possession Certificate issued by the Assistant Grade Revenue Inspector from the O/o. The Special Tahsildar [LA] to the Surveyor, belonging to the O/o. The Executive Engineer and Administrative Officer, Coimbatore Housing Unit, dated 16.12.2005. This document is an internal document between the Acquiring Authority and the Requisitioning Body and this does not evidence the fact regarding taking possession from the Petitioners.  A reading of the Award proceedings shows that no one was present at the time of Enquiry and the Compensation amount is said to have been deposited by way of a Cheque before the Principal Subordinate Court, Current Writ Cases / April 01 – 15/2021

760 CURRENT WRIT CASES 2021 (1) CWC Coimbatore, during the month of June 2000. This has been done even without issuing Notice under Section 12(3) of the 1894 Act and till date, there is no information from the Court as to what happened to the so-called Petition filed before the Court under the provisions of Sections 30 & 31(2) of the 1894 Act.  Admittedly, only a Cheque is said to have been forwarded along with the requisition before the Court and there is nothing to show that this amount was actually received by the Petitioners. This Petition ought to have been enclosed with ‘Form-D’, which will contain the name of the party in whose favour the Cheque was drawn and even those particulars are not available and it has not been produced before this Court. Therefore, no Compensation has been paid/tendered to the Petitioners in the manner known to law.  The Petitioners are entitled to the benefit of Section 24(2) of the Act by operation of law, since neither the possession has been taken nor the Compensation has been paid/tendered to the Petitioners.  As an alternative submission, the learned Senior Counsel submitted that Compensation in respect of the majority of the land holdings has not been deposited in the account of the beneficiaries and therefore, even if this Court is to hold that the Acquisition proceedings has not lapsed, the Petitioners will be entitled for Compensation in accordance with the 2013 Act. The learned Senior Counsel specifically relied upon the Proviso to Section 24(2) of the Act to substantiate this submission. 8. Mr. Vijay Narayan, learned Advocate General assisted by Mr. E. Manoharan, learned Special Government Pleader appearing on behalf of Respondents 1, 2 & 5/State and Dr. R. Gouri, learned Standing Counsel appearing on behalf of Respondents 2 & 4/TNHB made the following submissions:  The Government acquired nearly 370 acres of lands under the Thudiyalur - Vellakiner Neighbourhood Scheme. The possession was taken and handed over to the Requisitioning Body, viz., TNHB. The Scheme is implemented in a phased manner from the year 1995 onwards and till the year 2017, 104.753 acres have been utilised in five phases and the Plots have been alloted to the general public and shelterless persons. Even while the schemes were implemented in a phased manner, in the year 2009 itself, it was proposed to implement Phase VI to X for another extent of 129.82 acres and thereby, it was proposed to develop 1637 Plots. The Layout was also prepared and the preliminary work was also started in the year 2013-14. Since some of the Landowners had approached the Court, the Housing Board was not able to implement Phase VI to X. The Respondents identified litigation free lands to an extent of 66.13 acres and decided to proceed further with the Scheme. Current Writ Cases / April 01 – 15/2021

Part 7 K. Saraswathi v. State of Tamil Nadu 761 (N. Anand Venkatesh, J.)  The Scheme was announced in the Floor of the Assembly on 24.3.2020. The Tender was called for handing over the work on 3.6.2020 and on allotment of the work to the successful bidders, the preliminary work like surveying, clearing of bushes and other works have been taken up in the site.  The subject properties involved in the Writ Petitions was handed over to the TNHB as early as on 16.12.2005 and the Possession Certificate, evidencing the same, has been produced to substantiate this submission.  The entire Compensation amount has been deposited in the Court on 4.6.2000 since the notified persons did not turn up during Enquiry and there was no record available to prove their possession and enjoyment of the subject property.  The Petitioners have sought for a declaration, to declare that the Acquisition proceedings as lapsed by virtue of the operation of Section 24(2) of the Act and in order to take advantage of the said provision, the Petitioners will have to establish that both, the Physical possession of the property has not been taken as well as the Compensation has not been paid and that both the ingredients are not satisfied in the present case.  If at all there was any illegality in the payment of Compensation and taking of possession, the Petitioners ought to have questioned the same during the contemporaneous time and the same cannot be questioned after nearly 14 years and the very claim made by the Petitioners is stale and hit by laches.  The Petitioners cannot reopen concluded proceedings since in the present case, the Section 4-Notification and Section 6-Declaration was upheld by this Court and thereafter, the Award was passed and it was also deposited in the Court and the possession was also taken, thereby, the entire property has vested with the Government under Section 16 of the 1894 Act.  The Petitioners are also not entitled for the alternative relief claimed by them under the Proviso to Section 24(2) of the Act since the provision itself categorically states that it will apply only where the Compensation has not been deposited in respect of majority of land holdings and in the present case, there is absolutely no data provided by the Petitioners to substantiate that majority of the land holdings have not been paid Compensation.  The learned Advocate General, in order to substantiate all his submissions, heavily relied upon the Judgment of the Constitution Bench of the Hon’ble Supreme Court of India in Indore Development Authority v. Manoharlal and others, 2020 SCC Online SC 316. 9. This Court has carefully considered the submissions made on either side and the materials available on record. Current Writ Cases / April 01 – 15/2021

762 CURRENT WRIT CASES 2021 (1) CWC 10. Before going into the issues raised in this Writ Petition, it will be more beneficial to take note of the Judgment of the Constitution Bench of the Hon’ble Supreme Court of India in Indore Development Authority v. Manoharlal and others, 2020 SCC Online SC 316. The questions raised for consideration of the Constitution Bench are found at Paragraph Nos.4 & 5 of the Judgment and the same are extracted hereunder: “4 Later, in Indore Development Authority v. Shyam Verma, S.L.P. No.9798 of 2016) considered it appropriate to refer the matter to Hon’ble the Chief Justice of India to refer the issues to be resolved by a Larger Bench at the earliest. Yet again in State of Haryana v. Maharana Pratap Charitable Trust (Regd), C.A. No.4835 of 2015 referred the matter to Hon’ble the Chief Justice of India to constitute an appropriate Bench for consideration of the larger issue. These batch Appeals were referred to a Five-Judge Bench, which after hearing Counsel, framed the following questions, which arise for consideration: “1. What is the meaning of the expression ‘Paid/Tender’ in Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Act of 2013) and Section 31 of the Land Acquisition Act, LA (Act of 1894) ? Whether non-deposit of Compensation in Court under Section 31(2) of the Act of 1894 results into lapse of acquisition under Section 24(2) of the Act of 2013. What are the consequences of non-deposit in Court especially when Compensation has been tendered and refused under Section 31(1) of the Act of 1894 and Section 24(2) of the Act of 2013 ? Whether such persons after refusal can take advantage of their wrong/conduct ? 2. Whether the word ‘or’ should be read as conjunctive or disjunctive in Section 24(2) of the Act of 2013 ? 3. What is the true effect of the Proviso, does it form part of sub-section (2) or main Section 24 of the Act of 2013 ? 4. What is mode of taking possession under the Land Acquisition Act and true meaning of expression the Physical possession of the land has not been taken occurring in Section 24(2) of the Act of 2013 ? 5. Whether the period covered by an Interim Order of a Court concerning land Acquisition proceedings ought to be excluded for the purpose of applicability of Section 24(2) of the Act of 2013 ? 6. Whether Section 24 of the Act of 2013 revives barred and stale claims ? In addition, question of per incuriam and other incidental questions also to be gone into.” 5. Question Nos.1 to 3 are interconnected and concern the correct interpretation of Section 24(2) of the Act of 2013. Following questions are required to be gone into to interpret the provisions of Section 24(2) of the Act of 2013: (i) Whether the word “or” in Section 24(2) of the Act of 2013 used in between possession has not been taken or Compensation has not been paid to be read as “and” ? (ii) Whether Proviso to Section 24(2) of the Act of 2013 has to be construed as part thereof or Proviso to Section 24(1)(b) ? Current Writ Cases / April 01 – 15/2021