The Supreme Court lashed out at the ADMK regime in Tamil Nadu on Nov.29 for the government’s decision to sack about 13,000 Makkal Nala Paniyalargal (MNPs), observing that there should be ‘some rule of law in the State.’ It said the decision reflected badly on the rule of law in the State. A Bench of Justice D.K.Jain and Justice Anil Dave, hearing a special leave petition against the interim order of the Madras High Court directing re-instatement of the MNPs, asked the State Additional Advocate General Guru Krishna Kumar, “What is happening in your State?” SC said the workers remained in job for full five years after their appointment by the previous regime, but the ADMK government removed them soon after assuming office.
“How can you justify such an action when it involved appointment and removal of such large number of contract workers” the top court asked. Justice Jain told the ASG, “Every five years you (State) appoint them. Thereafter, you remove them, again appoint them. Is there not a rule of law, there must be some rule of law in the State.
These candid observations of the Apex court imply that whether it is ADMK or the DMK that rule the State, the State government remains the same and the decisions taken during the previous rule shall be binding on the succeeding regime and shall not be changed unless patently unlawful, in which case it would have been challenged and struck down by the courts then and there. But Jayalalitha whimsically reverses everything constructively done during the previous DMK rule, resulting in not only drain the public money but also causing annoyance and distress to the people, who elected her to power.
So, the Hon’ble Judges of the Supreme Court need have no doubt. Undoubtedly, there is no rule of law in Tamil Nadu, under Jayalalitha’s dispensation.
For the State, law is not just books of rules and codes, but the letter and spirit of the law is paramount guideline. There is a saying in Tamil, ‘ahid tU« Ënd, kânahir tU« K‹nd’ which means, ‘The elephant will arrive later, but the ringing sound of the bell tied around its neck will resonate in advance.’ So also even before Jayalalitha assumed office, the administration went astray. When the meticulously planned and designed New Secretariat complex was inaugurated in March 2010, even while everyone was hailing of as an architectural marvel, Jayalalitha ridiculed the buildings ‘looking like circus tents’ and her cohorts were declaring that she would assume power in Fort St. George. But this was neither made a part of their election manifesto nor a point of her campaign, lest her alliance parties and the people would not have agreed.
But even as the poll results were trickling in on May 13, 2011 and the ADMK poised to secure majority, the New Secretariat/ Assembly, functioning for more than a year, was shifted overnight to Fort St. George, vacating the Classical Tamil Library that was functioning there. Jayalalitha and her ministers were sworn-in only on May 16 and the Cabinet meeting was also held at Fort St. George. Till date, the government has not clarified as to who and with what authority ordered the shifting of the Secretariat, the seat of power.
It was Jayalalitha, who during her previous tenure announced on 23 April 2003 in the Assembly, that her government had decided to shift the Secretariat from Fort St. George, ‘as it was not safe and unfit for human habitation.’ But the alternative site she proposed was turned down by the High Court. Thereafter she chose another site in Adyar and performed Bhoomi Pooja shrouded in secret, but could not and did not proceed further due to stiff resistance by the residents of the area.
In the spirit of continuity of the government in spite of change of rule, as pointed out by the Supreme Court now, Kalaignar honoured Jayalalitha’s announcement of shifting the Secretariat from Fort St. George and constructed in the Government Estate on Anna Salai, which could not face any opposition.
Now Jayalalitha has gone against her own announcement and has returned to Fort St. George, which she said was ‘unfit for human habitation’. She and her ministers can call themselves anyway as they please, but certainly government officials and employees and people who visit are human beings.
In order to justify the colossal wastage of people’s money to the tune of over Rs.1,000 crore, Jayalalitha alleged irregularities in the construction of the New Secretariat and ‘deficiency in standards of construction’ and appointed a Commission of Inquiry. Then she announced that the New Secretariat complex would be converted in a multispeciality hospital and sent a team of doctors to study such hospitals in other parts of the country.
When it is alleged that there is ‘deficiency in standards of construction’ and it has been set a term of reference for the Inquiry Commission, people would ask ‘how a hospital be located in such a deficient building, risking the lives of patients and medical staff !? Another question is, if there are only irregularities in construction and deficiency in standards of construction,’ why not use the complex for the purpose it was built after rectifying the deficiencies and complete construction of other blocs so as to accommodate all departments.
If only there is Rule of law in the State, will all these outrageous actions of an individual springing from her personal ego and whims, be allowed to take the State and its people for a ride?
The very first decision of the Cabinet meeting of the ADMK regime was to put on hold Samacheer Kalvi scheme introduced by the previous DMK rule intended to abolish four streams of school education and replace with one uniform and equitable syllabus and pattern of school education, after months of thorough study, discussions and consultations with educationists and academics by an expert committee headed by a retired Vice-Chancellor of a university. It was not introduced in a hasty and haphazardous manner, but introduced in the first and sixth standard in the academic year 2010-11 and for the rest of the classes from the current academic year. Text books for the new syllabus were also prepared, printed and kept ready for distribution. Private matriculation schools, which were aggrieved over loss of their commercial exploitation of education, moved upto the Supreme Court to stall Samacheer Kalvi but it was upheld by the courts.
Hence the question arised as to why Jayalalitha, immediately after assuming office should resort to this action, even without any review of the system. Inasmuch as the move was beneficial only to the aggrieved private school sharks, it was believed that the move was in return for pre-election ‘consideration’. Naturally aggrieved parents of over 1.25 school-going children, and educationists protested and knocked the doors of judiciary. Throughout the State students agitated. Unmoved and adamant the ADMK regime brought an amendment Act to postpone implementation of the system. It was challenged in the Madras High Court. While delivering the verdict, Justices S. Rajeswaran and Tmt. K.P.K. Vasuki said, “The intention of Samacheer Kalvi is clear. A study team consisting of best experts studied in detail and recommended implementation of Samacheer Kalvi. The recommendations of the committee cannot be easily ignored. Besides, while already incurring huge expenditure, is it necessary to further expend more? The Advocate General should give proper counsels to the government.”
When the Tamil Nadu government went on further appeal to the Supreme Court against the judgement of the Madras High Court, Justices P.S.Chowhan and Swanthira Kumar in their order said, “Samacheer Kalvi brought for classes one and six last year should be continued to be implemented. If it is stopped in between there will be confusion. Samacheer Kalvi should also be implemented this year itself for classes 2 to 5 and 7 to 10. If there were any shortcomings in that syllabi, a committee of experts could be set up and that committee to file its report within two weeks to the Madras High Court. Considering importance of this case the High Court should hear it on day-to-day basis and deliver judgement within a week.”
According to this order ADMK government set up a committee of educationists. It was widely held that only those who were opposed Samacheer Kalvi found place in that committee. Without bothering all those things, the rulers prepared a report through that committee itself and filed that report in the High Court. The Chief Justice and another judge of the Madras High Court in their order explained in detail about the report of the committee and said, “We have no hesitation to hold that the State has exceeded in its powers in bringing the Amending Act to postpone an enactment which has already come into force. Text books required for other classes besides classes one and six had already been printed and considerable amount of work have been completed. They have also been uploaded on the website. At this stage bringing amendment to the Samacheer Kalvi Act, would affect the interests of students. Hence the amendment brought by Tamil Nadu government amending that Act is not valid. We hold them null and void. The text books for Samacheer Kalvi should be immediately distributed to the students. Hence in the interest of future of the students and the interest of the country we hope the State government would immediately take action to implement Samacheer Kalvi.”
Even after this, without respecting the High Court order and ignoring the request of the all parties in Tamil Nadu persuading the Tamil Nadu government not to go on further appeal to the Supreme Court and implement the order of the High Court, the Tamil Nadu government went to the Supreme Court.
The Supreme Court in its interim report refused to give interim stay to the Madras High Court order and told the government to distribute Samacheer Kalvi text books before August 2. Even after five days of this order, the Tamil Nadu government did not start the work of distributing text books to students. Instead the counsel for Tamil Nadu government told the Supreme Court that there was no possibility for implementing Samacheer Kalvi during this year itself; it was very clear that the Tamil Nadu government was not at all bothered about the condition of the students of Tamil Nadu. Even after 2 months of reopening of schools the students were not aware of the text books that they were going to study during this year and the parents also were agonized. As the Tamil Nadu government, unbothered about all these and not respecting the orders of the courts and not heeding to the opinions of all party leaders, was adamantly sticking on its stand.
Ultimately, the Supreme Court on Aug. 9 directed the Tamil Nadu government to implement Samacheer Kalvi for classes 2 to 5 and 7 to 10 in ten days.
A three-Judge Bench of Justice J.M. Panchal, Justice Deepak Misra and Justice B.S. Chauhan dismissed a batch of appeals filed by the Tamil Nadu government and on behalf of association of matriculation schools in support of the State challenging the Madras High Court judgment.
The Bench upheld the High Court's decision declaring unconstitutional the amendment made to the Tamil Nadu Uniform System of School Education Act to defer implementation of the USSE and gave 25 reasons why the impugned judgment should be sustained. The judgement said:
“Students can not be put to so much strain and stress unnecessarily. The entire exercise by the Government is therefore arbitrary, discriminatory and oppressive to students, teachers and parents.
The State Government should have acted bearing in mind that “destiny of a nation rests with its youths”. Personality of a child is developed at the time of basic education during his formative years of life. Their career should not be left in dolorific conditions with uncertainty to such a great extent. The younger generation has to compete in global market. Education is not a consumer service nor the educational institution can be equated with shops, therefore, “there are statutory prohibitions for establishing and administering educational institution without prior permission or approval by the authority concerned…
Thus, the State Government could by no means be justified in amending the provisions of Section 3 of the Act 2010, particularly in such uncertain terms. Undertaking given by the learned Advocate General to the High Court that the Act 2010 would be implemented in the academic year 2012-13, cannot be a good reason to hold the Act 2011 valid.
Submissions advanced on behalf of the government that it is within the exclusive domain of the legislature to fix the date of commencement of an Act, and court has no competence to interfere in such a matter, is totally misconceived for the reason that the legislature in its wisdom had fixed the dates of commencement of the Act though in a phased manner. The Act commenced into force accordingly. The courts intervened in the matter in peculiar circumstances and passed certain orders in this regard also. The legislature could not wash off the effect of those judgments at all….
As explained hereinabove, the Amendment Act 2011, to the extent it applies to enforcement of Act 2010, nullified the judgment of the High Court dated 30.4.2010 duly approved by this Court vide order dated 10.9.2010. Thus, we concur with the conclusion reached by the High Court in this regard.
To summarise our conclusions:
(i) The Act 2010 was enacted to enforce the uniform education system in the State of Tamil Nadu in order to impart quality education to all children, without any discrimination on the ground of their economic, social or cultural background.
(ii) The Act itself provided for its commencement giving the academic years though, in phased programme i.e. for Standards I to VI from the academic year 2010-2011; and for other Standards from academic year 2011-2012, thus, enforcement was not dependent on any further notification.
(iii) The validity of the Act was challenged by various persons/ institutions and societies, parents of the students, but mainly by private schools organisations, opposing the common education system in the entire State. The writ petitions were dismissed upholding the validity of the Act. The said judgment of the High Court was duly approved by a speaking order of this Court dated 10.9.2010. Certain directions had been given in the said judgment by the High Court which could have been complied with by issuing executive directions. Moreover, directions issued by the High Court could be complied with even by changing the Schedule as provided in the judgment dated 30.4.2010 itself.
(iv) Section 18 of the Act 2010 itself enabled the Government to issue any executive direction to remove any difficulty to enforce the statutory provisions of the Act 2010. The Act 2010 itself provided for an adequate residuary power with the government to remove any difficulty in enforcement of the Act 2010, by issuing an administrative order.
(v) Justification pleaded by the State that Amendment Act 2011 was brought to avoid contempt proceedings as the directions issued by the High Court could not be complied with, is totally a misconceived idea and not worth acceptance.
(vi) The new government took over on 16.5.2011 and immediately thereafter, the Government received representations from various private schools/organizations on 17th/18th May, 2011 to scrap the uniform education system. As most of these representations were made by the societies/organisations who had earlier challenged the validity of the Act 2010 and met their waterloo in the hierarchy of the courts, such representations were, in fact, not even maintainable and, thus could not have been entertained by the Government.
(vii) Before the first Cabinet meeting of the new Government on 22.5.2011, i.e. on 21.5.2011, tenders were invited to publish the books under the old education system. It shows that there had been a pre- determined political decision to scrap the Act 2010. The Cabinet on 22.5.2011 had taken a decision to do away with the Act 2010 and brought the Ordinance for that purpose.
(viii) There was no material before the Government on the basis of which, the decision not to implement the Act 2010 could be taken as admittedly the Expert Committee had not done any exercise of reviewing the syllabus and textbooks till then.
(ix) The validity of the said decision was challenged by parents and teachers and various other organisations before the High Court and interim orders were passed. It was at that stage that the Bill was introduced in the House on 7.6.2011 and the Amendment Act was passed and enforced with retrospective effect i.e. from 22.5.2011, the date of the decision of the Cabinet in this regard.
(x) The interim orders passed by the High Court were challenged before this Court and the appeals were disposed of by this court vide judgment and order dated 14.6.2011, issuing large number of directions including constitution of the Expert Committee which would find out ways and means to enforce the common education system.
(xi) The Secretary of School Education Department had filed affidavits before the High Court as well as before this Court pointing out that the Amendment Act 2011 was necessary in view of the fact that the Act 2010 was illegal and unconstitutional. However, the Secretary of School Education Department was inadvertently made a member of the Expert Committee by this Court. Though her inclusion in the Committee was totally unwarranted particularly in view of her stand taken before the High Court that the Act 2010 was unconstitutional and illegal.
(xii) The Secretary, to the Govt. of Tamil Nadu School Education Department, who had been entrusted the responsibility to plead on behalf of the State, herself had approved the textbooks and fixed the prices for those books of Standards VIIIth, IXth and Xth vide G.O. dated 9.5.2011.
(xiii) The members of the Expert Committee did not reject the text books and syllabus in toto, however, pointed out certain discrepancies therein and asked for rectification/improvements of the same.
(xiv) The High Court as well as this Court upheld the validity of the Act 2010. Thus, it was not permissible for the legislature to annul the effect of the said judgments by the Amendment Act 2011, particularly so far as the Ist and VIth Standards are concerned. The list of approved textbooks had been published and made known to all concerned. Thus, the Act 2010 stood completely implemented so far these Standards were concerned.
(xv) The Statement of Objects and Reasons of the Act 2011 clearly stipulated that legislature intended to find out a better system of school education. Thus, the object has been to repeal the Act 2010.
(xvi) The legislature is competent to enact the revalidation Act under certain circumstances, where the statutory provisions are struck down by the court, fundamentally altering the conditions on which such a decision is based, but the legislature cannot enact, as has been enacted herein, an invalidation Act, rendering a statute nugatory.
(xvii) The School Education Department of Tamil Nadu on 24.2.2011 called for private publishers to come out with the textbooks based on common education system, and submit for clearance by the Department by 5.4.2011, as taken note of by the High Court in its order dated 10.6.2011. Thus, in such a fact-situation, it was not permissible for the State to revert back to the old system at this advanced stage.
(xviii) Most of the other directions given by the High Court on 30.4.2010, stood complied with. The DTERT had been appointed as Academic Authority as required under Section 29 of the Act 2009, vide G.O. dated 27.7.2010.
(xix) The material produced by the respondents before this Court reveal that norms had been made known and the NCF 2005 was also implemented by issuing Tamil Nadu Curriculum 2009.
(xx) The issue of repugnancy of the Act 2010 with the Act 2009 merely remains an academic issue as most of the discrepancies stood removed. Even if something remains to be done, it can be cured even now, however, such a minor issue could not be a good ground for putting the Act 2010 under suspended animation for an indefinite period on uncertain terms.
(xxi) Such objectionable material, if any, could be deleted, rather than putting the operation of the Act 2010 in abeyance for indefinite period.
(xxii) As early as in April 2011, textbooks for Xth Standard were posted in the official website of School Education Department and many students downloaded the same and started study of the same as the students, parents and teachers had been under the impression that for Standards II to V and VII to X, common education system would definitely be implemented from academic year 2011-12. Such pious hope of so many stakeholders could not be betrayed. Rolling back the Act 2010 at this belated stage and withdrawal thereof even for Standard I and VI would be unjust, iniquitous and unfair to all concerned.
(xxiii) The Amendment Act 2011, in fact, has the effect of bringing back the effect of Section 14 of the Act 2010 which had been declared ultra vires by the High Court for the reason that the Board could not be given binding directions by the State Government.
(xxiv) Even if a very few schools could not exercise their choice of multiple text books, it could not be a ground of scrapping the Act 2010. Steps should have been taken to remove the discrepancy.
(xxv) Passing the Act 2011, amounts to nullify the effect of the High Court and this Court‟s judgments and such an act simply tantamounts to subversive of law.
In view of the above, the appeals are devoid of any merit. Facts and circumstances of the case do not present special features warranting any interference by this Court.
The appeals are accordingly dismissed. The appellants are directed to enforce the High Court judgment impugned herein within a period of 10 days from today.”
This ‘certificate’ issued by the Supreme Court to the ADMK regime is enough of a proof for the actions taken by Jayalalitha being “tantamount to subversive of law” and borne out of “political malice.”
Such subversion of law for political vengeance is the spectacle of land grabbing cases foisted on DMK functionaries and former Ministers. As both the setting up of a special cell of police to deal with land grabbing complaints and special courts have been challenged in the Madras High Court, pleas admitted and cases are pending, it is a matter subjudice. However, the points raised by the petitioners in their affidavits for consideration of court are as under:
“Anti Land Grabbing Special Cells are established with one each cell at State police headquarters, 7 commissionerates in 28 Districts are established except that of Karur, Tiruvannamalai and Nagapattinam Districts are going to settle the civil disputes relating to land, title, rent control dispute, Vendor — Vendee dispute etc thereby upsetting and superseding all Laws and monopolizing power with the Police. This tends to exploit by the disgruntled Landlord, owners, vendors etc to move the police stations instead of the court and present a complaint and get an FIR registered and under the threat of arrest and imprisonment, the matter could be solved. It will be counterproductive and have a disastrous consequences leading making all civil courts and rent control courts ineffective.
The special cells constituted under the GO Ms.423 Home (Pol.XI) Department, takes away individuals rights and liberty not in a manner established by law and hence violative of Article 21. Civil complaints can now be converted as criminal complaints and the police is vested with powers to pick and choose the complaints and act arbitrarily and try the cases as ‘land grabbing cases.’
The G.O. however does not spell out any definition to the word land grabbing nor it set out any acts as Land Grabbing offences. Thus the GO is vague and without any clarity and can be used against General public even for civil disputes. The GO does not setout any guidelines to investigate such complaints. The result is that title dispute, landlord tenant matter, tenant —subtenant dispute, Mortgage dispute, matter relating to agreement, sale purchase concerning land, will, usufructory mortgage, adverse possession, etc are entertained.
25 special courts are constituted; i.e. 2 in Chennai city and 23 courts in various other districts. When more than 390 odd offences are available under the Indian Penal Code which endangers the society, human body, religion, public health, safety,moraity, public justice and intellectual rights, there is no reasonable classification in such land grabbing cases alone to be tried by a special court.
There is no reason as to why when there are major crime against the society like kidnapping, extortion etc are treated as an ordinary crime and allowed to rest peacefully in police stations endlessly and also lie in court dockets years together in regular courts, the land owners being an affluent people get differential treatment against the alleged offences involving their properties in a lightning speed. Thus this impugned GO tends to give a differential treatment tends to classify the person involved relating to alleged "land grabbing" cases when they are not a class by themselves. There is no rationale behind such reasonable classification and has no nexus to the object sought to be achieved. The special treatment given to these type of cases is violative of Article 14.
The present party in power, after winning the elections which was declared on 13.05.2011 and after assuming the office, both, the Governor of Tamilnadu and the Chief Minister, on the floor of the Assembly indicated that “Land grabbing and extortion were common problems during the previous regime. Many were wrongfully dispossessed of their immovable properties through force and intimidation. The Government has decided to take appropriate action and restore such properties to their rightful owners by enacting a New Law soon.”
"On the basis of the speech given by the Chief Minister, the Home Secretary ordered for formation of 36 Anti land Grabbing Special Cells with 410 police personnel to deal with land grabbing cases at the cost of Rs.20,02,08,842/—. established in 7 major cities and 29 other Districts.
The Home Secretary has thoroughly misunderstood the object behind Section 11(1) and Section 16(l) of Cr.P.C. and has constituted the Special Courts which is violative of Article 14 of Constitution of India. In this regard, useful reference to Section 11 and 16(l) of Cr.P.C. could be made.
Art 14 is designed to protect all persons placed in similar circumstances against legislative discrimination. However by way of executive instructions the discrimination is sought to be done and thus infringe on the equality principle. "Land grabbing cases" cannot be a defined class and no differential treatment could be given.
Framers of Criminal Procedure Code were also alive to the desirability of having a speedy trial in certain classes of cases and with this end in view they made four different sets of provisions for the trial of four classes of cases, those being provisions relating to summary trial, trial of summons cases, trial of warrant cases and trial of cases triable by a court of session. The classification of the offence for the purpose of applying these different sets of provisions was according to the gravity of the offences though in classifying the offence fit for summary trial the experience and power of trying Magistrate was also taken into consideration. The net result of these provisions is that offences which are summarily triable can be more speedily tried than summons cases, summons cases can be more speedily tried than warrant cases, and warrant cases can be more speedily tried than sessions cases. The framers of the code appear to have been generally of the view that the graver the offence the more elaborate should be the procedure for its trial, which was undoubtedly as understandable and reasonable.
The GO also creates a division and creates two sets of persons among a particular group or category of offences other than classified by Cr. P.C. itself; offences triable by Special court which may try in a jet speed and ordinary regular courts the one laid down in the code; this may lead to anomalous results; •offence in same category may be tried according to the procedure laid down in the Code in regular courts while another offence of same category is tried in special court; offences leading to Land grabbing cases may be tried in Special court even though belonging to a particular group or category of offences whereas other offences belonging to the same group or category may be tried under the code in the regular criminal courts. This prejudices the defence of the accused and violative of Article 21. Art 14 assures equality of right and in the administration of justice and assures everyone the same rules of evidence and modes of procedure must exist for all in similar circumstances.
There is no special Act relating to an alleged offence called ‘land grabbing’. When there is no special enactment trying- for any defined offence, constitution of a Special Court by picking and choosing the cases and referring to Special Court terming them as land grabbing cases by State Government is highly arbitrary whimsical and capricious.
Any action of the Government should stand the judicial scrutiny within the touchstone of Constitutional provisions and further if such action is found to be irrational, illegal, unreasonable or violative of constitutional provisions such action is liable to be struck down. Therefore, in as much as the impugned G.O. discriminate the similar group of offences compared to other offence of same group giving much importance and draining the entire tax payers money and government exchequer by constituting Anti Land grabbing cells and 25 Special courts, for trying offenders under a particular regime i.e., 2006-201 is highly discriminatory unconstitutional vindictive exercise of power. Thus G.O. tends to have separate ‘class of cases’ among the ‘class of cases’ period wise.
The whole exercise undertaken by the Government for establishment of 25 Special Courts for conducting trial of ‘land grabbing cases’ is whimsical, irrational and appears to be vindictive exercise of power. Neither under the Indian Penal Code nor under any of the Criminal Acts there is an offence called ‘land grabbing’ offence. Any offence which is not defined under any Act cannot be tried by any Court.
The move tends to encroach and usurp the powers conferred on the Civil Courts and Rent Control Courts and vesting the-power on the Police Authorities to try any type of Civil related cases relating to land, such move is also violative of Article 50 of the Constitution of India.
By an executive order, the Government cannot legislate a new offence when complete, enactment called Indian Penal Code is legislated by the Parliament. Thus, by way of executive instructions, a new offence called “land grabbing" cannot be created and tried by any Police Authority or by the Courts. It is submitted that the executive power of the State extend to the matters with respect to which the State has got power to make laws. When there is already a Central Act which has occupied the field, the Government by way of executive power cannot make any new laws.
Arbitrariness and abuse of power is the antithesis of the Rule of Law and therefore ultra vires.
The reasons for formation of Special Courts is not set out in the GOs. However, there is a reference to speech of the Governor and Chief Minister. In the G.O. and in the said speech there is a reference to a period of cases to be tried namely ‘previous regime’; Further, in the Police Policy note released by the Government of Tamil Nadu, on Demand No.22, for the year 2011-12, there is a reference for constitution of Anti—land grabbing Special Cells in Tamilnadu. Para 12 of the aforesaid Policy Note reads as follows:-
"During 2006-2011, there were a large number of cases of land grabbing and forcible sales in the State. Though complaints were made to the Police in the last 5 years no action was taken by the police. As the number of complaints increased manifold since the assumption of the Government, I ordered the formation of special cells to investigate such cases.”
Therefore, the police policy note coupled with the Governor’s address and Chief Minister’s speech and G.O. incorporating the period of investigating the cases indicates that the period of investigation of, offences is from 2006-2011 and therefore the G.O. suffers from discrimination and hence liable to be set aside on the sole ground. There is a discrimination between cases prior to 2006 and after 2011 which will not be treated as Land grabbing cases and therefore hit under Art 14 of constitution of India. The impugned order has to stand and fall on its own amount of interpretation or concession or explanation offered in court will not improve the GO or exempt from the guns of Constitution of India.
Since the reference of the ‘previous regime’ is explicit the G.O. is an arbitrary exercise of power to settle the political scores namely the political opponent. Therefore the G.O. is a vindictive exercise of power. Further colourable exercise of power is explicit on the GO if the viel of the GO is lifted and seen. The theory of lifting the veil applies even to an Executive order and if such decision of executive is mala fide and vindictive, the same has to be struck down. This is obvious due to the period of trying the offences committed from ‘2006 to 2011’ which is qualified as ‘previous regime" in the GO and policy note and speech of Chief Minister and the Governor.
The scope of criminal court to deal with right and title of a person over an immovable property is well settled. Therefore the object to restore properties to the rightful owners’ is unavailable to criminal courts when such power of deciding title and ownership of a property and put the rightful persons in possession in absence of specific powers to criminal courts the Judicial Magistrate or the sessions court. When such power is conspicuously absent there is no reason or rhyme in establishment of land—grabbing courts to restore properties to the rightful owners.
It is trite in law that findings of criminal court or judgment is not binding on the civil courts and therefore the rightful land owners has to necessarily pass again through the route of civil. courts for obtaining lawful possession and therefore the GO never achieves any alleged object to “redress the affected quickly.”
As long as law permits and recognizes the title through "adverse possession" and creates right in favour of a rank trespasser for his continuous possession and hostile against the owner for a period of years, the executive may classify the cases as also “land grabbing" and it can run counter to a lawfully recognized title by Law of Limitation and under Transfer of Property Act.”
The rulers of Tamil Nadu derive peculiar pleasure in arresting former Ministers and DMK functionaries on the basis of complaints manufactured, only then the police file FIR, and get them remanded to custody. They file cases under not one or two sections of the IPC but under as many as possible, so that the arrested do not get bail. If they manage to get bail through High Court, on the very same day another case is foisted to scuttle their release and retain their detention in prisons. On some of them the draconian Goondas Act is invoked. Known as Goondas Act, The Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Slum-grabbers and Video Pirates Act (Tamil Nadu Act 14 of 1982) Section 2 (4) states “Goonda means a person, who either by himself or as a member of or leader of a gang habitually commits, or attempts to commit or abets the commission of offence, punishable under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code.” The ADMK regime has no qualms in invoking such a notorious Act against respectable public functionaries and even against a sitting legislator. The High Court had quashed Goondas Act detentions of nearly 10 DMK workers. The frenzy with cases are filed to get DMK functionaries arrested can be seen in the case of Tiruvarur District DMK Secretary Poondi Kalaivanan. When he was accompanying DMK Treasurer Thalapathi M.K.Stalin in a car from Tiruvarur to Tiruthuraipoondi on July 29, police took him into custody on a charge of preventing students from attending schools, remanded and lodged him in Palayamkottai prison. Subsequently another case was foisted on a complaint by an ADMK man that his shop in Tiruthuraipoondi bus stand was attacked and ransacked by Kalaivanan at a time when actually he was under police custody in Tiruvarur. When he was about to get bail they invoked Goondas Act and retained him in prison. When the HC quashed Goondas Act detention he was again arrested in yet another case and still he is languishing in prison. Where is rule of law in all these atrocities?
The list of Jaya regime’s adventurous foray into the terrain of law and judiciary goes further more like the move to convert Anna Centenary Library into a paediatric Super Speciality hospital, handing over possession of prime land worth over Rs.200 cr. in Chennai taken over by the previous rule from unauthorized occupation to the same person, take back the land allotted by the DMK rule to a cultural organization in Chennai city.
In these six months since Jayalalitha assumed power, Tamil Nadu has become a wanderland drifting from rule of law and order and struggling only to be brought to order now and then at the intervention of the judiciary. In short, courts from the lowest to the apex level, are over-loaded with work. Usually, the Central government, for reasons political or otherwise, asks through Governors of States whether rule of law prevailed in their respective State. This may be the first time in the history of independent India, that the Supreme Court inquired a State whether there is rule of law there. Jayalalitha has brought such a disgrace to Tamil Nadu – like a garland of flowers entangled in the hands of a monkey!
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