W.P.No.24256 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.09.2022
CORAM :
THE HON'BLE MR.MUNISHWAR NATH BHANDARI, CHIEF JUSTICE
AND
THE HON'BLE MRS.JUSTICE N.MALA
W.P.No.24256 of 2022
P.Kunju ... Petitioner
Vs
1.The District Collector,
Collectorate,
Tiruvarur District,
Tiruvarur.
2.The District Revenue Officer,
Collectorate,
Tiruvarur District.
3.The Revenue Divisional officer,
Office of the RDO,
Mannargudi.
4.The Tahsildar,
Taluk Office,
Thiruthuraipoondi,
Tiruvarur District.
____________
Page 1 of 14
https://www.mhc.tn.gov.in/judis
W.P.No.24256 of 2022
5.The Assistant Engineer,
PWD Water Resources,
Vennar Division No.II
Thiruthuraipoondi and Post,
Tiruvarur District. ... Respondents
Prayer : Petition filed under Article 226 of the Constitution of India
praying for a writ of certiorarified mandamus calling for the records
pertaining to the impugned order passed in Ka.Na.Ko.10/2021 dated
16.7.2021 by the 5th respondent and to quash the same and
consequently direct the respondents as not to do any forceful eviction
without providing any lawful alternative remedies for housing to the
petitioner.
For the Petitioner : Mr.K.M.Subramaniam
For the Respondents : Mr.J.Ravindran
Additional Advocate General
assisted by
Mr.A.Selvendran
Spl. Government Pleader
ORDER
(Order of the Court was made by the Hon'ble Chief Justice) The writ petition has been filed to challenge the notice dated 16.7.2021 issued by the fifth respondent under Section 7 of the Tamil Nadu Land Encroachment Act, 1905 [for brevity, "the Act of 1905"] directing the petitioner to remove the encroachment. ____________ Page 2 of 14 https://www.mhc.tn.gov.in/judis W.P.No.24256 of 2022
2. Learned counsel for the petitioner submitted that the notice under challenge was not served on the petitioner, rather, he got a copy of the same from an indirect source and finding a direction to remove the encroachment, a writ petition has been filed earlier. It is alleged that the survey number referred in the notice was not the subject-matter of the writ petition, being W.P.No.10392 of 2018, decided on 25.04.2018 to remove the encroachment and otherwise, the petitioner was not a party to the said litigation so as to effect compliance of the said order on him. Accordingly, the notice issued under Section 7 of the Act of 1905 is to be set aside. It is more so, when the respondents have constructed a public road and as an identify card was also issued in favour of the petitioner, thus, there is a presumption of regularization of the possession.
3. Learned counsel further submitted that the petitioner is residing in the same place for decades and accordingly, a prayer is made to set aside the impugned notice or alternatively to provide a house site elsewhere. The petitioner cannot be made remediless and houseless after 75 years of independence and the Government has ____________ Page 3 of 14 https://www.mhc.tn.gov.in/judis W.P.No.24256 of 2022 floated a scheme to rehabilitate the poor and needy persons and accordingly, to allot house site to the petitioner.
4. We have considered the submissions made by learned counsel for the petitioner and perused the records.
5. A perusal of the notice under challenge makes a reference of the survey number and it is of watercourse poramboke comprised in Survey Nos.477, 479, 480 and 481 situated at Korukkai Village, Thiruthuraipoondi Taluk of Tiruvarur District. The writ petition does not disclose that the land in question is not a waterbody. In any case, we have examined the notice in reference to the earlier order of this Court, as it is stated that the issue raised therein was not pertaining to the Survey No.477 indicated in the said writ petition and otherwise the petitioner was not a party respondent.
6. A perusal of the order of this Court in W.P.No.10392 of 2018 [Madharaman v. The District Collector, Tiruvarur District and others] decided on 25.04.2018 makes reference of Survey Nos.479, 480 and 481 and not Survey No.477. However, it does not mean that without ____________ Page 4 of 14 https://www.mhc.tn.gov.in/judis W.P.No.24256 of 2022 a direction of the Court, the respondents cannot initiate action, if somebody has made an encroachment on the waterbody other than the survey number given in the earlier writ petition in public interest. The order of this Court in paragraph 7 of the said writ petition directs for appropriate action as per the provisions of law and is quoted hereunder:
"7. Though the petitioner prays for a larger relief, this Court, in the light of the above facts and circumstances and without going into the merits of the claim projected by the petitioner directs the 2nd respondent with the help of jurisdictional Surveyor to cause inspection in Survey No.480 and 481, Sammankulam Canal, Thalaikkadu Lake and in the Canal in Survey No.479 situated in Thalaikkadu Kannanmedu Village, Thiruthuraipoondi Taluk, Tiruvarur District and depending upon the result of survey and inspection, shall take immediate and appropriate action to remove the encroachments, if any, subject to legal interdict, and the said exercise is to be carried out within a period of ten weeks thereafter and communicate the decision taken to the petitioners as well as to the private respondents."
7. It is not that action should be taken against the private ____________ Page 5 of 14 https://www.mhc.tn.gov.in/judis W.P.No.24256 of 2022 respondents therein, but against those who have caused encroachments and furthermore, the direction therein is not in reference to any survey number. Therefore, we do not find a necessity of the petitioner to be a party to the litigation earlier filed and even otherwise the respondents are not precluded to remove the encroachments in a waterbody on their own, but have to wait for an order of the court.
8. Learned counsel for the petitioner was asked as to whether any reply to the notice has been given because a period of more than one year has already lapsed and, according to him, he has not been dispossessed. We do not find any reply to the notice and even any document to show the right to possess the land. It cannot be for the reason that the respondents have constructed a road and if it is on the waterbody, it needs to be removed in the light of the judgment of this Court in the case of K.K.Ramesh v. The State of Tamil Nadu, represented by its Principle Secretary to the Chief Minister, Chief Minister's Office, Secretariat, Chennai-9 and others [W.P.(MD) No.22163 of 2018, decided on 27.01.2022]. ____________ Page 6 of 14 https://www.mhc.tn.gov.in/judis W.P.No.24256 of 2022
9. At this juncture, we would be referring the decision of the Apex Court in the case of Joginder v. State of Haryana, (2021) 3 SCC 300, wherein it has been emphatically held as under:
"13. It is required to be noted that the persons in illegal occupation of the Government Land/Panchayat Land cannot, as a matter of right, claim regularization. Regularization of the illegal occupation of the Government Land/Panchayat Land can only be as per the policy of the State Government and the conditions stipulated in the Rules. If it is found that the conditions stipulated for regularisation have not been fulfilled, such persons in illegal occupation of the Government Land/Panchayat Land are not entitled to regularization. .....
14. At this stage, the decision of this Court in the case of Jagpal Singh v. State of Punjab, (2011) 11 SCC 396, is required to be referred to. In the said decision, this Court had come down heavily upon such trespassers who have illegally encroached upon on the Gram Sabha/Gram Panchayat Land by using muscle powers/money powers and in collusion with ____________ Page 7 of 14 https://www.mhc.tn.gov.in/judis W.P.No.24256 of 2022 the officials and even with the Gram Panchayat. In the said decision, this Court has observed that "such kind of blatant illegalities must not be condoned". It is further observed that "even if there is a construction the same is required to be removed and the possession of the land must be handed back to the Gram Panchayat". It is further observed that "regularizing such illegalities must not be permitted because it is Gram Sabha land which must be kept for the common use of the villagers of the village". Thereafter, this Court has issued the following directions:
'23. Before parting with this case, we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthorized occupants of Gram Sabha/Gram Panchayat/ Poramboke/ Shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/ Union Territories in India are directed to do the needful, taking the help of other ____________ Page 8 of 14 https://www.mhc.tn.gov.in/judis W.P.No.24256 of 2022 senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession.
Regularization should only be permitted in exceptional cases e.g. where lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land.' In view of the above also, the prayer of the Petitioners for regularization of their illegal occupation of the panchayat land cannot be accepted."
[emphasis supplied] ____________ Page 9 of 14 https://www.mhc.tn.gov.in/judis W.P.No.24256 of 2022
10. The decision in Joginder v. State of Haryana, supra, reiterated the view enunciated in Jagpal Singh v. State of Punjab, (2011) 11 SCC 396. In terms of the directions contained in the case of Jagpal Singh v. State of Punjab, supra, it is the bounden duty of the State Government concerned to ensure restoration of such lands for the common use of villagers of the village concerned. The State Government is obligated to make earnest efforts to restore every piece of illegally occupied land which would fall within the orders and directions issued in the case of Jagpal Singh v. State of Punjab, supra.
11. The mushrooming of encroachment in the waterbody is affecting the environment. It is the bounden-duty of the officials to preserve and protect Government lands which have been reserved for specific purposes. It is trite that when a person is a rank encroacher without any valid right or title over the land belonging to the Government, the Court should not permit or protect the continued illegal occupation of the land. ____________ Page 10 of 14 https://www.mhc.tn.gov.in/judis W.P.No.24256 of 2022
12. In the light of the judgments aforesaid, the respondents have rightly taken action against the petitioner and the petitioner has failed to show any title document to prove the right of possession. The identity card would not confer title over the land and, at the same time, the petitioner has failed to show the provision of law to make him entitled to seek an alternate land in the place of the encroached land. If any policy of the Government exists, this Court is not endorsing the same, as it encourages the mushrooming of the encroachments and otherwise encroachment is made invariably on account of the inaction of the officers.
13. At this stage, we may say that the notice under Section 7 of the Act of 1905 should have been taken as a show cause notice, followed by a notice under Section 6 of the Act of 1905, but the petitioner has failed to send reply to the notice.
14. For all the reasons given above and in view of the fact that despite an opportunity of hearing given to the petitioner to establish his right to possess the land, no document has been ____________ Page 11 of 14 https://www.mhc.tn.gov.in/judis W.P.No.24256 of 2022 referred to prove the title or right of possession on the land in question, we find no merit in the writ petition to cause interference in the impugned notice. Accordingly, the writ petition fails and it is dismissed. There will be no order as to costs. Consequently, W.M.P.Nos.23241 and 23246 of 2022 are closed.
(M.N.B., CJ.) (N.M., J.)
07.09.2022
Index : Yes/No
bbr
____________
Page 12 of 14
https://www.mhc.tn.gov.in/judis W.P.No.24256 of 2022 To:
1.The District Collector, Collectorate, Tiruvarur District, Tiruvarur.
2.The District Revenue Officer, Collectorate, Tiruvarur District.
3.The Revenue Divisional officer, Office of the RDO, Mannargudi.
4.The Tahsildar, Taluk Office, Thiruthuraipoondi, Tiruvarur District.
5.The Assistant Engineer, PWD Water Resources, Vennar Division No.II Thiruthuraipoondi and Post, Tiruvarur District.
____________ Page 13 of 14 https://www.mhc.tn.gov.in/judis W.P.No.24256 of 2022 THE HON'BLE CHIEF JUSTICE AND N.MALA,J.
bbr W.P.No.24256 of 2022 07.09.2022 ____________ Page 14 of 14 https://www.mhc.tn.gov.in/judis