Madras High Court
Udhayakumari vs District Collector on 23 February, 2021
WP.Nos.2620, 2622, 2626 & 2630/2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 23.02.2021
CORAM
THE HONOURABLE MR. JUSTICE M.SATHYANARAYANAN
AND
THE HONOURABLE MR. JUSTICE A.A.NAKKIRAN
WP.Nos.2620, 2622, 2626 & 2630/2021 & WMP.Nos.2943, 2945, 2948
& 2951/2021
Udhayakumari .. Petitioner
in WP.No.2620/2021
Mathurambai .. Petitioner
in WP.No.2622/2021
B.Indira .. Petitioner in
WP.No.2626/2021
Katharmydeen .. Petitioner
in WP.No.2630/2021
Versus
1.District Collector
Collector Office Road
Moonvedar Nagar
Villupuram 605 602.
2.The Commissioner
Tindivanam Municipality
Hospital Road,
Tindivanam-604 001.
https://www.mhc.tn.gov.in/judis/
1
WP.Nos.2620, 2622, 2626 & 2630/2021
3.Tahsildar
Taluk Office, Tindivanam East
Tindivanam 604 001. .. Respondents
in all Writ Petitions
Common Prayer:- Writ petitions filed under Article 226 of the
Constitution of India praying for issuance of writ of certiorarified
mandamus calling for the records of the 2nd respondent made in
Na.Ka.No.3473/2020/F1 dated 14.12.2020 and quash the same as illegal,
arbitrary and non-est in law and consequently forbear the respondents
from interfering with the petitioners' peaceful possession of the
properties comprised in S.No.25/8, TS.No.3, Avaraipakkam Village,
Ward C, Block No.1, Tindivanam Municipality.
For Petitioners in
all Petitions : Mr.B.Vijay
For R1& R3 in
all Writ Petitions : Mr.S.Kamalesh Kannan
Government Advocate
For R2 in all
Writ Petitions : Mr.P.Srinivas
Standing counsel
COMMON ORDER
[Order of the Court was made by M.SATHYANARAYANAN, J.
through Physical Hearing]
(1)By consent, all the writ petitions are taken up together and are
disposed of by this common order, since the issue to be adjudicated
and decided is one and the same.
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WP.Nos.2620, 2622, 2626 & 2630/2021
(2)Mr.S.Kamalesh Kannan, learned Government Advocate accepts notice
on behalf of respondents 1 and 3 and Mr.P.Srinivas, learned Standing
counsel accepts notice on behalf of the 2nd respondent.
(3)The petitioners claim to be in absolute possession and enjoyment of
the landed property comprised in S.No.25/8, TS.No.3, situate at
Avaraipakkam Village, Ward ''C'' Block No.1, Tindivanam, for several
decades and all of them had put up small huts / semi permanent /
permanent superstructures to maintain their families and are eking out
their livelihood as agricultural coolies / menials.
(4)The petitioners would further state that representations have also been
given to the Local Body for grant of pattas in respect of the lands in
their possession and a positive recommendation has also been made by
the Local Body to the Government and however, the Government is
yet to take a call in that regard.
(5)The learned counsel for the petitioners would submit that during
August 2005, an attempt has been made to take possession of the lands
without recourse to law and in this regard, civil suits, praying for
declaration and permanent injunction, have been filed on the file of the
Court of District Munsif, Dindigul and the same are pending without
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WP.Nos.2620, 2622, 2626 & 2630/2021
the benefit of any interim orders. He would submit that despite the
fact that the land has been classified as ''Government Poramboke
Track [ghij] as per the Revenue Records, the 2nd respondent /
Municipality has issued the impugned Notices under Section 182 of
the Tamil Nadu District Municipalities Act, 1920 and drawn the
attention of this Court to paragraphs No.17, 27 and 38 of the decision
rendered by a Full Bench of this Court reported in 2005 [2] CTC 741
[Ramaraju V. The State of Tamil Nadu rep.by its Secretary to
Government, Revenue Department, Fort St George, Chennai and
Others] and would submit that in the light of the ratio laid down in the
said judgment, the 2nd respondent lacks jurisdiction to issue the
impugned Notices and prays for interference.
(6)The Court heard the submissions of Mr.S.Kamalesh Kannan, learned
Government Advocate appearing for respondents 1 and 3 and
Mr.P.Srinivas, learned Standing counsel appearing for the 2nd
respondent, who on instructions would submit that though the land has
been classified as Government Poramboke as per the Revenue
Records, once the user is for pathway/road, it vests with the
Municipality and as such, the 2nd respondent is having jurisdiction and
competence to issue the impugned Notices and admittedly, all the
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WP.Nos.2620, 2622, 2626 & 2630/2021
petitioners are rank encroachers and they also put up unauthorised
semi permanent / permanent constructions and since due process of
law is being followed, they are not expected to make any grievance in
that regard and prays for dismissal of these writ petitions with
exemplary cost.
(7)This Court has carefully considered the rival submissions and also
perused the materials placed before it.
(8)A perusal of the typed set of documents would prima facie disclose
that the land in question has been classified as Government
Poramboke Track [ghij]. The Full Bench of this Court, in the above
cited decision, in paragraphs No.17 and 27, has observed as follows:-
''17.Under Section 182[2], if the removal is
effected in respect of any projection, encroachment
before the expiry of the permission or the license or
where such projection, encroachment or obstruction
is existed for a period sufficient under the law of
limitation to give any person prescriptive title
thereto, the municipal council is required to make
reasonable notice to every person who suffers
damage by the removal or alteration of the same. It
is obvious that if no compensation is offered in
respect of action coming within the purview of
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WP.Nos.2620, 2622, 2626 & 2630/2021
Section 182[2] or if the compensation offered is not
reasonable, the aggrieved party would be entitled to
seek for payment of reasonable compensation before
the appropriate Civil Courts. However, such person
cannot seek for any injunction regarding the
removal of the projection, encroachment or
obstruction on the footing that compensation has
not been paid or compensation paid is not
reasonable. At the stage of Section 182, he is only
entitled to a notice as envisaged under section
182[1] so that he himself can remove the projection,
encroachment or obstruction. If however he does
not do so in spite of notice, it is the duty of the
municipality to do so.
........
27.Next comes the question relating to
removal of encroachments on lands which do not
form part of the road or roadside land or street
margins. So far as the Municipalities are
concerned, apart from the streets and roads which
vest in the municipality, there may be exists certain
other lands which are not part of the road or street,
but which vest in the Municipality. In respect of
such land encroached upon by an encroacher, it is
obvious that the municipality is required to follow
the provisions contained in Public Premises
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WP.Nos.2620, 2622, 2626 & 2630/2021
Eviction Act or other appropriate law to recover
possession from the person in possession in
accordance with law,. However, the Municipality is
not expected to take the law into its own hand and
forcibly evict the trespasser by misconstruing the
observation made in the order of the Division
Bench. Rule of law is rquired to be followed. The
definition clause under Section 2[e][ii] of the Tamil
Nadu Public Premises [Eviction of Unauthorised
Occupants] Act, 1975 takes within its seep any land
or building belonging to the Municipality. It is
therefore, obvious that recourse can be had to the
provisions contained in the aforesaid Act. Where,
however, there is bona fide and serious dispute to
the entitlement, of the municipality, the summary
procedure contemplated under the Tamil Nadu
Public Premises [Eviction of Unauthorised
Occupants] Act, 1975 may not be applicable and the
Municipality would be required to recover
possession through a Civil Courts.''
(9)In the light of the said observation, streets and roads vest with the
Municipality and the learned counsel for the petitioners sought to
distinguish the same by submitting that streets and roads vest with
Municipality and not the track. However, this Court is of the
considered view that such a kind of interpretation cannot be given for
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WP.Nos.2620, 2622, 2626 & 2630/2021
the reason that even the tracks [ghij] are also maintained by the
Municipality and if the analogy proposed by the petitioners is
accepted, then the Local Body may shirk out their responsibility to
maintain the track [ghij].
(10)In the light of the above facts and circumstances, this Court permits
the petitioners to submit individual representations to the 2nd
respondent with all relevant and authenticated documents for
substantiation of their respective claim within a period of four weeks
from the date of receipt of a copy of this order / uploading of the order
in the website, including the objection as to the invocation of Section
182 of the Tamil Nadu District Municipalities Act, 1920, and upon
receipt of the same, the 2nd respondent is directed to consider the said
representations on merits and in accordance with law and preferably
take up the plea as to the jurisdiction to issue such notices and pass
appropriate orders within a further period of six weeks thereafter and
communicate the decision taken, to the petitioners and till such time,
the 2nd respondent shall defer further decision in terms of the
impugned Notices. It is made clear that the petitioners, till the
disposal of the representations by the 2nd respondent, shall not create
any third party rights in respect of the lands and superstructures in
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WP.Nos.2620, 2622, 2626 & 2630/2021
question.
(11)The writ petitions stand disposed of accordingly. No costs.
Consequently, the connected miscellaneous petitions are closed.
[MSNJ] [AANJ]
23.02.2021
AP
Internet:Yes
To
1.District Collector
Collector Office Road
Moonvedar Nagar
Villupuram 605 602.
2.The Commissioner
Tindivanam Municipality
Hospital Road,
Tindivanam-604 001.
3.Tahsildar
Taluk Office, Tindivanam East
Tindivanam 604 001.
https://www.mhc.tn.gov.in/judis/
WP.Nos.2620, 2622, 2626 & 2630/2021
M.SATHYANARAYANAN, J.,
AND
A.A.NAKKIRAN, J.,
AP
WP.Nos.2620, 2622, 2626 & 2630/2021
23.02.2021
https://www.mhc.tn.gov.in/judis/
