Madras High Court
M.Krishnamoorthy vs The District Collector on 4 June, 2021
W.P.(MD)Nos.7612 of 2020 etc., batch
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 04.06.2021
CORAM:
THE HONOURABLE MR.JUSTICE T.S. SIVAGNANAM
AND
THE HONOURABLE MRS.JUSTICE S.ANANTHI
W.P.(MD)Nos.7612, 10432, 10435, 10437, 10441, 10445, 10450, 10452, 10454,
10457, 10459, 10463, 10464, 10465, 10467, 10484, 10486, 10488, 10495,
10498, 10500, 10508, 10512 and 8577 of 2020
and
W.M.P.(MD)Nos.9239, 7946, 9236, 9240 to 9243, 9246, 9248 to 9250, 9257 to
9259, 9261, 9275, 9279, 9281, 9287 to 9289, 9299 and 9302 of 2020
W.P.(MD)No.7612 of 2020
M.Krishnamoorthy ... Petitioner
Vs.
1. The District Collector,
District Collector Office,
Thanjavur.
2. The District Revenue Officer,
Thanjavur.
3. The Revenue Divisional Officer,
Thanjavur.
4. The Thasildar,
Bhoodhalur,
Thanjavur.
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W.P.(MD)Nos.7612 of 2020 etc., batch
5. The Superintending Engineer,
Kallanai Channel Division,
Bhoodhalur, Thanjavur.
6. The Superintending Engineer,
Public Works Department,
Lower Cauvery Basin Circle,
Water Resources Division,
Thanjavur District.
(R6 suo motu impleaded vide order, dated 15.07.2020
in W.P.(MD)No.7612 of 2020)
7. R.Natarajan
8. S.Vasudevan
(R7 and R8 are impleaded vide order, dated 30.03.2021
in W.M.P.(MD)Nos.8932 and 9285 of 2020 in
W.P.(MD)No.7612 of 2020)
PRAYER : Writ Petition filed under Article 226 of the Constitution of India,
seeking for the issuance of Writ of Mandamus, to direct the respondents to take
immediate action to remove the encroachments in the Ayyanar Eri, Maraneri
Village, Bhoodhalur Taluk, Thanjavur District by considering the petitioner's
representation dated 09.06.2020 and take necessary action.
For Petitioner : Mr.A.Sivasubramanian
For Respondents 1 to 6 : Mr.K.Baskaran,
Standing Counsel for Government
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W.P.(MD)Nos.7612 of 2020 etc., batch
COMMON ORDER
[Order of the Court was made by T.S. SIVAGNANAM, J.]
These writ petitions pertain to a Tank called as “Ayyanar Eri”
comprised in R.S.No.400/1-A to 431.
2.The first writ petition has been filed by M.Krishnamoorthy, in
W.P.(MD)No.7612 of 2020, which is a ''Public Interest Litigation'' to direct the
respondents to take immediate action to remove the encroachments in the
"Ayyanar Eri", by considering the representation.
3.At the time, when the writ petition was entertained, the Hon’ble
Division Bench, while ordering notice, passed a speaking order, dated
15.07.2020, which is quoted herein below, in order to appreciate the sensitivity of
the matter :
"The matter in issue pertains to the encroachment
upon a huge water body namely “Ayyanar Eri”, Maraneri
Village, Bhoodhalur Taluk, Thanjavur District in Survey
No.400/1-A to 431. The grievance expressed by the petitioner
is that despite the said facts have been brought to the
knowledge of the concerned officials, there is absolutely lack
of response and hence, left with no other option, the petitioner
is constrained to approach this Court in the form of Public
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W.P.(MD)Nos.7612 of 2020 etc., batch
2. The learned counsel for the petitioner drawn the
attention of this Court to the typed set of documents.
3. A perusal of the typed set of documents would
disclose that Thiru.Savarimuthu and 30 others had filed
O.S.No.347 of 1990 on the file of the Court of District
Munsif, Thiruvaiyaru praying for permanent injunction
restraining the respondents from interfering with their
peaceful possession and enjoyment of the land in R.S.No.
400/1-A, Maraneri Village, Bhoodhalur Taluk, Thanjavur
District.
4. The said suit after contest came to be dismissed
on 28.01.1993. In paragraph No.5 of the said judgment, the
defendants namely, the Assistant Engineer, Public Works
Department, Boothaloor and the District Collector, Thanjavur
District took a stand that after following due process of law,
eviction proceedings were completed on 31.08.1990 and after
that date none of the plaintiffs were in possession and
enjoyment of the property in question.
5. When this Court has put a specific query to the
learned Additional Government Pleader appearing for the
official respondents as to the present state of affairs, he would
submit that the vast water body has become dry now and as on
date, there are 122 encroachments on the water body, out of
which 81 persons are cultivating the lands and 28 persons
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have put up constructions and rest of them are in occupation.
W.P.(MD)Nos.7612 of 2020 etc., batch
6. It is pertinent to point out at this juncture that the
water body having the spread of 30.70.5 acres became dry on
account of the fact that the water ways to the said water body
have not been maintained / cleared properly by the concerned
department, especially by the Public Works Department.
7. Despite very many orders have been passed
including the judgment of this Court in T.K.Shanmugam vs.
The State of Tamil Nadu and six others reported in 2015 (5)
L.W. 397, nothing is moving forward and rather the concerned
officials exhibit total lack of awareness or responsibility,
despite the fact that they are under the statutory obligations to
clear the encroachments and maintain the water body.
8. This Court can also take judicial notice of the fact
that the Government of Tamil Nadu is spending Crores and
Crores of public money under 'Kudimaramathu Scheme', for
de-silting and deepening the water body and no useful
purpose would be served merely by deepening or desilting the
water body, unless the water ways to the water body are
cleared by way of removing the encroachment or exotic
growths and it appears that no endeavour whatsoever has been
taken in this regard. Even by applying common sense, it
should be dawn to the concerned officials to clear the water
ways, so that in the event of monsoon or rain, water would
reach the water bodies and however no attention has been
devoted by them in this regard.
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9. Notice of motion returnable on 26.08.2020.
W.P.(MD)Nos.7612 of 2020 etc., batch
10. In the light of the above facts and
circumstances, this Court suo motu impleads the
Superintending Engineer, Public Works Department, Lower
Cauvery Basin Circle, Water Resources Division, Thanjavur
District as the sixth respondent in this writ petition.
11. The newly impleaded sixth respondent is
directed to cause inspection of the said water body with the
assistance of the Revenue and Police Officials and if any law
and order and public order is created, the Revenue as well as
the Police Officials are directed to give their fullest
cooperation to the said Officials to carry out the task assigned
to them by this Court and after causing inspection, he shall
file a comprehensive status report with supporting documents
and photographs as to the restoration of the water body,
especially, clearing the water ways to the water body, so that it
could be revived for the benefit of the public at large,
especially, the agriculturists.
12. Mr.Aayiram K.Selvakumar, learned Additional
Government Pleader, accepts notice on behalf of respondents
1 to 4. Notice of motion returnable by 26.08.2020.
Call on 26.08.2020."
4.Upon notice being served on the respondents, they have entered
appearance and the Superintending Engineer, Public Works Department, Water
Resources Division, Lower Cauvery Basin Circle, Thanjavur, the sixth
respondent in W.P(MD) No.7612 of 2020, has filed a report. The report clearly
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W.P.(MD)Nos.7612 of 2020 etc., batch
shows that there is an encroachment. The report further states that twenty three
persons have been granted patta, of which, 21 people have been granted patta
being "Martyrs" (Thiyagigal patta) and two people under "Boomithana Iyakkam".
The status report states that the Public Works Department has addressed the
Revenue Department to cancel those pattas, granted to those 23 people and allot
alternate places, because, based on those pattas, several others are making claims.
The Superintending Engineer would state that action has not been initiated
against 56 encroachers, because a batch of writ petitions has been filed before
this Court in W.P.(MD)No.8577 of 2020 etc., batch wherein, the prayer has been
made for grant of patta in favour of the petitioners in respect of the lands, which
they have encroached.
5.We fail to understand as to how such could be the reason for not
taking any action for removal of encroachment. Firstly, the person, who speaks
for issuance of patta should show that he has title to the property or he is
otherwise lawfully entitled to. No person has got vested right to claim for grant
of patta in Government property.
6.Admittedly, the land in question is a Government property, water-
body or land appurtenant to the water body. Even assuming for the sake of
arguments, if we accept the stand of K.Ravichandran and others that the land
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W.P.(MD)Nos.7612 of 2020 etc., batch
occupied by them is not in Ayyanar Lake, but, admittedly, the land is a
Government Property. Even assuming that the Government has granted patta to
certain people, those pattas are held to be illegal and a person cannot seek for
similar relief, as it would amount to perpetuating illegal. Therefore the prayer
sought for in W.P.(MD)No.8577 of 2020 for grant of patta is thoroughly
misconceived and liable to be dismissed.
7.The Tahsildar, Budalur, the 6th respondent in W.P.(MD)No.10432 of
2020 etc., batch has filed a counter affidavit, wherein, it has been stated as
follows:
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W.P.(MD)Nos.7612 of 2020 etc., batch
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W.P.(MD)Nos.7612 of 2020 etc., batch
8. The Assistant Executive Engineer, Kallanai Channel Division, the
third respondent in W.P.(MD)No.8577 of 2020 has filed a counter affidavit,
clearly stating that the land is not “Tharisu poromboke land” but, it is a foreshore
area of "Ayyanar Eri". Further, it has been stated that no ‘B’ memo charges were
received from the fasli year 1423 – 1429. Further, the Assistant Engineer is right
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W.P.(MD)Nos.7612 of 2020 etc., batch
in his submission that a person who has paid ‘B’ memo charges, can never state a
claim for grant of patta, because levy of ‘B’ memo charges itself shows that the
person is an encroacher.
9.Thus, for the above reasons, we find that the authority should take
action to remove the encroachments, as expeditiously as possible, as already due
procedure has been followed. However, taking note of the present pandemic
situation, the authorities are directed to take action after 30.07.2021, to evict the
encroachers and if necessary, the authorities may address the Superintendant of
Police / Commissioner of Police of the District, for providing adequate police
protection. The writ petitioners / encroachers shall be permitted to harvest the
standing crops within the aforesaid period.
10. In the light of the above observation, these writ petitions are
dismissed. No costs. Consequently, connected miscellaneous petitions are
closed.
[T.S.S.J.,] [S.A.I.J.,]
04.06.2021
RM/ogy
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W.P.(MD)Nos.7612 of 2020 etc., batch
Note : In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for
official purposes, but, ensuring that the copy of the order
that is presented is the correct copy, shall be the
responsibility of the advocate/litigant concerned.
To
1. The District Collector,
District Collector Office,
Thanjavur.
2. The District Revenue Officer,
Thanjavur.
3. The Revenue Divisional Officer,
Thanjavur.
4. The Thasildar,
Bhoodhalur,
Thanjavur.
5. The Superintending Engineer,
Kallanai Channel Division,
Bhoodhalur, Thanjavur.
6. The Superintending Engineer,
Public Works Department,
Lower Cauvery Basin Circle,
Water Resources Division,
Thanjavur District.
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W.P.(MD)Nos.7612 of 2020 etc., batch
T.S. SIVAGNANAM, J.
and
S.ANANTHI, J.
RM/ogy
W.P.(MD)Nos.7612, 10432, 10435, 10437,
10441, 10445, 10450, 10452, 10454, 10457,
10459, 10463, 10464, 10465, 10467, 10484,
10486, 10488, 10495, 10498, 10500, 10508,
10512 and 8577 of 2020
(4/4)
04.06.2021
https://www.mhc.tn.gov.in/judis/
