Madras High Court
Mrs.Sheela vs The District Collector on 1 October, 2021
W.P.No.20675 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE : 01.10.2021
CORAM
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
and
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
W.P.No.20675 of 2021
and W.M.P.No.21945 of 2021
1. Mrs.Sheela
2. Ms.Sumathi ... Petitioners
-vs-
1. The District Collector,
Tiruppathur District,
Tiruppathur.
2. The Tahsildhar,
Tiruppathur Taluk,
Tiruppathur District.
3. The Municipal Commissioner,
Jolarpettai Municipality,
Tiruppathur District.
4. The Town Planning Inspector,
Jolarpettai Municipality,
Tiruppathur District. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
to issue a Writ of Certiorari, to call for the records of the third respondent
herein in Na.Ka.No.100/2021/F1 dated 06.09.2021 and quash the same.
1/12
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W.P.No.20675 of 2021
For petitioners : Mr.S.V.Karthikeyan
For respondents : Mrs.Akila Rajendran,
Government Advocate.
ORDER
(Order of the Court was made by K.KALYANASUNDARAM, J.,)
This Writ Petition has been filed for issuance of a Writ of Certiorari, to
quash the order of the third respondent dated 06.09.2021 made in
Na.Ka.No.100/2021/F1.
2.The case of the petitioners is that the land in Survey No.63/14 is in
possession and occupation of their family for about 40 years. The land in
question was classified as “natham” and hundreds of houses were constructed
over therein. It is also stated that patta was issued to most of the occupants in
the area. The petitioners are in possession of about 2.47 cents and they have
constructed RCC roof house, to an extent of 420 square feet on the said land.
The house was assessed for property tax and they have also been provided with
electricity service connection. The petitioners' mother Vanitha had availed loan
from Tiruppthur Taluk Rural Co-op Housing Society Ltd., by pledging this
property. The further case of the petitioners is that, on 16.06.2021, the third
respondent came to their house with a machinery to demolish their house. Then
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W.P.No.20675 of 2021
only they are aware that in pursuance of the order passed in W.P.No.6474 of
2021 dated 12.03.2021, the 3rd respondent tried to demolish their house.
3.Mr.S.V.Karthikeyan, the learned counsel for the petitioners would
state that originally, the land in dispute was classified as “natham”,
subsequently, it has been shown as the property belongs to the municipality.
4.It is the submission of the learned Government Advocate appearing
for the respondents that the 3rd respondent issued show cause notice dated
20.04.2021, directing the petitioners to remove the encroachment in the area.
Questioning the same, the petitioners have instituted a suit in O.S.No.175 of
2021 before the learned Subordinate Judge, Tiruppathur for declaration of their
title and when the suit was pending, the 3rd respondent has issued the
impugned order dated 06.09.2021, directing the Revenue Inspector to remove
the encroachment. According to the learned Government Advocate, the
respondent Municipality can remove the encroachment by following the due
process of law.
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W.P.No.20675 of 2021
5.The learned counsel for the petitioners by placing reliance on the
decision of the Hon'ble Full Bench in the case of Ramaraju Vs. The State of
Tamil Nadu reported in 2005 (2) CTC 741 urged that the municipality has
power to remove the encroachment in the street and road which are maintained
by the municipality and in respect of other area, even if the land belongs to the
municipality, it has no power to remove the encroachment. It is therefore
obvious that recourse can be had to the provisions contained in the Tamil Nadu
Public Premises (Eviction of Unauthorised Occupants) Act, 1975 (hereinafter
referred to “The Public Premises Act”). But in the case on hand, the
respondents without even mentioning the provisions of the above act, had
directed the petitioners to remove the encroachment.
6.The learned Government Advocate appearing for the respondents
submitted that before passing the impugned order, the 3rd respondent has
issued show cause notices on 20.04.2021 and 11.08.2021 and after providing
opportunity to the petitioners, passed the impugned order. The land in question
belongs to Jolarpettai Municipality and the petitioners are encroachers. That
apart, these proceedings were initiated pursuant to the order passed in
W.P.No.6474 of 2021 dated 12.03.2021. It is further argued by the learned
Government Advocate that the jurisdiction of the Civil Court has been barred
under Section 15 of the Code of Civil Procedure and hence the suit filed by the
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W.P.No.20675 of 2021
petitioners before the learned Subordinate Judge, Tiruppathur, is not
maintainable.
7.Heard the rival submissions of the learned counsels and perused the
materials on record.
8.In the case on hand, the petitioners would claim that they are in
possession of the land measuring an extent of 2.47 cents in Survey No.63/14
for about 40 years and also constructed a house. Though it is stated that the
land was classified as “natham”, no document has been produced to
substantiate the same. It is the specific case of the 3rd respondent that the land
belongs to the respondent Municipality and the petitioners are the encroachers.
9.Perusal of the impugned order shows that the 3rd Respondent has not
mentioned any provision under which the impugned order is passed. The Full
Bench of this Court in the judgment referred above, has categorically held as
follows:-
“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
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W.P.No.20675 of 2021
Municipalities are concerned, apart from the streets and
roads which vest in the municipality, there may be
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 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 required 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 sweep 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.
........................
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W.P.No.20675 of 2021
.........................
38. It is of course true that in the two counter
affidavits, the municipalities have taken the stand, quite
expectedly and understandably, that they have no
intention to take any step for removal of any
encroachment from the road or road margins without
following the due procedure of law and they do not have
the intention to take steps for eviction of any person
from any land not belonging to the municipalities.
However, since the news item appearing in the News
Papers gives the impression as if Rajapalayam
Municipality intended to remove all encroachments
pursuant to the order passed by the High Courts in
W.P.No. 689 of 2005 and since certain misconceptions
have arisen as if the Division Bench has given a blanket
direction for removal of encroachment even without
following due process of law, the matter is required to
be clarified in the following manner :
(1) If the encroachment is on road or road margins,
vested in Municipalities, the removal if any is to be
effected only after following the procedure contemplated
in Chapter IX of the Tamil Nadu District Municipalities
Act and more particularly the provisions contained
in Section 182 and Section 183(6) Before taking action
under Section 182 of the District Municipalities Act,
notice in writing giving atleast two weeks time should be
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W.P.No.20675 of 2021
served and, if the person avoids to receive the notice,
such notice can be effected by affixure. However, notice
by any other means, such as through public
announcement or beating of drums or by general notice
in newspapers, may not be sufficient.
(2) The decision in W.P.No. 689 of 2005 cannot be
construed as having abrogated the statutory power of
the Council under Sections 182 and 183. The Council
may grant licence to put up verandas, balconies,
sunshades, weather-frames and the like. Similarly, the
Council has power to lease road sides and street
margins for occupation on such terms and conditions
and for such period as the Council may fix. However,
such power under Sections 183(1) and 183(3) should be
exercised keeping in view the provisions contained
in Section 183(4) and no such licence under Section
183(1) or lease underSection 183(3) should be granted
if the projection, construction or occupation is likely to
be injurious to health or cause public inconvenience or
otherwise materially interfere with the use of the road
as such. Any projection or construction put up
under Section 183(1) or (2) can be removed on expiry of
the licence or the lease, as the case may be.
Compensation is required to be paid in matters coming
within the scope of 182(2).
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W.P.No.20675 of 2021
(3) Payment of property tax, provisions of water
connection or electricity by themselves cannot be
construed as conferring any independent right, if the
encroachment is otherwise unauthorised.
(4) The above directions and observations are also
applicable to encroachment in respect of road or road
margins coming within the jurisdiction of Municipal
Corporations or Town and Village Panchayats, in which
event, necessary action can be taken by the concerned
authorities by following the relevant provisions of law
applicable to such Corporations or Panchayats.
(5) To the extent the National Highways Act, 1956 and
the Control of National Highways (Land andTraffic)
Act, 2002 are applicable, action can be taken only by
following the procedure prescribed under such statutes.
Similarly the provisions of the Tamil Nadu Highways
Act, 2001, are applicable to the Roads coming under
the State Act.
(6) If the encroachment is on the land belonging to the
Local Authorities, but such land is not part of the road
or road margin or roadside land, eviction can be
effected by following the procedure contemplated in
law, namely, either by taking recourse to the Tamil
Nadu Public Premises (Eviction of Unauthorised
Occupants) Act, 1975 or any other law applicable or
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W.P.No.20675 of 2021
otherwise by taking recourse to Civil Courts and not by
use of unilateral force.
(7) So far as the encroachment on the land belonging to
the Government is concerned, action for eviction if any
can be taken only by the appropriate authority and by
following the procedure contemplated under the Tamil
Nadu Land Encroachment Act, 1905.
(8) The directions issued in W.P.No. 689 of 2005 are
applicable to removal of encroachments on roads and
road margins and not other lands belonging to the
Local Authorities or the State. The said decision should
not be construed as giving a licence to the Local
Authorities to cancel the existing license or lease or to
remove the encroachments without following the
procedure contemplated under the law.
(9) If any Civil Courts decree or interim order is
holding the field, obviously, no action can be taken,
unless and until such a decree or interim order is set
aside or vacated in a manner known to law.”
10.While considering the powers of the respondent Municipality to
remove the encroachments on the land belongs to the local authority, the
Hon'ble Full Bench has held that they have to take recourse to the Public
Premises Act. Indisputably, in the instant case, the respondents have not
followed the procedure contemplated under the Public Premises Act.
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W.P.No.20675 of 2021
Therefore, the order dated 06.09.2021 in Na.Ka.No.100/2021/F1 passed by the
3rd respondent is set aside. The respondents are at liberty to remove the
encroachments by following the due process of law.
11.In the result, this writ petition stands allowed. No costs.
Consequently connected miscellaneous petition is closed.
(M.K.K.S.J.,) (V.S.G.J.,)
01.10.2021
Jer/ham
Index:Yes/No
Internet:Yes/No
Speaking order/Non-speaking order
To
1. The District Collector,
Tiruppathur District,
Tiruppathur.
2. The Tahsildhar,
Tiruppathur Taluk,
Tiruppathur District.
3. The Municipal Commissioner,
Jolarpettai Municipality,
Tiruppathur District.
4. The Town Planning Inspector,
Jolarpettai Municipality,
Tiruppathur District.
K.KALYANASUNDARAM, J.
and
V.SIVAGNANAM, J.
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W.P.No.20675 of 2021
Jer
W.P.No.20675 of 2021
and W.M.P.No.21945 of 2021
01.10.2021
https://www.mhc.tn.gov.in/judis/
