Madras High Court
M.E.Sekar vs The Commissioner on 21 June, 2022
W.A.Nos.1998 of 2012 etc. batch
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 02.11.2021
DATE OF DECISION : 21.06.2022
CORAM:
THE HON'BLE MR. JUSTICE T.RAJA
AND
THE HONOURABLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
W.A.Nos.1998 to 2005 of 2012
M.E.Sekar ... Appellant in W.A.No.1998/12
R.Sundar ... Appellant in W.A.No.1999/12
E.Maliga ... Appellant in W.A.No.2000/12
V.Kalaivani ... Appellant in W.A.No.2001/12
A.Sekar ... Appellant in W.A.No.2002/12
A.Suresh ... Appellant in W.A.No.2003/12
R.Maheswari ... Appellant in W.A.No.2004/12
Women, Children Community
Development Trust,
Rep. By its Managing Trustee
Ms.R.Missie, D/o.Rajaian,
Reg.No.764/5,
33/8A, Ponniamman Koil Street,
Padi, Chennai. ... Appellant in W.A.No.2005/12
Vs
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1.The Commissioner,
Ambattur Municipality,
Ambattur, Chennai,
Zone VII, Ambattur.
2.The Tamil Nadu Housing Board,
Rep. By its Executive Engineer,
Thirumangalam, Chennai.
3.The Tahsildar,
Ambattur Municipality,
Ambattor, Chennai.
4.The Inspector of Police,
Korattur Police Station,
Korattur, Chennai. .. Respondents in all Writ Appeals
Prayer in W.A.No.1998 of 2012 : This Appeal has been filed under Section
15 of Letter of Patent against the order passed by the learned Single Judge
in W.P.No.16607 of 2008, dated 27.06.2012.
Prayer in W.A.No.1999 of 2012 : This Appeal has been filed under Section
15 of Letter of Patent against the order passed by the learned Single Judge
in W.P.No.24161 of 2008, dated 27.06.2012.
Prayer in W.A.No.2000 of 2012 : This Appeal has been filed under Section
15 of Letter of Patent against the order passed by the learned Single Judge
in W.P.No.24162 of 2008, dated 27.06.2012.
Prayer in W.A.No.2001 of 2012 : This Appeal has been filed under Section
2/23
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15 of Letter of Patent against the order passed by the learned Single Judge
in W.P.No.24163 of 2008, dated 27.06.2012.
Prayer in W.A.No.2002 of 2012 : This Appeal has been filed under Section
15 of Letter of Patent against the order passed by the learned Single Judge
in W.P.No.16607 of 2008, dated 27.06.2012.
Prayer in W.A.No.2003 of 2012 : This Appeal has been filed under Section
15 of Letter of Patent against the order passed by the learned Single Judge
in W.P.No.24167 of 2008, dated 27.06.2012.
Prayer in W.A.No.2004 of 2012 : This Appeal has been filed under Section
15 of Letter of Patent against the order passed by the learned Single Judge
in W.P.No.24169 of 2008, dated 27.06.2012.
Prayer in W.A.No.2005 of 2012 : This Appeal has been filed under Section
15 of Letter of Patent against the order passed by the learned Single Judge
in W.P.No.24939 of 2008, dated 27.06.2012.
In all Writ Appeals
For Appellants : Mr.K.S.Ilangovan
for M/s.Achari & Antony Associates
For R1 : Mrs.Karthika Ashok
For R2 : Dr.R.Gowri
For R3 : Mr.V.Manoharan, GA
For R4 : Mr.T.Arunkumar, GA
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COMMON JUDGMENT
T.RAJA, J.
Challenging the impugned common order passed by the learned
Single Judge in W.P.Nos.16607 and 24161 to 24169 of 2008, dated
27.06.2012, the appellants have filed these writ appeals.
2. The appellants/writ petitioners filed W.P.Nos.16607 and 24161 to
24169 of 2008 seeking for issuance of a writ of mandamus forbearing the
respondents from interfering with their peaceful possession and enjoyment
of the property in S.No.253/1, Ponniamman Koil Street, Padi, Chennai,
with a further direction to the third respondent Tahsildar to grant patta in
the light of G.O.Ms.No.854, Revenue Department, dated 30.12.2006.
3. By the impugned common order dated 27.06.2012, learned Single
Judge dismissed the said writ petitions holding that the lands in question
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were allotted to the Housing Board for implementing the Housing Scheme
to the general public and to all the categories of society and therefore, the
question of issuance of patta in respect of the land in question does not
arise. Aggrieved by the same, the writ petitioners have filed the present
writ appeals.
4. Learned counsel for the appellants submitted that all their
properties form part of Survey No.253/1 of Padi Village and they have
been residing in that vicinity for more than 20 years and the local
authorities had also provided electricity and telephone connections, etc.
The certificate issued by the Deputy Tahsildar, Ambattur, classified the
said land as “Eri Poromboke”, however, there is no tank in existence and
the entire tank area was handed over by the State Government to the
second respondent/Housing Board, who have put up construction in the
very tank area.
5. It is further submitted that the Government had also issued
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G.O.Ms.No.543, Revenue Department, dated 05.04.1988, to regularize the
occupants in Survey No.253, Padi Village, which is the subject land.
Further, the Tahsildar, Kanchipuram, in his proceedings dated 01.10.1996,
stated that in respect of poramboke lands, proceedings are being conducted
for grant of house site pattas. Subsequently, the Government also passed
G.O.Ms.No.854, Revenue 1 (2) Department, dated 30.12.2006, granting
house site pattas to those people who have been residing for more than 10
years in unutilized government poramboke lands. Based on the same, the
writ petitioners made representation requesting grant of patta to the Chief
Minister's Cell. Thereafter, the Assistant Director, Land Survey and
Records Department, Thiruvallur, vide his proceedings dated 27.02.2007,
directed the third respondent Tahsildar to initiate action for grant of patta
to the writ petitioners in accordance with G.O.Ms.No.543, Revenue
Department, dated 05.04.1988. The Village Administrative Officer,
Ambattur Taluk, has also issued certificate dated 10.04.2007, stating that
the writ petitioners have been residing in the subject property for more
than 10 years. The Revenue Inspector, Ambattur Taluk, vide his
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proceedings dated 13.04.2007, has stated that the writ petitioners are
eligible for house site pattas and thereby recommended their case to the
third respondent Tahsildar for grant of patta. In the light of
G.O.Ms.No.854, Revenue 1 (2) Department, dated 30.12.2006, the third
respondent Tahsildar, has sought the opinion of the first respondent for
grant of patta and thereupon, the first respondent also has recommended
issuance of house site pattas to the persons living in the vicinity of
S.No.253/1, through his proceedings dated 30.07.2007. However, despite
the recommendation of all the authorities for grant of patta to the writ
petitioners, the third respondent Tahsildar has not taken any step so far.
6. Continuing further, learned counsel for the appellants contended
that when Survey No.253 in Padi Village has already been allotted to the
Housing Board for the purpose of housing scheme to the homeless people,
the writ petitioners being homeless persons have been residing in Survey
No.253/1 for more than 10 years and therefore, they are eligible under
Housing Scheme, hence, no steps can be taken to evict them. This being
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the actual scenario, the impugned common order passed by the learned
Single Judge rejecting the prayer of the writ petitioners for grant of patta is
not tenable and therefore, it is liable to be set aside.
7. Learned standing counsel for the second respondent/Housing
Board, by filing a detailed counter affidavit, submitted that the
Government of Tamil Nadu had started developing the Housing Scheme
through the Tamil Nadu Housing Board and one such scheme called as
“Anna Nagar Western Extension Scheme” during the year 1972. The
lands in Survey Nos.253 classified as Tank Poramboke lost its usage as
irrigation source due to lack of water flow. Therefore, in the process of
acquiring the lands for the said scheme, the Government had identified the
lands measuring an extent of 99.80 acres in Survey No.253 of Padi Village
and thereafter, transferred the said land to the Revenue Department for
alienation to the Housing Board. Subsequently, the Housing Board was
permitted to enter upon the subject lands for the purpose of carrying out
the developmental works vide G.O.Ms.No.2318, Public Works
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Department, dated 15.12.1979. Out of 99.80 acres, 63.38 acres were
handed over to the Housing Board for implementing the Housing Scheme
in Survey Nos.253/1, 3,4,5,6,8,9,10,11,12,13,15&16 and the balance lands
measuring an extent of 36.42 acres in Survey Nos.253/2,7,14,&17 were
encroached by the public and the said lands had been classified as Natham
by the Revenue Department. Subsequently, the Tamil Nadu Housing
Board had obtained layout approval comprising of Survey
Nos.253/1,3,4,5,6,8,9,10,11,12,13,15&16 from the competent authority
from time to time. Therefore, the encroachers should be removed and the
land in question used by the encroachers should be handed over to the
Tamil Nadu Housing Board, she pleaded.
8. Supporting the arguments of learned Standing counsel for the
second respondent/Housing Board, Mr.V.Manoharan, learned Additional
Government Pleader appearing for respondents 1, 3 and 4 submitted that
the prayer made by the writ petitioners/appellants for grant of patta in
respect of water body is not legally permissible. In this regard, by relying
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upon a judgment of this Court in the case of L.Krishnan vs. State of Tamil
Nadu and others reported in 2005 (4) CTC 1, he has argued that in the said
judgment, directions were issued to the respondents therein to take
necessary steps to remove the alleged encroachments made by respondents
6 to 12 therein as well as the petitioner therein over Odai Poramboke in
Iyan Punji Survey No.100/1 at No.247, Tatchur Village, Kallakurichi Taluk,
Villupuram District measuring 5 acres and 70 cents and to identify all such
natural water resources in different parts of the State and wherever illegal
encroachments are found, initiate appropriate steps in accordance with the
relevant provisions of law for restoring such natural water storage
resources which have been classified as such in the revenue records to its
original position so that the suffering of the people of the State due to
water shortage is ameliorated.
9. Again referring to the judgment of the Full Bench of this Court in
the case of T.K.Shanmugam vs. State of Tamil Nadu and others reported
in 2015-5-L.W.397, learned Additional Government Pleader submitted
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that this Court has observed that the provisions of the Tamil Nadu
Protection of Tanks and Eviction of Encroachment Act, 2007, do not in any
manner dilute the observations/directions issued in the case of L.Krishnan
vs. State of Tamil Nadu reported in 2005 (4) CTC 1. Therefore, in view of
the settled legal position, directions may be issued to the respondents to
take necessary steps to remove the alleged encroachments.
10. Heard the learned counsel appearing on either side and perused
the materials available before this Court.
11. It is an admitted fact that in the year 1972, the Government of
Tamil Nadu had started developing the Housing Scheme and one such
Scheme is “Anna Nagar Western Extension Scheme”. During the process
of acquiring the land, the Government had identified the lands measuring
to an extent of land 99.80 acres in Survey No.253 of Padi Village and
thereafter, the Tamil Nadu Housing Board was permitted to enter upon
the subject lands for the purpose of carrying out the developmental works
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vide G.O.Ms.No.2318, Public Works Department, dated 15.12.1979. Out of
99.80 acres, 63.38 acres were handed over to the Tamil Nadu Housing
Board for implementing the Housing Scheme in Survey Nos.253/1, 3, 4, 5,
6, 8, 9, 10, 11, 12, 13, 15 & 16. However, the balance lands measuring to an
extent of 36.42 acres in Survey Nos.253/2,7,14&17 were encroached by the
public. It is also to be noted that the Government had issued
G.O.Ms.No.543, Revenue Department, dated 05.04.1988, to regularize the
encroachments in Survey Nos.253/2, 7, 14 and 17 for an extent of 36.42
acres. However, the land in Survey No.253/1 of Padi Village is in
possession of the Tamil Nadu Housing Board for implementing Housing
Scheme as per G.O.Ms.No.2318, Public Works Department, dated
15.12.1979. But, from the records, it is seen that the place in question is Eri
Poramboke. Therefore, considering the nature of the land, in our earlier
order dated 27.10.2021, we have directed the Tahsildar, Ambattur, to find
out the possibility to restore the part of Oorani/water body having an
extent of 6.48 acres in Survey Nos.253/1, 253/15 and 253/16 to its original
position. Pursuant to the order of this Court, the Tahsildar, Ambattur,
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filed his report dated 29.10.2021 stating that in the subject land, more than
1000 families are living and they have obtained electricity connection,
besides, they have water connection and drainage facilities. Therefore,
since the people have been living for a longer period of time and that there
has not been any flow of water into the Tank/Lake for several years, the
Government constituted an Empowered Committee consisting of
Additional Chief Secretary to the Government, Principal Secretary to
Government, the Commissioner of Land Administration. Thereafter, the
Empowered Committee, after obtaining the report from the District
Collector, have approved the land in the lake for alienation to the Tamil
Nadu Housing Board in the guise that the lake became dry and water body
has lost its character and thereby on account of disuse, reclassified of the
lands as “Ryotwari Manai” in respect of the lands which were developed
long back.
12. In this regard, it is apposite to take note of a decision of the Full
Bench of this Court in T.K.Shanmugam's case (cited supra), wherein it is
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held that Article 51-A of the Constitution of India enjoins that it shall be
the duty of every citizen of India to protect and improve the national
environment including forests, lakes, rivers, wildlife and to have
compassion for living creatures, because, this Article is not only
fundamental in the governance of the Country but a duty on the State to
apply these principles in making laws and further to be kept in mind in
understanding the scope and purport of the fundamental rights guaranteed
by the Constitution including Articles 14, 19 and 21 of the Constitution of
India. For better understanding, paragraph Nos.39 to 41 of the said
judgment are extracted blow:-
“39. Going back to the decision of the Division Bench
in the case of Sivakasi Region Tax Payers Association
(supra), the Division Bench in paragraph 27 of the judgment
observed that if any particular pond or water channel,
artificial or natural had fallen into dis-use for a very long
period and if persons have encroached upon such lands,
whether a direction can be issued for eviction and as to
whether such of those persons who have encroached upon
such lands have acquired any right under the law relating to
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limitation or any policy of the State where the Government
in its wisdom decides to confer certain right on such persons.
In paragraph 31 of the judgment, the Division Bench held
that G.O.Ms.No.854, is legal. However, we may note the
observations in paragraph 28 of the judgment, the Division
Bench observed that it should not be misunderstood for a
moment that they are suggesting that all encroachments
should be regularised or encroached, but if the State
Government takes a conscious decision to regularise certain
encroachments, which have continued for a pretty long period
after the appropriate authority comes to a conclusion that
such land is not required for any public purpose or for the
State, the same would be within the jurisdiction of the
Government to take a policy decision in the matter. We have
our reservations in accepting the reasoning given by the
Division Bench in paragraph 28.
40. As noticed above, the Division Bench while
adding a word of caution that they are not advocating a
general principle to regularise all encroachments or
encourage them observed that if the State Government takes
a “conscious decision” to regularise certain encroachments
and if the land is not required for any public purpose, the
State Government would be well within the jurisdiction to do
so. Thus, the question would be as to what is a “conscious
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decision” and what would be the manner in which the
appropriate authority will come to a conclusion that the land
is not required for public purpose. In our view a “conscious
decision” in such cases with particular reference to
encroachment in water bodies should be in consonance with
the public trust reposed on the Government in respect of such
lands (water bodies). The State being a trustee of these
natural resources such as tanks, lakes etc., has to necessarily
act consistent with the nature of such trust. The vesting of
these lands and water bodies with the Government is to
benefit the public and any attempt made by the Government
to act in a manner derogatory to the object for which the land
was vested, has to held to be illegal. The underlying
fundamental principle being that such rights are public
rights are in a higher pedestal than private rights. We may
take a look of the matter from a different perspective. The
Government has considered that water bodies, which have
fallen into dis-use and have been encroached upon could be
declared as not required for any public purpose and the
encroachments could be regularised. What the Government
has failed to see is the cause as to why these water bodies,
lakes, tanks have fallen into dis-use. If this aspect is
analysed, it would come to light that in several cases the
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disuse was man-made and there appears to be a cartel, which
systematically works with a view to grab Government
property. In such scenario while taking a “conscious
decision”, the Government cannot ignore the fiduciary duty
of care and responsibility cast upon it and simultaneously
analyse as to why such dis-use has occurred. The plethora of
decisions on the point elucidate the basic principle of the
public trust doctrine when the water bodies vest with the
Government, placing the Government in the capacity of a
trustee, there is little option except to strictly adhere to the
trust and faith reposed and if the Government has failed to
protect these water bodies, it amounts to breach of the public
trust and in such cases, the duty of the Government is more
onerous to restore the land back to its original position and
thereby restore the trust reposed on it. Therefore, we are not
inclined to accept the proposition that merely because a water
body has put to dis-use that by itself would be a good ground
to regularise the encroachments.
41. The next aspect would be as to how and in what
manner the appropriate authority would come to a
conclusion that such land is not required for any public
purpose or for the State. It may be a policy decision in this
regard, but such policy decision has to satisfy the touch-stone
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of fairness and reasonableness and satisfy Article 14 of the
Constitution of India. Reading of the Government Orders
show that the decision taken with regard to a particular land
is not required for the Government for any public purpose is
largely based on report submitted by the officials of the
Revenue Department and invariably the justification is that
people have been residing for a long period of time and there
has not been any flow of water into tank/lake for several
years or the water is unfit for human consumption. In our
view, this can hardly be a justification, since the Revenue
Authorities have turned a blind eye to encroachments on
lands which have, canals/channels through which the water
flows into such water bodies. Once again the Government
having failed to protect those feeder channels and canals
cannot sight that as an excuse to say that there is no flow of
water into the tank/lake and therefore, they would be justified
in recommending regularisation of the encroachments.”
13. In the light of the ratio laid down in the above said judgment, the
Government has got fiduciary duty of care and responsibility to safeguard
the water bodies and therefore, the Government cannot ignore the ground
reality of being trustee of all these natural resources. In the present case,
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the act of the Government through G.O.Ms.No.105, Revenue and Disaster
Management Department, Land Disposal Wing (LD5 (2)), dated
01.02.2021, permitting alienation of the lands of tank poramboke to an
extent of 64.85 acres in Survey Nos.53/2, 253/1, etc., which are classified as
Government Poramboke (Vaikal, Eri. Etc.) in favour of the Housing Board
on the premise or reason that the tank poramboke land became dry and no
water is coming into its tank is against the law laid down by this Court in
T.K.Shanmugam's case (cited supra).
14. It is also to be noted that Padi and all its vicinities are not
connected with river water. There is no river running nearby Padi to
recharge the adjacent land during the rainy season. The people living on
the non-riparian area are totally depending on the water tanks which
harvest the rain water, through which, the bore-well also can be recharged
during the summer and continuous drought season. Even a man of
ordinary prudence would preserve the water-bodies, more particularly, in
the non-riparian area. If there is downpour of rain on the hills situated 100
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kms. away from the particular area, the river takes the water from
hundreds of kilometers away from the place where it gets rain. Therefore,
wherever the people are living in the river bodies, there is no requirement
for them to build or dig Oorani, Kanmai, waterbody, etc. Even these areas
also should have Kanmai, Oorani, waterbody, etc. to save water to cater to
the agricultural needs and the drinking needs of the people, animals, etc.
Keeping in mind these great ideas, our forefathers have established Oorani,
Kanmai, waterbody, etc. Even if there is continuous failure of monsoon for
some years, these waterbodies would serve the drinking water needs of the
people, animals, etc. Therefore, if we obliterate the waterbodies, more
particularly, in the non-riparian areas, it will be a death knell to the lifeline
of the people and this will have a serious ramification, not only on the
economy but also on the survival of the future generation. Therefore,
foreseeing this truth, Article 51-A(g) in Part IV-A of the Constitution of
India says that it shall be the duty of every citizen of India to protect and
improve the natural environment including forests, lakes, rivers and wild
life, and to have compassion for living creatures. Therefore, since the
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aforesaid Article imposes a duty to ensure healthy environment not only
on the State under Article 48-A but also on citizens under Article 51-A(g)
of the Constitution of India, we hereby direct the respondents to restore
the entire land in S.No.253/1, Ponniamman Koil Street, Padi, Chennai, to
its original position, as this will serve as water body to recharge the bore-
wells sunk in the nearby area during summer season and also serve as
water source to the people at large.
In fine, for the reasons stated above, the writ appeals stand
dismissed. No Costs.
(T.R., J.) (D.B.C., J.)
21.06.2022
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To
1.The Commissioner,
Ambattur Municipality,
Ambattur, Chennai,
Zone VII, Ambattur.
2.The Executive Engineer,
The Tamil Nadu Housing Board,
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Thirumangalam, Chennai.
3.The Tahsildar,
Ambattur Municipality,
Ambattor, Chennai.
4.The Inspector of Police,
Korattur Police Station,
Korattur, Chennai.
T.RAJA, J.
and
D.BHARATHA CHAKRAVARTHY, J.
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