Madras High Court
Anjalai vs The District Collector on 29 June, 2022
W.P.(MD)No.13519 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 29.06.2022
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
and
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.P(MD)No.13519 of 2022
and
W.M.P(MD)Nos.9621 and 9623 of 2022
Anjalai ... Petitioner
Vs.
1.The District Collector,
Tiruchirappalli District,
Tiruchirappalli – 620 001.
2.The District Revenue Officer,
Tiruchirappalli District,
Tiruchirappalli – 620 001.
3.The Revenue Divisional Officer,
Divisional Office, Paramasivapuram,
Lalgudi, Tiruchirappalli District 621 601.
4.The Tahsildar, Mannachanallur Taluk Office,
Mannachanallulr, Tiruchirappalli District 621 601.
5.The Panchayat President,
Panchayat Office, Aayikudi Village Panchayat,
Mannachanallur Taluk, Tiruchirappalli District 621 601.
6.The Superintending Engineer,
Water Resource Department/PWD,
Irrigation Section, Ariyaru Vadinila Kottai,
Subramaniyapuram, Tiruchirappalli-620 020.
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W.P.(MD)No.13519 of 2022
7.The Executive Officer,
Water Resource Department/PWD,
Irrigation Section, Ariyaru Vadinila Kottai,
Subramaniyapuram, Tiruchirappalli-620 020.
8.The Assistant Executive Engineer,
Water Resource Department/PWD,
Irrigation Section, Ariyaru Vadinila Kottai,
Subramaniyapuram, Tiruchirappalli-620 020.
9.The Assistant Engineer,
Water Resource Department/PWD,
Irrigation Section, Ariyaru Vadinila Kottai,
Subramaniyapuram, Tiruchirappalli-620 020. ... Respondents
Prayer: Writ Petition filed under Article 226 of Constitution of India, to
issue a Writ of Certiorarified Mandamus, to call for the records
pertaining to the impugned eviction letter issued by the 9th respondent
herein in his Letter No.Ko.17/2022/Vu.Po(Elaa), dated 30.05.2022 and to
quash the same as illegal and consequently, to direct the respondents 1
to 4 to issue house site patta in respect of the petitioner house property
comprised in Survey No.176/1, to the extent of 4 cents, situated at
Aayikudi Village Panchayat, Mannachanallur Taluk, Tiruchirappalli
District by considering her representation, dated 09.05.2022.
For Petitioner :Mr.C.Abdulkalam Azad
For R1 to R4 and R6 to R9 :Mr.N.Satheesh Kumar
Additional Government Pleader
For R5 :Mr.S.P.Maharajan
Special Government Pleader
***
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W.P.(MD)No.13519 of 2022
ORDER
(Order of the Court was made by S.S.SUNDAR, J.)
This Writ Petition is filed for issuance of a Writ of Certiorarified
Mandamus to quash the impugned order passed by the ninth respondent,
dated 30.05.2022 and for a consequential direction to the respondents 1
to 4 to issue house site patta in respect of the petitioner's house property
comprised in Survey No.176/1, to an extent of 4 cents, situated at
Aayikudi Village Panchayat, Mannachanallur Taluk, Tiruchirappalli
District.
2.Heard Mr.C.Abdulkalam Azad, learned Counsel for the
petitioner, Mr.N.Satheesh Kumar, learned Additional Government
Pleader, who takes notice for R1 to R4 and R6 to R9 and
Mr.S.P.Maharajan, learned Special Government Pleader, who takes notice
on behalf of the fifth respondent. By consent of both parties, this Writ
Petition is taken up for final disposal at the admission stage itself.
3.The petitioner herein is the resident of Mela Vangaram Lake
near Samayapuram in Trichy District. Challenging the order of eviction
directing the petitioner and others to remove the encroachment from the
Government water body, namely, Mela Vangaram Lake, after issuance of
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W.P.(MD)No.13519 of 2022
Form-I, Form-II and Form-III under the provisions of the Tamil Nadu
Protection of Tanks and Eviction of Encroachments Act, 2007, the above
Writ Petition is filed.
4.The learned Counsel for the petitioner submitted that many
poor people, like, the petitioner, have occupied and residing with their
family by putting up a small structure for more than 100 years and that
their fore-fathers have, in-fact, constructed such small thatched or tiled
houses in the water body. It is further stated that the petitioner and
others have obtained electricity service connection from the Electricity
Department and also water connection from the local body.
5.Stating that all the houses put up by the petitioner and others
in the water body are assessed to property tax and the petitioner is
paying the property tax and other dues, the petitioner claims possessory
right in respect of the land, which is in his enjoyment. The petitioner's
residential address is given by referring to the street name indicating
that the respective portion of the tank is in existence as a residential
colony for a considerable time. It is admitted that the enjoyment and
encroachment of the petitioner is in the water body, known as Mela
Vangaram Lake.
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W.P.(MD)No.13519 of 2022
6.However, it is admitted that small extent of land, which is also
the part of Mela Vangaram Lake, has been re-classified as Natham and
that patta has been given to some of the persons by re-classifying the
said portion of the land as Natham. It appears that they got patta either
by misrepresentation to the Government or the Government by re-
classifying the land has wrongly protected individual, who had also
encroached land the. This is not permissible as per the judgment of
Honourable Supreme Court, which clearly indicates that the water bodies
should be protected and the encroachment in any form should be
removed. Encroachment in water bodies cannot be regularised.
7.Mela Vangaram lake is classified as a water body as per the
survey records and the water body exist as a Lake even before
settlement. The entire extent of lake is 21.46.5 hectares in S.No.176/1
and during UDR survey, the lake was classified as PWD lake. Based on
the classification of a small extent in S.No.176/2, as Natham, it appears
that others also have encroached the same on the hope that they would
also get patta in future, if they are in enjoyment of the property.
8.This Court, having regard to the facts narrated in the affidavit
filed in support of this Writ Petition, is unable to accept the case that the
entire extent of land, in which the petitioner and others are in
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W.P.(MD)No.13519 of 2022
encroachment, should be treated and classified as Natham. Merely
because, another portion of water body is encroached by the villagers
and an attempt is made to get patta subsequently on the strength of their
possession by putting up construction, this Court cannot permit the
encroachers, to claim possessory right or title on the basis of their
enjoyment. The Public Works Department has failed to take action,
despite the fact that the encroachment by several persons was under
their nose. It is unfortunate to notice that revenue authorities have also
failed in their responsibility and duty preventing encroachment in water
bodies by their inaction.
9.The case of the petitioner that one aided school, ration shops
and temples are located in the water body cannot be taken advantage to
regularise the encroachment by the petitioner and others to continue the
encroachment in water body. However, the learned Counsel for the
petitioner submitted that the petitioner and other encroachers were
called upon to vacate the houses within 21 days. In view of the fact that
the petitioner is unable to get alternative accommodation and shifting of
family and belongings is very difficult, the learned Counsel for the
petitioner submitted that the time given by the respondents to vacate the
premises is too short and seeks sufficient time to vacate the premises.
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W.P.(MD)No.13519 of 2022
10.Except the last submission seeking further time to vacate,
this Court is unable to consider any of the submissions of the learned
Counsel for the petitioner. The statement of facts found in the affidavit
are contrary to the admitted facts and the records produced by the
petitioner. The petitioner and other encroachers may have permanent
address and their possession for a long time cannot be considered, as
everyone knows that they are encroaching the water body at the time
when they entered into possession. It is admitted that the petitioner and
others have made representations for patta. Payment of property
tax/house tax, water charges and electricity charges for their enjoyment
will not confer the petitioner and other encroachers any right or title,
especially when their encroachment is in the water body, which has to be
protected by us for the future generation.
11.This Court in the case of R.Gurusamy vs The Government
of Tamil and others, in W.P.(MD)No.11825 of 2022, dated
15.06.2022, held as follows:
“9.The Division Bench of this Court in the case of T.S.Senthil
Kumar vs. Government of Tamil Nadu reported in 2010 (3) MLJ 771, held
that the encroachment should be identified after conducting survey. The
Hon'ble Supreme Court in Madhav Rao Schindia v. Ramesh Jatav [(2006)
1 SCC 379] has held that such survey to identify encroachment shall be
done in the presence of the persons, who are interested or the persons,
who are found to be encroachers. However, the respondents have not
taken care to comply with the directions of this Court. Hence, the
impugned Form-III notice, dated 03.06.2022, which is contrary to the
statute as held by the Division Bench of this Court, is set aside.”
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W.P.(MD)No.13519 of 2022
12.In this case, the petitioner and others have admitted their
enjoyment over the water body in S.No.176/1 and that therefore, there is
no requirement of identifying the encroachment. It is not in dispute that
all the encroachers have received notice in Form-III, dated 28.04.2022.
In response to the same, the petitioner has submitted a detailed
representation on 09.05.2022. It is only after considering the
representation of the petitioner, the impugned order has been passed,
which is challenged in this Writ Petition. Since the procedure
contemplated under the provisions of the Tamil Nadu Protection of Tanks
and Eviction of Encroachments Act, 2007, has been scrupulously
followed, this Court is unable to find any illegality in the final order
passed by the ninth respondent. Hence, this Writ Petition is dismissed.
and the impugned order of eviction passed by the ninth respondent under
the provision of Tamil Nadu Protection of Tanks and Eviction of
Encroachments Act, 2007, is confirmed.
13.As regards the time to vacate the premises, the learned
Counsel for the petitioner seeks six months time. However, this Court
has to consider the fact that the respondents have initiated proceedings
long time earlier. Further, due to various reasons and the intervention of
Court, they were unable to proceed with the eviction of encroachment in
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W.P.(MD)No.13519 of 2022
water body by the petitioner and others, who are aware that they have
encroached into the water body. Despite several notices and warnings
given to the petitioner and other encroachers, they did not choose to
vacate the place by finding an alternative place.
14.However, this Court is inclined to grant six months time to
vacate the premises provided the petitioner submit an undertaking
affidavit indicating that he/she will remove the encroachment by taking
away their belongings on or before the end of December 2022. In case of
failure to give such undertaking, it is open to the respondents to remove
the encroachment, as per the impugned order, which is confirmed by this
order.
15.Considering the fact that there will be further encroachment
in future, the respondents shall put up a notice board clearly indicating
that removal of encroachment by passing orders has been upheld by this
Court and giving a warning that there shall be no further encroachment.
The same shall be monitored by the respondents by employing a
temporary staff with the specific instruction to report any encroachment
immediately, so that such encroachment is dealt with accordingly.
16.As regards alternative accommodation, irrespective of the
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W.P.(MD)No.13519 of 2022
order passed by this Court, it is open to the petitioner to approach the
District Collector for any alternative accommodation, which can be
considered by them independently. However, this Court does not find any
statutory or constitutional right guaranteed to the petitioner for claiming
alternative accommodation, as he/she is just an encroacher. The
petitioner or other encroachers cannot be permitted to squat over the
water body any further on the basis of their representations, which will
not give them a fresh cause of action to file a Writ Petition regarding
their possession or removal of encroachment. No costs. Consequently,
connected miscellaneous petitions are closed.
[S.S.S.R., J.] [S.S.Y., J.]
29.06.2022
Index : Yes / No (4/7)
cmr
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W.P.(MD)No.13519 of 2022
To
1.The District Collector,
Tiruchirappalli District,
Tiruchirappalli – 620 001.
2.The District Revenue Officer,
Tiruchirappalli District,
Tiruchirappalli – 620 001.
3.The Revenue Divisional Officer,
Divisional Office, Paramasivapuram,
Lalgudi, Tiruchirappalli District 621 601.
4.The Tahsildar, Mannachanallur Taluk Office,
Mannachanallulr, Tiruchirappalli District 621 601.
5.The Panchayat President,
Panchayat Office, Aayikudi Village Panchayat,
Mannachanallur Taluk, Tiruchirappalli District 621 601.
6.The Superintending Engineer,
Water Resource Department/PWD,
Irrigation Section, Ariyaru Vadinila Kottai,
Subramaniyapuram, Tiruchirappalli-620 020.
7.The Executive Officer,
Water Resource Department/PWD,
Irrigation Section, Ariyaru Vadinila Kottai,
Subramaniyapuram, Tiruchirappalli-620 020.
8.The Assistant Executive Engineer,
Water Resource Department/PWD,
Irrigation Section, Ariyaru Vadinila Kottai,
Subramaniyapuram, Tiruchirappalli-620 020.
9.The Assistant Engineer,
Water Resource Department/PWD,
Irrigation Section, Ariyaru Vadinila Kottai,
Subramaniyapuram, Tiruchirappalli-620 020.
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W.P.(MD)No.13519 of 2022
S.S.SUNDAR, J.
and
S.SRIMATHY, J.
cmr
W.P(MD)No.13519 of 2022
29.06.2022
(4/7)
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