Madras High Court
K.Jagannathan @ Jagan vs The District Collector on 22 March, 2022
W.P.Nos.6465 and 6468 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.03.2022
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
and
THE HONOURABLE MR.JUSTICE SATHI KUMAR SUKUMARA
KURUP
W.P.Nos.6465 and 6468 of 2022 and
W.M.P.Nos.6557 and 6561 of 2022
K.Jagannathan @ Jagan ... Petitioner in W.P.No.6465 of 2022
S.Parimalar Selvan ... Petitioner in W.P.No.6468 of 2022
-vs-
1.The District Collector,
Kancheepuram District,
Having Office at the
District Collectorate,
Kancheepuram Town,
Taluk and District.
2. The Tahsildar,
Sriperumbudur Taluk Office,
Sriperumbudur Town and Taluk,
Kancheepuram District. ... Respondents
Prayer in both the petitions: Writ Petitions filed under Article 226 of
the Constitution of India seeking for issuance of a Writ of Certiorarified
Mandamus, calling for the records of the 2nd respondent pertaining to
the Notice under Section 6 of the Land Encroachment Act, issued vide
proceedings of the 2nd respondent in Na.Ka.No.440 of 2022/AA2 dated
18.02.2022 in respect of the land in S.No.157/1A of Thirumangalam
Village, Sriperumbudur Taluk, Kancheepuram District and to quash the
https://www.mhc.tn.gov.in/judis
W.P.Nos.6465 and 6468 of 2022
same and consequently to direct the respondents to reclassify the
piece of land in the petitioners' possession from the present revenue
classification of Kulam Poramboke to Natham land (or) any other
suitable revenue classification.
For Petitioners in both petitions : Mr.K.Selvamani
For Respondents in both petitions : Mr.A.Selvendran,
Special Government Pleader
COMMON ORDER
(Order of the Court was made by T.RAJA, J.)
The Writ Petitioners in both these writ petitions have come to
this Court questioning the correctness of the impugned order passed
by the 2nd respondent, namely, the Tahsildar, Sriperumbudur Taluk
Office, Sriperumbudur Town and Taluk, Kancheepuram District in
Na.Ka.No.440/2022/AA2 dated 18.02.2022, issued under Section 6 of
the Land Encroachment Act, 1905, in respect of the land in
S.No.157/1A of Thirumangalam Village, Sriperumbudur Taluk,
Kancheepuram District.
2.Learned counsel appearing for the petitioners would submit
that one Mr.K.Jagannathan @ Jagan, the writ petitioner in
W.P.No.6465 of 2022 has been doing a business of selling milk and
https://www.mhc.tn.gov.in/judis
W.P.Nos.6465 and 6468 of 2022
vegetables on the opposite side of the Chennai Bangalore Main Road,
whereas one Mr.S.Parimalar Selvan, the Writ Petitioner in W.P.No.6468
of 2022 has been running a hotel under the name and style of 'Hotel
Munees' at No.3/756, Chennai Bangalore Main Road and the same are
covered in Survey No.157/1A, which is classified in the revenue
records as 'Kulam Poramboke'. Apart from these writ petitioners, some
other persons are also having residential premises and some of them
are running their small time business in the said survey number. Since
they have been living and carrying on the small time business for quite
a long time from 1969, they cannot be all of a sudden removed from
the place-in-question, as they do not have any other alternative place
of living to carry on their business in view of the fact that due to the
passage of time, the 'Kulam' has become a Bazaar. Besides, the claim
of both these petitioners have been almost accepted, since the Village
Panchayat of Thirumangalam Village had passed a Resolution dated
17.09.1986 to regularize and grant pattas for the residents and shop
owners in S.No.157/1A.
3.Learned counsel for the petitioners, drawing our attention to a
letter dated 08.09.1986, addressed by the Tahsildar, Sriperumbudur to
the President of Thirumangalam Panchayat, Sunguvar Chathram in
which the second respondent herein directed to pass a resolution and
https://www.mhc.tn.gov.in/judis
W.P.Nos.6465 and 6468 of 2022
thereafter to send the same to the Office of the Tahsildar, so as to
consider the request of 79 residents/people to regularize and grant
pattas for the residents and shop owners in S.No.157/1A, stated that
pursuant thereto, the Panchayat President in their Panchayat President
Meeting held on 17.09.1986 passed a resolution recognizing the
petitioners and others as persons having continuously residing in the
place-in-question for more than a decade. Therefore, now the 2nd
respondent has to issue a patta to the petitioners and others
mentioned in the Resolution of the Panchayat President dated
17.09.1986. But, it is, at this stage, notice has been issued under
Section 7 of the Tamil Nadu Land Encroachment Act by the Tahsildar
asking them to give their explanation as to why they should not be
evicted from the place-in-question, followed by a notice under Section
6 of the Act and therefore, the same are liable to be quashed.
4.In support of his contention, the learned counsel for the
petitioners relied on a decision of a Full Bench of this Court in
T.K.Shanmugam, Secretary, C.P.I. (M) North Chennai District
Committee, 52 Cooks Road, Perambur, Chennai-600 011 vs. The
State of Tamil Nadu rep. by its Secretary to Government,
Department of Revenue, Fort St. George, Chennai-600 009 and
others reported in 2015-5-L.W.397, in which in paragraph 39, it has
https://www.mhc.tn.gov.in/judis
W.P.Nos.6465 and 6468 of 2022
been held that it should not be misunderstood for a moment that all
encroachments should be regularized or encroached, but if the State
Government has taken a conscious decision to regularize certain
encroachments which have continued for a pretty long time 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.
5.In this regard, it is relevant to extract paragraph 39 of the said
decision here under:
''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 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,
https://www.mhc.tn.gov.in/judis
W.P.Nos.6465 and 6468 of 2022
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 regularized or
encroached, but if the State Government takes a conscious
decision to regularize certain encroachments, which have
continued for a pretty long time 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.''
6.In the light of the above, the learned counsel for the
petitioners would further submit that when the 2nd respondent herein,
namely, the Tahsildar, Sriperumbudur Taluk, sent a letter dated
08.09.1986 to the President of Thirumangalam Panchayat, Sunguvar
Chathram to pass a Resolution so as to consider the request of 79
residents/people to regularize and grant pattas for the residents and
shop owners in S.No.157/1A and a Resolution dated 17.09.1986 was
also passed to that effect, the issuance of the notices under Sections 6
and 7 of the Act are uncalled for.
https://www.mhc.tn.gov.in/judis
W.P.Nos.6465 and 6468 of 2022
7.In reply, Mr.A.Selvendran, learned Special Government Pleader
appearing for the respondents would submit that admittedly, all the
petitioners are occupying the land around the temple tank. It is not
known whether their occupation has been recognized by the Village
Panchayat, although the Village Panchayat has passed a resolution on
17.09.1986 and the same has been sent to the Tahsildar. However,
the subsequent elected President of the said Village Panchayat has also
passed a resolution that shows that the place-in-question has not been
regularized. Therefore, a notice under Section 7 of the Act has been
issued and finding no satisfactory reply from the petitioners herein,
action has been taken under Section 6 of the Tamil Nadu Land
Encroachment Act, 1905. If at all the petitioners are aggrieved, it is
not open to them to come to this court sidelining the effective
alternative statutory remedy available under Section 10-A of the Act.
8.It is, at this stage, learned counsel for the petitioners would
submit that the petitioners are prepared to approach the District
Collector, Kancheepuram, but they are left with only one day to file an
appeal.
9.Considering the facts and circumstances of the case and also
the fact that as the power is also there under Section 11(4) of the
https://www.mhc.tn.gov.in/judis
W.P.Nos.6465 and 6468 of 2022
Tamil Nadu Land Encroachment Act to condone the delay, this Court
grants four weeks time to the petitioners to file an appeal under
Section 10 of the Act before the District Collector, Kancheepuram and
if any such appeal is filed within the said time limit, the District
Collector shall consider the same on the basis of the resolution passed
by the Village Panchayat dated 17.09.1986, the proceedings issued by
the 2nd respondent, namely, The Tahsildar, Sriperumbudur Taluk
Office, Sriperumbudur Town and Taluk, Kancheepuram District and
also the observation made by the Full Bench of this Court in paragraph
39 in T.K.Shanmugam, Secretary, C.P.I. (M) North Chennai
District Committee, 52 Cooks Road, Perambur, Chennai-600
011 vs. The State of Tamil Nadu rep. by its Secretary to
Government, Department of Revenue, Fort St. George, Chennai-
600 009 and others reported in 2015-5-L.W.397.
10.With the above observation and direction, these Writ Petitions
are disposed of. No costs. Consequently, connected Miscellaneous
Petitions are closed.
(T.R.J.,) (S.S.K.J.,)
22.03.2022
vga
https://www.mhc.tn.gov.in/judis
W.P.Nos.6465 and 6468 of 2022
To
1.The District Collector,
Kancheepuram District,
District Collectorate,
Kancheepuram Town, Taluk and
District.
2. The Tahsildar,
Sriperumbudur Taluk Office,
Sriperumbudur Town and Taluk,
Kancheepuram District.
https://www.mhc.tn.gov.in/judis
W.P.Nos.6465 and 6468 of 2022
T.RAJA, J.
AND
SATHI KUMAR SUKUMARA KURUP, J.
vga
W.P.Nos.6465 and 6468 of 2022 and
W.M.P.Nos.6557 and 6561 of 2022
22.03.2022
https://www.mhc.tn.gov.in/judis
