Madras High Court
A.Sujatha Jain vs The District Collector on 23 March, 2022
W.P.Nos.6435, 6437, 6438, 6443, 6447, 6459 and 6461/2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.03.2022
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
and
THE HONOURABLE MR.JUSTICE SATHI KUMAR SUKUMARA
KURUP
W.P.Nos.6435, 6437, 6438, 6443, 6447, 6459 and 6461 of 2022
and WMP.Nos.6524, 6526, 6530, 6537, 6543, 6552 and
6555/2022
W.P.No.6435/2022 :
A.Sujatha Jain ... Petitioner
-vs-
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. ... Respondents
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.440/2022/AA2 dated 18.02.2022 in
https://www.mhc.tn.gov.in/judis
W.P.Nos.6435, 6437, 6438, 6443, 6447, 6459 and 6461/2022
respect of the land in S.No.157/1A of Thirumangalam Village,
Sriperumbudur Taluk, Kancheepuram District and to quash the same
and consequently, direct the respondents to reclassify the piece of land
in the petitioners' possession from the present revenue classification of
Kulam Poramboke to Nathan land (or) any other suitable revenue
classification.
For Petitioner : Mr.K.Selvamani
For Respondents : Mr.A.Selvendran,
Spl.G.P. for R1 and R2
COMMON ORDER
(Order of the Court was made by T.RAJA, J.)
The Writ Petitioners in all 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.
https://www.mhc.tn.gov.in/judis
W.P.Nos.6435, 6437, 6438, 6443, 6447, 6459 and 6461/2022
2. Learned Counsel appearing for the petitioners would
submit that the land-in-question in S.No.157/1A is now classified in the
revenue records as 'Kulam Poramboke'. Apart from these writ
petitioners who are doing small time business, 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 or 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 their possessions and grant pattas for the
residents and shop owners in S.No.157/1A.
3. Learned Counsel for the petitioners drawing our notice to a
letter dated 08.09.1986 addressed by the Tahsildar, Sriperumbudur to
the President of Thirumangalam Panchayat, Sunguvar Chathram in
which the the 2nd respondent herein directed the latter to pass a
resolution and thereafter to send the same to the Office of the
Tahsildar so as to consider the request of 79 residents/people to
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W.P.Nos.6435, 6437, 6438, 6443, 6447, 6459 and 6461/2022
regularize and grant pattas for the residents and shop owners in
S.No.157/1A pleaded 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, the same are liable to be quashed. In
support of his contention, the learned Counsel for the petitioners
requested this Court to consider 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
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
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W.P.Nos.6435, 6437, 6438, 6443, 6447, 6459 and 6461/2022
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.
4. 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,
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
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W.P.Nos.6435, 6437, 6438, 6443, 6447, 6459 and 6461/2022
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.''
5. 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, he submitted.
6. In reply, Mr.A.Selvendran, learned Special Government
Pleader 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
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W.P.Nos.6435, 6437, 6438, 6443, 6447, 6459 and 6461/2022
Panchayat, although the Village Panchayat has passed a resolution on
17.09.1986, the same has been sent to the Tahsildar. However, the
subsequent elected President of the said Village Panchayat has also
passed a counter resolution taking a stand 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,
hence, these petitions are untenable in law.
7. 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.
8. Considering the facts and circumstances of the case and also
the fact that as the power is also available under Section 11(4) of the
Tamil Nadu Land Encroachment Act to condone the delay, this Court
grants two weeks time to the petitioners to file an appeal under
Section 10 of the Act before the District Collector, Kancheepuram and
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W.P.Nos.6435, 6437, 6438, 6443, 6447, 6459 and 6461/2022
if any such appeal is filed, the District Collector may 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.
9. With the above observation and direction, all these Writ
Petitions are disposed of. No costs. Consequently, connected
Miscellaneous Petitions are closed.
(T.R.J.,) (S.S.K.J.,)
23.03.2022
tsi
https://www.mhc.tn.gov.in/judis
W.P.Nos.6435, 6437, 6438, 6443, 6447, 6459 and 6461/2022
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.6435, 6437, 6438, 6443, 6447, 6459 and 6461/2022
T.RAJA, J.
AND
SATHI KUMAR SUKUMARA KURUP, J.
tsi
W.P.Nos. 6435, 6437, 6438,
6443, 6447, 6459 and 6461 of 2022
23.03.2022
https://www.mhc.tn.gov.in/judis
