Madras High Court
P.Kunju vs The District Collector on 7 September, 2022
W.P.No.24256 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.09.2022
CORAM :
THE HON'BLE MR.MUNISHWAR NATH BHANDARI, CHIEF JUSTICE
AND
THE HON'BLE MRS.JUSTICE N.MALA
W.P.No.24256 of 2022
P.Kunju ... Petitioner
Vs
1.The District Collector,
Collectorate,
Tiruvarur District,
Tiruvarur.
2.The District Revenue Officer,
Collectorate,
Tiruvarur District.
3.The Revenue Divisional officer,
Office of the RDO,
Mannargudi.
4.The Tahsildar,
Taluk Office,
Thiruthuraipoondi,
Tiruvarur District.
____________
Page 1 of 14
https://www.mhc.tn.gov.in/judis
W.P.No.24256 of 2022
5.The Assistant Engineer,
PWD Water Resources,
Vennar Division No.II
Thiruthuraipoondi and Post,
Tiruvarur District. ... Respondents
Prayer : Petition filed under Article 226 of the Constitution of India
praying for a writ of certiorarified mandamus calling for the records
pertaining to the impugned order passed in Ka.Na.Ko.10/2021 dated
16.7.2021 by the 5th respondent and to quash the same and
consequently direct the respondents as not to do any forceful eviction
without providing any lawful alternative remedies for housing to the
petitioner.
For the Petitioner : Mr.K.M.Subramaniam
For the Respondents : Mr.J.Ravindran
Additional Advocate General
assisted by
Mr.A.Selvendran
Spl. Government Pleader
ORDER
(Order of the Court was made by the Hon'ble Chief Justice)
The writ petition has been filed to challenge the notice dated
16.7.2021 issued by the fifth respondent under Section 7 of the Tamil
Nadu Land Encroachment Act, 1905 [for brevity, "the Act of 1905"]
directing the petitioner to remove the encroachment.
____________
https://www.mhc.tn.gov.in/judis
W.P.No.24256 of 2022
2. Learned counsel for the petitioner submitted that the notice
under challenge was not served on the petitioner, rather, he got a
copy of the same from an indirect source and finding a direction to
remove the encroachment, a writ petition has been filed earlier. It is
alleged that the survey number referred in the notice was not the
subject-matter of the writ petition, being W.P.No.10392 of 2018,
decided on 25.04.2018 to remove the encroachment and otherwise,
the petitioner was not a party to the said litigation so as to effect
compliance of the said order on him. Accordingly, the notice issued
under Section 7 of the Act of 1905 is to be set aside. It is more so,
when the respondents have constructed a public road and as an
identify card was also issued in favour of the petitioner, thus, there is a
presumption of regularization of the possession.
3. Learned counsel further submitted that the petitioner is
residing in the same place for decades and accordingly, a prayer is
made to set aside the impugned notice or alternatively to provide a
house site elsewhere. The petitioner cannot be made remediless and
houseless after 75 years of independence and the Government has
____________
https://www.mhc.tn.gov.in/judis
W.P.No.24256 of 2022
floated a scheme to rehabilitate the poor and needy persons and
accordingly, to allot house site to the petitioner.
4. We have considered the submissions made by learned counsel
for the petitioner and perused the records.
5. A perusal of the notice under challenge makes a reference of
the survey number and it is of watercourse poramboke comprised in
Survey Nos.477, 479, 480 and 481 situated at Korukkai Village,
Thiruthuraipoondi Taluk of Tiruvarur District. The writ petition does
not disclose that the land in question is not a waterbody. In any case,
we have examined the notice in reference to the earlier order of this
Court, as it is stated that the issue raised therein was not pertaining to
the Survey No.477 indicated in the said writ petition and otherwise the
petitioner was not a party respondent.
6. A perusal of the order of this Court in W.P.No.10392 of 2018
[Madharaman v. The District Collector, Tiruvarur District and others]
decided on 25.04.2018 makes reference of Survey Nos.479, 480 and
481 and not Survey No.477. However, it does not mean that without
____________
https://www.mhc.tn.gov.in/judis
W.P.No.24256 of 2022
a direction of the Court, the respondents cannot initiate action, if
somebody has made an encroachment on the waterbody other than
the survey number given in the earlier writ petition in public interest.
The order of this Court in paragraph 7 of the said writ petition directs
for appropriate action as per the provisions of law and is quoted
hereunder:
"7. Though the petitioner prays for a larger relief, this
Court, in the light of the above facts and circumstances
and without going into the merits of the claim projected
by the petitioner directs the 2nd respondent with the
help of jurisdictional Surveyor to cause inspection in
Survey No.480 and 481, Sammankulam Canal,
Thalaikkadu Lake and in the Canal in Survey No.479
situated in Thalaikkadu Kannanmedu Village,
Thiruthuraipoondi Taluk, Tiruvarur District and
depending upon the result of survey and inspection,
shall take immediate and appropriate action to remove
the encroachments, if any, subject to legal interdict,
and the said exercise is to be carried out within a
period of ten weeks thereafter and communicate the
decision taken to the petitioners as well as to the
private respondents."
7. It is not that action should be taken against the private
____________
https://www.mhc.tn.gov.in/judis
W.P.No.24256 of 2022
respondents therein, but against those who have caused
encroachments and furthermore, the direction therein is not in
reference to any survey number. Therefore, we do not find a
necessity of the petitioner to be a party to the litigation earlier filed
and even otherwise the respondents are not precluded to remove the
encroachments in a waterbody on their own, but have to wait for an
order of the court.
8. Learned counsel for the petitioner was asked as to whether
any reply to the notice has been given because a period of more than
one year has already lapsed and, according to him, he has not been
dispossessed. We do not find any reply to the notice and even any
document to show the right to possess the land. It cannot be for the
reason that the respondents have constructed a road and if it is on the
waterbody, it needs to be removed in the light of the judgment of this
Court in the case of K.K.Ramesh v. The State of Tamil Nadu,
represented by its Principle Secretary to the Chief Minister, Chief
Minister's Office, Secretariat, Chennai-9 and others [W.P.(MD)
No.22163 of 2018, decided on 27.01.2022].
____________
https://www.mhc.tn.gov.in/judis
W.P.No.24256 of 2022
9. At this juncture, we would be referring the decision of the
Apex Court in the case of Joginder v. State of Haryana, (2021)
3 SCC 300, wherein it has been emphatically held as under:
"13. It is required to be noted that the
persons in illegal occupation of the Government
Land/Panchayat Land cannot, as a matter of
right, claim regularization. Regularization of
the illegal occupation of the Government
Land/Panchayat Land can only be as per the
policy of the State Government and the
conditions stipulated in the Rules. If it is found
that the conditions stipulated for regularisation
have not been fulfilled, such persons in illegal
occupation of the Government Land/Panchayat
Land are not entitled to regularization. .....
14. At this stage, the decision of this Court in
the case of Jagpal Singh v. State of Punjab, (2011)
11 SCC 396, is required to be referred to. In the said
decision, this Court had come down heavily upon
such trespassers who have illegally encroached upon
on the Gram Sabha/Gram Panchayat Land by using
muscle powers/money powers and in collusion with
____________
https://www.mhc.tn.gov.in/judis
W.P.No.24256 of 2022
the officials and even with the Gram Panchayat. In
the said decision, this Court has observed that "such
kind of blatant illegalities must not be condoned". It
is further observed that "even if there is a
construction the same is required to be
removed and the possession of the land must
be handed back to the Gram Panchayat". It is
further observed that "regularizing such
illegalities must not be permitted because it is
Gram Sabha land which must be kept for the
common use of the villagers of the village".
Thereafter, this Court has issued the following
directions:
'23. Before parting with this case, we give
directions to all the State Governments in the
country that they should prepare schemes
for eviction of illegal/unauthorized occupants
of Gram Sabha/Gram Panchayat/
Poramboke/ Shamlat land and these must be
restored to the Gram Sabha/Gram Panchayat
for the common use of villagers of the
village. For this purpose the Chief
Secretaries of all State Governments/
Union Territories in India are directed to
do the needful, taking the help of other
____________
https://www.mhc.tn.gov.in/judis
W.P.No.24256 of 2022
senior officers of the Governments. The
said scheme should provide for the
speedy eviction of such illegal occupant,
after giving him a show cause notice
and a brief hearing. Long duration of
such illegal occupation or huge
expenditure in making constructions
thereon or political connections must
not be treated as a justification for
condoning this illegal act or for
regularizing the illegal possession.
Regularization should only be permitted in
exceptional cases e.g. where lease has been
granted under some Government notification
to landless labourers or members of
Scheduled Castes/Scheduled Tribes, or
where there is already a school, dispensary
or other public utility on the land.'
In view of the above also, the prayer of the
Petitioners for regularization of their illegal
occupation of the panchayat land cannot be
accepted."
[emphasis supplied]
____________
https://www.mhc.tn.gov.in/judis
W.P.No.24256 of 2022
10. The decision in Joginder v. State of Haryana, supra,
reiterated the view enunciated in Jagpal Singh v. State of
Punjab, (2011) 11 SCC 396. In terms of the directions contained
in the case of Jagpal Singh v. State of Punjab, supra, it is the
bounden duty of the State Government concerned to ensure
restoration of such lands for the common use of villagers of the
village concerned. The State Government is obligated to make
earnest efforts to restore every piece of illegally occupied land
which would fall within the orders and directions issued in the case
of Jagpal Singh v. State of Punjab, supra.
11. The mushrooming of encroachment in the waterbody is
affecting the environment. It is the bounden-duty of the officials to
preserve and protect Government lands which have been reserved
for specific purposes. It is trite that when a person is a rank
encroacher without any valid right or title over the land belonging
to the Government, the Court should not permit or protect the
continued illegal occupation of the land.
____________
https://www.mhc.tn.gov.in/judis
W.P.No.24256 of 2022
12. In the light of the judgments aforesaid, the respondents
have rightly taken action against the petitioner and the petitioner
has failed to show any title document to prove the right of
possession. The identity card would not confer title over the land
and, at the same time, the petitioner has failed to show the
provision of law to make him entitled to seek an alternate land in
the place of the encroached land. If any policy of the Government
exists, this Court is not endorsing the same, as it encourages the
mushrooming of the encroachments and otherwise encroachment is
made invariably on account of the inaction of the officers.
13. At this stage, we may say that the notice under Section 7
of the Act of 1905 should have been taken as a show cause notice,
followed by a notice under Section 6 of the Act of 1905, but the
petitioner has failed to send reply to the notice.
14. For all the reasons given above and in view of the fact
that despite an opportunity of hearing given to the petitioner to
establish his right to possess the land, no document has been
____________
https://www.mhc.tn.gov.in/judis
W.P.No.24256 of 2022
referred to prove the title or right of possession on the land in
question, we find no merit in the writ petition to cause interference
in the impugned notice. Accordingly, the writ petition fails and it is
dismissed. There will be no order as to costs. Consequently,
W.M.P.Nos.23241 and 23246 of 2022 are closed.
(M.N.B., CJ.) (N.M., J.)
07.09.2022
Index : Yes/No
bbr
____________
https://www.mhc.tn.gov.in/judis
W.P.No.24256 of 2022
To:
1.The District Collector,
Collectorate,
Tiruvarur District,
Tiruvarur.
2.The District Revenue Officer,
Collectorate,
Tiruvarur District.
3.The Revenue Divisional officer,
Office of the RDO,
Mannargudi.
4.The Tahsildar,
Taluk Office,
Thiruthuraipoondi,
Tiruvarur District.
5.The Assistant Engineer,
PWD Water Resources,
Vennar Division No.II
Thiruthuraipoondi and Post,
Tiruvarur District.
____________
https://www.mhc.tn.gov.in/judis
W.P.No.24256 of 2022
THE HON'BLE CHIEF JUSTICE
AND
N.MALA,J.
bbr
W.P.No.24256 of 2022
07.09.2022
____________
https://www.mhc.tn.gov.in/judis
