Madras High Court
N. Ponsingh vs The Secretary To The Government Of Tamil ... on 22 December, 2023
Author: P. Velmurugan
Bench: P. Velmurugan
W.P.No. 15021 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Orders Reserved on 13.12.2023
Orders Pronounced on 22.12.2023
CORAM:
THE HONOURABLE MR. JUSTICE P. VELMURUGAN
W.P.No. 15021 of 2019
and
W.M.P.No. 14986 of 2019
N. Ponsingh ... Petitioner
Vs.
1. The Secretary to the Government of Tamil Nadu,
Revenue Department,
Fort St. George, Chennai – 600 009.
2. The Secretary to the
Government of Tamilnadu,
Home Department,
Fort St. George, Chennai – 600 009.
3. The Commissioner,
Land Administration Department,
Ezhilagam, Chennai -600 005.
4. The District Collector,
Chennai District,
Singaravelar Maaligai,
Rajaji Salai, Chennai - 600 001.
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W.P.No. 15021 of 2019
5. The Joint Commissioner of Police,
West Zone,
Ambattur, Chennai - 600 053.
6. The Tahsildhar,
Ambattur Taluk,
Ambattur, Chennai – 600 053.
7. The Inspector of Police,
T3, Korattur Police Station,
Chennai – 600 080.
8. K.K. Rajendran
9. R. Jayaraj ... Respondents
Prayer: Writ Petition filed under Article 226 of Constitution of India for
the issuance of Writ of Declaration, declaring that the order passed by the
Fourth respondent made in Na.Ka.No.J. 13/22001/2018 dated 08.05.2019
as null and void and unconstitutional, consequently direct the respondents
to remove the fencing put up in lands comprised in Survey No. 320/2B,
Padi Village, Ambattur Taluk, Chennai District, by abutting the access to
shops of the petitioner.
For Petitioner : Mr. V.C.Janarthanan
for Mr. C.Prabakaran
For Respondents : Mr. Gurunathan
Additional Government Pleader
(for R1 to R4 and R6)
Mr. S.Sugendran
Additional Public Prosecutor
(for R5 and R7)
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W.P.No. 15021 of 2019
Mr. N.A.Nassir Hussain (for R8)
Mr. R.Jayaraj (for R9)
Respondent in Person
ORDER
The petitioner has filed the present writ petition to declare the
order passed by the fourth respondent made in the Na.Ka.No.J.
13/22001/2018, dated 08.05.2019 as null and void and unconstitutional,
and consequently direct the respondents to remove the fencing put up in
the lands comprised in Survey No.320/2B, Padi Village, Ambattur Taluk,
Chennai District.
2. The brief facts of the Writ Petition, as per the affidavit filed by
the petitioner is that the petitioner is carrying on business in the Patta land
for the past 32 years under the name and style of M/s.Sabarivasan
Hardwares. The same was purchased during the year 1998 to 2001 under
various sale deeds. Adjacent to his Patta land, a Government land is
existing, comprised in Survey Nos. 320/2B and 320/2C totally an extent of
7.5 cents. The said land is classified as “Punjai Tharisu” land in the
Revenue Records.
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3. The above said Government lands are existing in front of his
Patta land and he is constrained to use the said land for access to his shop
and other lands by way of entrance enabling to reach the Patta land, which
are attached thereon. He is in continuous possession and enjoyment of the
properties of the said land for all these years. He has also got a right of
easement for ingress and egress of his Patta land through the said property.
Further, he stated that, his vendor V.M.Chacko was granted lease in
respect of the above said Government land to an extent of 7.50 cents under
G.O.Ms.No. 841, dated 11.05.1988, Revenue Department and his vendor
was in possession and enjoyment of the property for convenience since
from the date of lease. After, purchasing the land, the petitioner is also
continuing in his possession and enjoyment of the Government land for his
convenience and usage, as the said land is situated between his Patta land
and Highways Road, which is the only access for ingress and egress of his
Patta land wherein he is in conducting the business under the name and
style of Sabarivasan Hardwares for the past 32 years. Initially, the
petitioner made an application on 28.10.2002 requesting for grant of lease,
pursuant to which the Revenue Officials conducted the field inspection and
submitted the report dated 28.06.2004, to the Revenue Divisional Officer,
Ponneri. Unfortunately, the same was not proceeded with.
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4. Further, as the requirement of the land and grant of lease hold
right became vital and indispensable for the petitioner to continue the
business as well as usage of his Patta land, he also made an application to
the third respondent seeking to grant of lease hold right in respect of the
above said Government land and on 23.02.2012, the third respondent
forwarded the communication to the fourth respondent on 04.04.2012
directing to take appropriate action and forward the report for the same.
The sixth respondent also conducted field inspection along with the
surveyor and proposal was also sent to the District Revenue Officer,
Thiruvallur, through the Revenue Divisional Officer, Ambattur on
10.03.2013. Pursuant to that, the Revenue Divisional Officer, Ambattur
also sent the proposal to the District Revenue Officer, Tiruvallur dated
09.07.2013. Based on that, the District Revenue Officer entered into the
proposal for grant of lease in his favour to the Third respondent in his
communication dated 18.12.2014. Subsequently, the first respondent
rejected his request for lease of the said land. Aggrieved by the same, he
filed a writ petition before this Court in W.P. No. 6199 of 2017 and the
same is also pending before this Court.
5. In the meantime, there was also eviction proceedings under
the Tamil Nadu Land Encroachment Act, which also attained finality in
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W.P.No.3491 of 2018 by order dated 13.03.2018. Since he was directed to
evict, he has surrendered the vacant possession of the Government land to
the Government and the same was also duly recorded. Further, it is stated
that the petitioner also submitted a representation dated 19.01.2019
through Registered Post to the third and fourth respondents and till now,
the said representation is pending. During the eviction proceedings, the
fourth respondent dismissed his appeal filed under Section 10-A of the
Tamil Nadu Land Encroachment Act, wherein it was observed that the
subject matter of the land is required for the purpose of widening of the
Chennai to Thiruvallur High Road and further, the information furnished
by the Member Secretary, CMDA also reveals that the proposed street
alignment of Chennai to Thiruvallur High Road is 45 meters to the said
land and also required for free access to the commuters of the road.
6. All of a sudden on 16.05.2019, the Revenue officials and
about 50 Police officials came to the Government land, which is in front of
the patta land of the petitioner and put up an iron wired fencing by
abutting access to his shop completely. Therefore, he was not able to even
open his shop and when he enquired, he came to know that the fourth
respondent passed an order dated 08.05.2019 directing the sixth
respondent to make entry in the Revenue Records that the land comprised
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in Survey No. 320/2B, measuring an extent of 14 cents of land, was
allotted to construct of Korattur Police Station and the land was handed
over to the Police Department. It is further stated that all the land Revenue
Records and Town Survey Records maintained by the respective
Authorities, are directed to make entries to the land that belonged to Police
Department. The above said communication amounts to violation of their
own records and there are no concrete materials to make such Revenue
entries, since the land all along belonged and it stood as “Punjai Tharisu
Poramboke”. Further, in the eviction proceedings, the fourth respondent
has recorded that the land is required for Highways Department for
widening of the road for public for free access.
7. Further, it is stated that the Korattur Police Station is being
run in its own land for the past 15 years and as of now, no separate land is
required for the said police station to make any construction and
furthermore, all along, only the Revenue Authorities have possessed, police
department was not in possession at any point of time. Therefore, the
impugned communication of the fourth respondent is opposed to public
policy and the same is liable to be declared as “ultra-vires” and
unconstitutional one and therefore the present writ petition is filed for the
relief stated supra.
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8. The sixth respondent has filed his counter affidavit stating that
the land in S.No.320/2B of Padi Village, Ambattur Taluk of an extent of
0.05.5 ares or 14 cents, is originally classified as Dry Assessed Waste land
which was transferred to the Police Department for construction of
Korattur Police outpost by way of Proceedings of the District Collector,
Chengalpattu, dated 03.11.1976 in Order No. 122428/1976/B1. The said
land in S.No. 320/2B of an extent of 6.5 cents and the land in S.No.
320/2C of an extent of 1 cent, of total 7.5 cents were originally leased out
to one V.M. Chacko. Lease was granted, vide G.O.Ms.No. 841, Revenue
(D1) Department, dated 11.05.1988 for a period of three years with effect
from 11.05.1988 and lease expired on 10.05.1991 with the concurrence of
Home Department. But the said V.M.Chacko had neither paid lease
amount, nor renewed the lease.
9. The present writ petitioner purchased the above said
Government Poromboke land in S.No. 320/2B of an extent of 6.5 cents
and the land in S.No. 320/2C of an extent of 1 cent, along with the other
land from the said V.M.Chacko through illegal registered documents and
is now occupying the land unauthorisedly, even after knowing the
consequences of the fact that the said V.M.Chacko had no interest in the
said property. The Commissioner of Land Administration, in his letter
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dated 04.08.2009 directed the Revenue Authorities to lodge a complaint
against the petitioner and also to initiate action to resume the Government
land. One Thiru.K.K.Rajendran filed a writ petition in W.P.No.29831 of
2016, in which this Court had passed an order on 29.08.2016 to remove
the encroachments in S.Nos.320/2B and 320/2C. Therefore, the
encroachment was removed and the petitioner was evicted under the
provisions of Tamil Nadu Land Encroachment Act, 1905. The request of
the Writ petitioner for leasing the above said land, was also rejected by the
order in G.O. 54, Revenue Department, dated 23.02.2017. The appeal
filed by the petitioner under Section 10(1) of the above said Act, was also
rejected by the fourth respondent on 29.03.2017. The Writ petitioner also
filed a Revision Petition before the Commissioner of Land Administration
due to delay in filing the petition. The said Revision Petition was dismissed
on 05.12.2017.
10. The Writ petitioner also filed a petition in W.P.No 3491 of
2018 against the order of the District Collector, Thiruvallur under Section
10(A)(1) of the Tamil Nadu Land Encroachment Act, 1905 and to forbear
the respondents from interfering with the petitioner’s peaceful possession
of the above said Government land. This Court also passed an order dated
13.03.2018 granting time till 10.06.2018 to the petitioner herein to remove
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his entire belongings, which are kept in the encroached land and hand over
the vacant possession of the land, failing which, it is open to the
Authorities concerned to take assistance of Police and remove the same
and thus the encroachment was removed. The Government land in Survey
No.320/2B was originally classified as “Dry Assessed waste” which was
transferred to the Police Department for construction of Korattur Police
outpost in District Collector, Chengalpattu Proceedings dated 03.11.1976.
Taking advantage of the fact that the necessary changes were not carried
out in the Revenue Records, the petitioner encroached the land and also
enjoyed unauthorized occupation of the Government land all these years.
Now, the petitioner claims it as a matter of right, which is illegal and
unlawful.
11. The District Collector, Chennai and the fourth respondent in
his Proceedings dated 08.05.2019 passed order for necessary changes to
be carried out in the Revenue Records. Therefore, necessary changes were
carried out in the current Town Survey Register and other connected
records and a copy of the same was communicated to the Home (Police)
Department. The above said land is under the control of the Police
Department and the same was covered with wired fence. There is proper
access to his shops through the road on the Eastern side and the petitioner
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has not only encroached the land and also enjoyed unauthorized
occupation the Government land all these years and not as if the petitioner
has no access to his shop from main road. The petitioner thoroughly
misleading the Court. The petitioner has not come to the Court with clean
hands. Therefore, he prayed to dismiss the writ petition.
12. The seventh respondent also filed counter affidavit in which
he reiterated the averments made in the counter filed by the sixth
respondent and in addition to that, they also stated that the possession of
the aforesaid police land was already handed over to the Police Department
on 23.11.1976 and now, after removal of encroachments, as per the orders
of the Division Bench of this Court dated 23.11.2018 and the above said
land was fenced for preventing future encroachments. Further, anticipating
the protest from the petitioner and his associates, while fencing, in order to
maintain the law and order, adequate Police strength was deployed at the
spot.
13. The petitioner also filed an undertaking affidavit before the
Division Bench of this Court in W.P.No. 3491/2018 to quit from the
subject land. Therefore, the petitioner has no locus-standi to file this Writ
Petition contra to his undertaking and more or less for the same relief. The
impugned order of the fourth respondent dated 08.05.2019 is nothing but a
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direction for incorporation of subject police land in the Town Survey
Register in correlation with the old Revenue records, which had been
mutated in the year 1976, as per the proceedings of the District Collector,
Kancheepuram, R.Dis. 122.428/76 B1, dated 03.11.1976 and the
petitioner, without challenging the aforesaid original proceedings
03.11.1976, cannot challenge the consequential order of the fourth
respondent, dated 08.05.2019 which is impugned order to challenge before
any Court of Law. The fourth respondent only directed to carried out in
the Revenue Records and entry of Police Department Poramboke now has
to be restored in the Town Survey Records of Ambattur Town and Taluk.
14. Further, it is stated that the petitioner has no locus-standi to
question the usage of the subject land by the Department. Since,
unfortunately the Police land was encroached by the petitioner and his
vendor, several lands were encroached by the petitioner and his vendor,
several attempts were made by the Revenue Authorities to remove the
encroachments, but the petitioner and his vendors forestalled the eviction
for about four decades by initiating several vexatious litigations before this
Court and other forum. Therefore, the Police Department is not in a
position to take possession and utilize the subject lands for public purpose.
Since the encroachments are now removed, the subject land was now
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protected by fencing and the same will be utilized for required public
purpose. The petitioner and his vendor illegally utilised the subject land
for about 40 years by adopting various methods, for his self enrichment.
In the same way, the petitioner is now making an attempt before this Court
by filing this petition for sanction to utilise the subject land by suppressing
the earlier rounds of litigations and by stating misleading information. If at
all the petitioner is aggrieved against the fencing put up in the police land
comprised in S.No. 320/2B of Padi Village and if the same causes
obstruction for access to his alleged Patta lands or the shops, the petitioner
is always at his liberty to work out the remedy before the appropriate
forum. Therefore, the writ petition filed by the petitioner is not
maintainable.
15. The ninth respondent who appeared in person had filed the
counter stating that the petitioner has wrongly projected the case, as if he
owns a Patta land at Door No.881/1-8 MTH Road, Padi, Chennai-600 050
and on account of the fence put up on the aforesaid Police land, the access
for his shops are obstructed. But, in contra, as per Survey Settlement
Register, the alleged Patta land of the petitioner comprised in S.No.1177 of
Korattur Village is originally registered as “Villagers” for communal usage
of public and later it was found to have been tampered with and fraudulent
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Patta was also issued to the petitioner and his vendor. However, based on
the complaints filed by father of the ninth respondent and one
Mr.Shanmugam, the Tahsildar, Ambattur has recommended for
cancellation of the aforesaid Town Survey Land Register entries mutated in
favour of the petitioner and recommended to restore back the original
classification “Villagers” in the Town Survey Land Records and sent his
report to the RDO, Central Chennai Division. But, unfortunately the RDO
who is in connivance with the petitioner, is not inclined to cancel the above
fraudulent Patta issued to the petitioner. Therefore, an appeal has been
preferred before the DRO, Chennai District for cancellation of the above
alleged Patta by the aforesaid complainant Mr.Shanmugam and it is
pending. Further, in the land use information provided by the CMDA in
CMA Master Plan 2026, the petitioner’s alleged Patta land was marked as
“Road” purpose land and the petitioner is also fully aware of the above
entire facts and it is further stated that the petitioner’s vendor
Mr.V.M.Chacko had originally constructed a commercial shopping
complex in the alleged Patta land by encroaching on the subject Police and
Revenue lands and thereafter, it was sold to the petitioner along with
various litigations. The petitioner and his vendor were utilizing the subject
shop buildings for their business purposes and not for access purposes.
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But, the petitioner and his vendor by adopting various dodging methods,
managed to stay on the subject Government lands for all those years by
forestalling the eviction proceedings initiated by the Government.
16. It is further stated that in the year 1980, the aforesaid
Mr.V.M.Chacko had put up unauthorized commercial shop building on the
alleged Patta land comprised in S.No. 1177 of Korattur Village, along with
the aforesaid Police and Revenue land. The aforesaid illegal shopping
complex was locked and sealed in the year 1980, before its inauguration
and eviction proceedings were also initiated for removal of the
unauthorized building on the aforesaid Police and Revenue land. However,
Mr.V.M. Chacko with his money and political power, managed to get
temporary lease for the encroached portion of the Police land of an extent
of 6 ½ cents in S.No.320/2B and Revenue land of an extent of 1 cent in
S.No.320/2C of Padi Village for a period of three years, vide aforesaid
G.O.Ms.No.841 and said lease had also got expired on 10.05.1991. But,
the aforesaid Mr.Chacko neither paid the lease rent, nor renewed the lease
on its expiry and therefore, again eviction proceedings were initiated by the
Revenue authorities. Since the subject land was encroached by way of
pucca shop building and was not kept vacant, there was no “easement by
necessity” as claimed by the petitioner. In this regard, even assuming that
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the shops were constructed on the absolute Patta lands comprised in
1177/1 part of Korattur Village and the said land has 30 feet access on the
eastern side namely Shanthi Nagar main road. Therefore, the petitioner’s
claim of easement rights over the subject Government land for the
unauthorized shopping complex, constructed on the alleged Patta land, is
utterly false and unsustainable.
17. Ninth respondent further stated that the petitioner earlier
made lease request which was rejected by the Tahsildar, Ambattur and the
petitioner has challenged said lease rejection order and eviction
proceedings before this court and had filed series of Writ petitions, viz.
W.P.No. 17525 of 2009, W.P.No. 19516 of 2009 and W.P.No. 19516 of
2009 and all were dismissed on 16.02.2010. The petitioner, by
suppressing the above facts, had repeatedly made lease attempts only to
forestall eviction proceedings and to utilize the land for his self-
enrichments as adopted by his vendor. Further, the suppression of the
above fact was also suspected by this court and vide order dated
16.03.2017 in W.P.No.6199/2017, directed the Registry to put up E.Bs
relating to the above dismissal order dated 16.02.2010 and further stated
that the petitioner failed to hand over the possession to the Government
within the due date. Therefore, the Revenue Authorities removed the
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encroachments with Police protection on 18.06.2018. However, even after
evicting the petitioner from the subject land on 18.06.2018, the petitioner
is still utilizing a portion of the subject and Revenue lands for access
purpose and the same is evident from his own representation dated
19.01.2019 in which he himself has admitted that he is utilizing the subject
lands for access purpose, which amounts to clear violation of his own
undertaking dated 15.03.2018 given before this court in the above
W.P.No.3491/2018 and hence, the petitioner deserves for grant of no relief
in the present writ petition and the proposed width of road widening is
only about 15 meters from the center point of the existing Road. Since the
original allotment of the subject land is for construction of Korattur Police
Out-Post and that the land left remained even after said expansion
proposal which would be more sufficient to meet the said purpose or such
other Department purpose and therefore, the petitioner need not worry for
the future Road expansion projects or other public purpose.
18. The petitioner himself has already filed an undertaking
affidavit dated 15.03.2018 before the Division Bench of this court in
W.P.No.3491 of 2018 to quit from the subject lands on or before
10.06.2018. But the petitioner failed to comply with his above undertaking
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and not removed the encroachments and handed over the possession of the
Government land within specified date. Therefore, as per the above order
of this Court dated 13.02.2018, the Revenue Authorities proceeded and
removed the encroachments made by the petitioner on 18.06.2018, with
the assistance of Police protection. Thereafter, in compliance of the
Division Bench order dated 23.11.2018 of this Court in W.A.No. 2559 of
2018 and in consonance to G.O.Ms.No.54, Revenue [LD2(1)] Department,
dated 23.02.2017, the subject land was protected by fencing by the Police
to prevent future encroachments. Further, it is an admitted fact by the
petitioner and his vendor and also traceable from various G.O’s,
Government communication letters and in Village Adangal that the subject
land in S.No.320/2B belongs to the Police Department. The petitioner
himself admitted the said fact in his objection letter dated 10.08.2016 sent
to the Revenue and Home Secretaries. But, due to the negligence of the
Revenue officials the name in the Revenue Records was removed for some
period of “Fasli years”. The petitioner with an ulterior motive, has sworn
this false information in his affidavit contrary to the records, only to
mislead this Court to get some favourable orders and also stated that the
petitioner himself was a party to the proceedings in G.O.Ms.No.308,
Revenue & DM Department, dated 21.09.2017 and has filed his objections
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to grant lease in favour of his wife Mrs.Sathiyabama, admitting that the
subject land belongs to Home Department and the said G.O. was also
served on the petitioner. But, the petitioner, at no point of time, has made
any objection or challenged the above G.O. in any proceedings. The reason
for not raising any objections by the petitioner to the above G.O. is that the
petitioner would have thought that the subject lands will be kept open and
vacant and it could be utilized for his business purpose, without any
objections. But unfortunately, as the subject land was protected by fencing,
the petitioner has rushed before this Court seeking removal of the fence put
up on the subject land under easement right. At this juncture, it is pertinent
to point out that either the petitioner or his vendor challenged the original
allotment of subject land to the Police Department, till date. The impugned
order of the fourth respondent is nothing but a direction for restoration of
Police Department is name in the Revenue Records and present Town
Survey Records, which had been erroneously removed from the records for
some years. However, based on the impugned order, the mutations have
been already effected and the Police Departments name was restored back
in the Revenue Records and therefore, the Writ Petition itself has now
become infructuous.
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19. Ninth respondent also submitted that the petitioner having
purchased the alleged Patta lands without any right, title and interest from
his vendor Mr.V.M.Chacko, with intention to grab the subject land and to
settle his title disputes, has repeatedly approaching this Court by way of
filing series of frivolous and vexatious Writ petitions, as adopted by his
vendor Mr.V.M.Chacko and thereby wasting the valuable of this court and
managed to enjoy the subject Government lands to their self-enrichments.
But, the four decades of legal battle has ended by order dated 13.03.2018
passed by this court in W.P.3491 of 2018 filed by the petitioner, himself
and ninth respondent had been impleaded as the fifth respondent in said
proceedings and he permitted to place the actual facts before the Court and
Writ petition got dismissed.
20. There is a Government Poromboke land classified as “Dry
Assessed Waste land of an extent of 38 cents S.No. 320/2 in Padi Village,
Ambattur Taluk, Chennai District, situated on the Southern side of the
aforesaid communal land of villagers Comprised in S.No. 1177 of
Koratttur Village. In this, an extent of 14 Cents was allotted for the
construction of Korattur Police Out-Post in the year 1976 by a Sub
Division of S.No.320/2B of Padi Village and Registered as “Police
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Department” poramboke in the Village Accounts. The balance land of an
extent of 22 cents, was Sub-Divided as 320/2C and registered “Dry
Assessed waste” land kept under the custody of the Revenue Department.
The lands of an extent of 6 ½ cents in S.No.320/2B and 1 cent in
S.No.320/2C, was encroached by the aforesaid Thiru.V.M.Chacko in the
year 1980 while constructing a Shopping complex in his aforesaid allaged
Patta in S.No.1177/1A of Korattur Village, containing 8 shops of various
litigations. The Government, having come to know about the aforesaid
encroachment made by Mr.V.M.Chacko, locked and sealed the aforesaid
shopping Complex, before its inauguration and also initiated eviction
proceedings and the petitioner's vendor Mr.Chacko, managed to obtain
lease of the aforesaid encroached portion of an extent of 7 ½ cents, vide
G.O. (Ms) No.841, Revenue (D1) Department, dated 11.05.1988 for a
period of three years. But the said Mr.V.M.Chacko neither paid nor
renewed his lease on its expiry and thereafter sold a portion of the lease
land along with his alleged Patta lands to the petitioner through Registered
Sale Deed. The Government, having come to know about the aforesaid
illegal transaction caused the Tahsildar, Ambattur to lodge a Police
Complaint and a case has also been registered in the file of Korattur Police
Station as CC No.667/2004 Dated 12.10.2004 under various provisions of
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IPC and had also subsequently initiated eviction proceedings against
Mr.V.M.Chacko and aggrieved by the aforesaid eviction proceedings
Mr.V.M.Chacko and the petitioner had filed several writ petitions and all
were dismissed.
21. Further, the petitioner made a fresh representation seeking
lease of the aforesaid Government lands in his favour, claiming
easementary right through the aforesaid subject land and Revenue land for
his aforesaid alleged Patta lands. But, the aforesaid lease request of
petitioner was rejected by the sixth respondent and subsequently, again
eviction proceedings were initiated against the petitioner. Aggrieved by the
aforesaid rejection of lease and eviction proceedings, petitioner filed series
of Writ Petitions Nos. 17525 of 2009, 19516 of 2009 and 19813 of 2009
and the Court dismissed all the aforesaid petitions, vide common order
dated 15.02.2010 and the petitioner by suppressing the aforesaid dismissal
of the Court order dated 15.02.2010, once again made a fresh lease request
to the Government. But, the Government has rightly rejected the aforesaid
request of the petitioner, vide G.O. (Ms) No.54 Revenue (LD 2 (1)
Department, dated 23.02.2017 as devoid of merits and ordered to resume
back the aforesaid Government lands and to protect the same. The
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petitioner, aggrieved by the aforesaid lease rejection G.O., has come before
this Court and earlier filed W.P.No.6199 of 2017 and it is pending. But,
pending disposal of the aforesaid W.P.No.6199 of 2017, the petitioner
submitted another representation to the Government seeking to grant the
land under the exchange of land scheme, which is a sheer abuse of process
of law. Thus, Mr.V.M.Chacko and the petitioner by adopting various
dodging methods, managed to forestall eviction for all these years and had
been illegally utilizing the aforesaid subject land along with Revenue land
for their self-enrichments.
22. Ninth respondent stated that in Writ Appeal No. 1437 of
2007 filed by Mr.Chacko, the Division Bench of this Court, vide order
dated 23.11.2007 dismissed the petition and observed that the alleged
Patta land S.No. 1177/1 pt of Korattur Village, has its path way on the
Eastern side for a width of 30 feet towards Shanthi Nagar and the claim of
subject land by Mr.Chacko for access purpose for his aforesaid alleged
Patta land in S.No.1177/1A was turned down. Further, it was also affirmed
from the typed set of papers filed by the petitioner at Page No. 183, in the
sketch of the alleged Town Survey Patta, the Eastern Side was mentioned
as T.S.No.63, which is nothing but 30 feet Shanthi Nagar Road and the
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petitioner is currently using this road to reach his alleged Patta land and
carrying on business activities, without any hindrance. The petitioner has
approached this Court and filed the Writ Petition by suppressing various
material facts and sworn false affidavit, as if the land in S.No. 1177 of
Korattur Village is a Patta and the aforesaid Police land comprised in
S.No.320/2B is the only access to said alleged Patta land. Further, the
prayer of the petitioner and his vendor seeking permission to use the
subject land for access purposes has been already rejected by various
judgments of this Court and orders of the Government. If the petitioner
actually deserves any easement right to his alleged Patta land, that could
be decided only by the Civil court and not this Court under Article 226 of
the Constitution of India. The Division Bench of this Court vide order
dated 13.03.2018 in W.P.No.3491/2018, has also rejected the aforesaid
specific request of the petitioner. Therefore, the present petition is hit by
the principle of res-judicata and the writ petition is not maintainable and
after removal of the encroachments on the Police land and Revenue land as
per this Courts order Dated 13.03.2018, the subject land was protected by
fencing on 16.05.2019 in compliance of the orders passed by this Court in
W.A.No.2559 of 2018, dated 23.11.2018 and the aforesaid G.O. dated
23.02.2017 to prevent encroachments. The aforesaid similar direction was
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also issued by this Court in an order dated 24.04.2019 in Cont.Pet.
No.2061 of 2017 and at present, the petitioner, along with the tenant, has
trespassed into subject land by mesh fence and cement post,
damaging/removing and erected a portion of wire and mesh fence and
cement post was also erected on the Police land on 25.09.2023 and they
are now illegally utilizing the same for their business purpose. In this
regard, the ninth respondent had lodged a written complaint with the
seventh respondent and as no action was taken, the ninth respondent
approached the Commissioner of Police, Avadi Commisssionerate and
lodged another complaint on 22.11.2023 and the seventh respondent was
instructed to take action on the petition of the ninth respondent. Thus, the
petitioner on one side has filed this present writ petition seeking for
removal of fence put up on the subject land for free access to his shops and
on other side, the petitioner himself indulged in the aforesaid illegal
activities and utilizing the subject land for his business purpose by abuse
of the process of law.
23. Further, it stated that the petitioner and his vendor
Mr.Chacko are rank encroachers and they have not only cheated the
Government but also this Court by filling repeated frivolous and vexatious
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Writ petition's to stay on the Government lands and enjoying the unlawful
benefits for about 40 years. However, the similar prayer of this Writ
petition for the subject land had been already dealt with by this Court in
several Writ petitions and all were dismissed viz. W.A.No.1437 of 2007,
W.P. 17525 of 2009, W.P.No.3491 of 2018 and W.A.No.2559 of 2018.
However, the petitioner having been aware of all the above facts is
repeatedly in line with earlier dodging methods and now filed this frivolous
and vexatious Writ petition and other two Writ petitions viz. W.P.No.6199
of 2017 and W.P.No.5380 of 2018 before this court for the same relief,
which is nothing but a smart attempt made by the petitioner to question the
aforesaid earlier orders passed by this Court and the petitioner by
suppressing the earlier rounds of litigations, has now filed this present writ
petition before this Court for a legal sanction to grab the Police land by
claiming easement any right for his self-enrichments. The petitioner has no
indefeasible right to seek for any allotment of the subject land for
commercial purpose, which admittedly belonged to the Government.
Finally, it is submitted that, the present Writ petition involves disputed
question of facts which are of civil nature and therefore, the Writ petition
is not maintainable under Article 226 of the Constitution of India.
24. The learned counsel for the petitioner submitted that the
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Government's land comprised in Survey No. 320/2B, measuring an extent
of 6.5 cents and 320/2C, measuring an extent of 1 cents, situated at Padi
Village, Ambattur Taluk is existing adjoining to the Patta land of the
petitioner. The petitioner purchased the said Patta land from one private
person, thereby for the sake of convenience and to get right of easement,
the petitioner was constrained to use Government land as access to the
shop of the petitioner. The petitioner made an application to the third
respondent on 22.03.2012 seeking to grant leasehold right, as there was no
action on the earlier application, based on which, the third respondent
directed the fourth respondent to take necessary action on the application
of the petitioner and to send a report. The fourth respondent also
conducted an inspection with the Revenue Divisional Officer and
forwarded a detailed report with assessing land cost by recommending the
lease to the petitioner. The first respondent, without considering all the
recommendation made by their subordinates, dismissed the application of
the petitioner. Aggrieved by the same, the petitioner filed Writ Petition in
W.P.No. 6199 of 2017 before this Court and the same is pending. The
sixth respondent initiated eviction proceedings and the order was passed
directing the petitioner to evict from the Government land on the ground
that the subject matter of the land is required for widening Highways of
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Chennai to Thiruvallur High Road and the Fourth respondent also
confirmed the said order vide its order dated 29.05.2018.
25. Aggrieved, by the same, the petitioner filed a Revision
before the First respondent under Section 10A (1-c) of the Act and the
petitioner also filed writ petition in W.P. No. 3491 of 2018, to direct to
pass order on the Revision and to forbear the authority to evict the
petitioners. The said Writ Petition was dismissed by this Court observing
that the petitioner can make application for request of the authorities for
grant of access to the shops and also hand over the vacant possession of
the Government Land. The petitioner also made a representation on
19.01.2019 to the third respondent requesting to provide access for his
shop enabling him to continue his business and the same is also pending
for consideration. On 08.05.2019, the fourth respondent passed the order
directing the sixth respondent to make entries in the Revenue Records to
the effect that the above said Government Land belongs to the Police
Department and the above said order is passed against their own records of
the Department and without any materials, they have only, in order to
forfeit the claim of the petitioner, had passed the impugned order, which is
illegal and arbitrary. Further, the main contention of the learned Counsel
for the petitioner is that the petitioner's Patta land is in between the
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Chennai to Thiruvallur Highways. The subject matter of land which
belongs to the Government is existing. The petitioner in order to reach the
shops from Chennai Thiruvallur Road had got any access through the
subject land and for the convenience as well as the easement of necessity it
has become absolute. They used the Patta land/shops of the petitioner. As
the subject land has to be utilised, the petitioner has not been asking free of
access or alteast they can give the land for lease. But however the official
respondents purposely evading to give clearance and therefore the present
writ petition is filed.
26. In support of his contentions, the learned counsel for the
petitioner also relied upon the following judgements of the Hon'ble
Supreme Court of India reported in (1965) 2 SCR 242 : AIR 1965 SC
1147 in the case of Municipal Board, Manglaur Vs. Mahadeoji
Maharaj,
reported in 1996-2-L.W.35 in the case of The Commissioner,
Panruti Municipality, Panrutii Vs. Sri Kannika parameswari Amman
Temple.
reported in 1996-2-L.W.35 in the case of The Commissioner,
Panruti Municipality, Panruti Vs. Sri Kannika Parameswari Amman
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Temple.
reported in 2012-5-L.W.770 in the case of State of Tamil nadu
& others Vs. D.Samiyathal.
reported in 99 L.W.182 in the case of Bharathamatha Desiya
Sangam, Madhavaram & another Vs. Roja Sundaram & 2 others.
reported in 1958-2-AII.L.R. 353 in the case of Govinda Asari
Vs. Kancheepuram Municipal Council.
27. Learned Government Advocate appearing for the official
respondents submitted that in the year 1976 itself, the land was allotted to
the Police Department, but one way or the other with interference of the
vendor of the petitioner there are long proceedings and the one way or
other order of allotment of the Government land, the Police Department
was not carried out in the Revenue Records and taking advantage of that
the petitioner's vendor and the petitioner initiating several proceedings and
however at last, they found that the Revenue Records were not carried out
by the earlier order of 1976, dated 03.11.1976 and the fourth respondent
has passed the order to carried out the necessary amendement. Further, the
petitioner’s vendor himself encroached the subject land and subsequently
he got a lease and lease also expired and the petitioner's vendor did not
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even pay the lease amount or vacated the property. Therefore, the
proceedings for eviction were initiated and the petitioner knowing fully of
the same, purchased the land with a litigation. He also enjoyed the land
and even without making any payment to the Government and earlier,
there was writ Petition filed by the third party and the petitioner also filed
a writ petition and eviction proceedings were also initiated and an order
was passed and right from the order by appropriate authority it attained
finality of this Court. Neither the vendor of the petitioner nor the petitioner
could succeeded it and now the petitioner has filed the present writ petition
as the other round of litigation in the other way. Therefore, the petitioner is
not entitled to get the relief and if at all the petitioner has got any
easementary right, he has to work out is remedy in the manner known to
law and the same cannot be dealt with by the Writ Court.
28. The ninth respondent who appeared in person submitted that
the petitioner has got the access to his land an the Eastern side of the land
and he has got access on the backside of his block. Even, the so-called
shops also were only constructed in the Villages for public purpose, but,
the vendors of the petitioner encroached that land and somehow they
managed with the Revenue Department and got the Patta and therefore,
Survey No. 1177 of Korattur Village is not a Patta land and however, even
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though they got the Patta now the Government also recoginsed their Patta
and the vendor is knowing fully that the subject land is Governement land,
which was allotted to the Police Department, without leaving any space he
constructed the shopping complex and he has got access on the other side
of the land and therefore, he cannot ask the land for his use and as a
matter of right he is not entitled to any right of easement of necessity. If at
all he has no other way to reach his land it is for him to work out the same
in the manner known to law. When he lost all his request either from the
Revenue Department or from the Authority under the Land Encroachment
Act and also all the other remedy, and now he has filed the present writ
Petition which is not maintainable and the petitioner's vendor and the
petitioner are land grabbers and they have suppressed the entire facts and
also the earlier rounds of litigation and the Government Poromboke land is
classifed as “Dry Assessed waste” land of an extent of 38 cents in
S.No.320/2 in Padi Village, Ambattur Taluk, Chennai District, situated on
the Southern side of the aforesaid commericial land of villages comprised
in Survey No.1177 of Korattur Village to an extent of 14 cents which was
allotted for the construction of Korattur Police out-post in the year 1976 by
a Sub-Division of S.No.320/2B of Padi village and registered as Police
Department Poramboke in the Village Accounts. The balance land of an
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extent of 22 cents was sub divided as S.No. 320/2C and registered “Dry
Assessed Waste” land kept under the custody of the Revenue Department.
The lands of an extent of 6 ½ cents in S.No. 320/2B and 1 cent in
S.No.320/2C was encroached by the vendor of the petitioner, V.M.Chacko
in the year 1980, while constructing a shopping complex in his aforesaid
alleged Patta in S.No. 1177/1A of Korattur Village, containing 8 shops
with various litigations. The Government, having come to know about the
aforesaid encroachment made by V.M.Chacko, locked and sealed the
aforesaid shopping complex, before its inauguration and also initiated
eviction proceedings. The petitioner's vendor Mr.V.M.Chacko had
managed to obtain lease of the portion of an extent of 7 ½ cents on
11.05.1998 for a period of three years. The Vendor of the petitioner neither
paid the lease amount nor renewed his lease on its expiry and thereafter, he
sold a portion of the lease land along with the alleged Patta land to the
petitioner through Registered Sale Deed. The Government having come to
know about the aforesaid illegal transaction, caused the Tahsildar,
Ambattur to lodge a Police complaint and a case was also registered on the
file of Korattur Police Station in C.C.No.667/2004 dated 12.10.2004 under
various provisions of IPC and subsequently eviction proceedings were
initiated against the vendor of the writ petitioner and aggrieved by the
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aforesaid eviction proceedings, the vendor filed a several writ petitions and
they were all dismissed. Knowing fully that the petitioner also purchased
the land with the litigation he also filed a writ petition and also faced
eviction petition and he lost all his rights. Now, the petitioner has not come
to the Court with clean hands but with ulterior motive to grab the
Government land, he has filed the petition. Therefore, this Writ Petition is
liable to be dismissed.
29. Heard and perused the records. Admittedly the land in
Survey No. 320/2B of an extent of 5 ½ cents and also Survey No. 320/2C
of an extent of 1 cents, is Government land, which is adjacent to the
petitioner's Patta land. In between the petitioner's shopping complex and
the Chennai Thiruvallur road, the subject matter of land is existing and
according to the petitioner, in order to reach shops from Chennai to
Thiruvallur Road, the subject land is essential and for reaching their shop,
there is no other way and therefore, for convenience and easement of
necessity, the said land is required for him. Now, the respondents have
acquired the land and put up the fence also and the petitioner is not able to
use that shops which is abutting the subject land and therefore atleast five
feets are required and they can remove the fencing and also to keep the
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minimum width of the land to reach the transport to use their shops for
commercial purpose. But the fact remains that the petitioner purchased the
land from one V.M.Chacko the vendor of the petitioner who encroached
the land and subsequently he also entered into the lease for three years.
But after three years, neither he extended nor renewed the lease period.
However, he used the land without payment of rent. Therefore, he was
named to be an encroacher and the eviction proceedings were initiated
under the Tamil Nadu land Encroachement Act, right from the appropriate
authority to this Court. He fought with that and lost his right and
ultimately the Police Department has taken possession of the land. As far
as the impugned order is concerned, accordingly to the authority, in 1976
itself, the subject land was allotted to the Police Department and to
construct the Police Station out-post. However, from 1976, till the
impugned order is passed the land was not mutated in the name of the
Police Station and taking advantage of that, the vendor of the petitioner
and subsquently vendor had created so many litigations and they had lost
and therefore, now the land is mutated in the name of the Police Station as
ordered in the year 1976.
30. One of the main contention of the Writ petitioner is that the
reason for eviction is that the land was required for expanding the
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Highways road of Chennai to Thiruvallur. But whereas, now they have
stated that it was allotted to the Police station and therefore, Revenue
Records were mutated in the name of Police Station which is against the
public policy and it is also arbitrary and therefore the impugned order has
to be set aside. On a perusal of the records, it is seen that the land was
already even in the year of 1976 itself, allotted to the Police Department to
construct a Police Station out-post. But however the mutation was not
effected and the objection was made. Even in the counter affidavit filed by
all the respondents, it is clearly stated that the District Collector,
Kancheepuram vide R.Dis. 122.428/76 1B dated 13.11.1976, allotted the
land to the Police Department on 23.11.1976 and therefore, now after
removal of encroachment and also the order of the Division Bench of this
Court dated 23.11.2018 and the petitioner was evicted from the place and
possession was taken over and the mutation also has been effected. Now,
the petitioner has not challenged the order dated 03.11.1976. He has only
challenged the impugned order said to have been passed by the fourth
respondent on 08.05.2019. One of the objections is that there is a proper
access to his shop through the Road on the Eastern side. Therefore, he
cannot claim the right of convenience or easement of necessity. The
petitioner encroached the land and unauthorisedly occupied the land.
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31. Now, as stated by the petitioner himself and also the
respondents the land has been recovered from the petitioner and handed
over to the Police Department. The mutation was also effected now by
putting up the fence on a reading of the entire materials, it is clear that the
petitioner has not come to the Court with clean hands and he has
suppressed several material facts and also the petitioner had knowing
fully, had purchased the property and further the petitioner has also
alternative way to reach the shop and further, though the petitioner's
counsel has stated that the petitioner has got every right of access from the
main road to his Patta land. But, however if the private land is abutting to
the street or public road, the person who has got the land abutting to the
road has got right to access. Whereas, in this case the petitioner himself
admitted that in between the Chennai Thiruvallur Road and his Patta land,
namely the shop, there is the land comprising an extent of 6 ½ cents
belongs to the Government which was alloted to the Police Department for
constructing Police Station out-post way back 13.11.1976 itself.
Therefore, the petitioner is not entitled to any access through the disputed
land, if at all the petitioner has no other way and he is entitiled for the
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easement of necessity for which he has to prove severance of tenaments
and no other alternative way to reach his shops. For which, the petitioner
has to approch the Competent Civil forum and work out his remedy in the
manner known to law and not by way of writ petition for easement of
necessity for reaching the land. It requires pleading and oral and
documentary evidence and only based on that, the Court can arrive at a
conclusion. Whether the petitioner is entitiled for any right of easement of
nessessity or not, the Writ Court cannot decide the same and therefore,
while excersing the extraordinary jurisdiction under Article 226 of the
constitution. On a perusal of the entire records, this court finds that the
petitioner has not approched the Court with clean hands as he had
suppressed the material facts and he also tried earlier round of litigations
and he lost it. Even his vendor also earlier tried and he failed to achieve
his goal. Now, the petitioner has filed the present writ petition. As far as
the utilisation of the disputed land is concerned as already the respondents
have clearly stated that in the year 1976 itself, the land was allotted to the
Police department and so far, the petitioner has not challenged the same.
Based on the same, through the impugned order, the mutation has also
been effected and therefore the petitioner is not entitled to the relief as
sought for in this writ petition.
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32. The Citations referred to by the learned counsel for the
petitioner are not applicable to the present case on hand and the facts and
circumstances of those cases are distinguishable to the facts and
circumstances of the present case on hand.
33. Therefore, for all the reasons stated above, this Writ petition
is dismissed and consequently connected miscellaneous petition is closed.
No costs.
22.12.2023
nsl
Index:Yes/No
Speaking Order : Yes/No
Neutral Case Citation: Yes/No
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To
1. The Secretary to the Government of Tamil Nadu,
Revenue Department,
Fort St. George, Chennai – 600 009.
2. The Secretary to the Government of Tamilnadu,
Home Department,
Fort St. George, Chennai – 600 009.
3. The Commissioner,
Land Administration Department,
Ezhilagam, Chennai -600 005.
4. The District Collector,
Chennai District,
Singaravelar Maaligai,
Rajaji Salai, Chennai - 600 001.
5. The Joint Commissioner of Police,
West Zone,
Ambattur, Chennai - 600 053.
6. The Tahsildhar,
Ambattur Taluk,
Ambattur, Chennai – 600 053.
7. The Inspector of Police,
T3, Korattur Police Station,
Chennai – 600 080.
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P. VELMURUGAN, J.
nsl
Pre-Delivery order
and
Order pronounced on 22.12.2023
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