Madras High Court
A. John Peter vs The District Collector on 31 July, 2023
2023:MHC:3556
WP.Nos.13875 of 2022 etc. batch
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 31.07.2023
Coram:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
AND
THE HONOURABLE MR.JUSTICE K.RAJASEKAR
WP.Nos.13875, 13644, 13657, 13652, 13653, 13660, 13648, 13670, 13676,
13673, 13679, 13672, 13681, 13680, 13682, 13684, 13686, 13688, 13692,
13695, 13696, 13698, 13718, 13727, 13724, 13729, 13732, 13871, 13873,
13884, 13876 and 13880 of 2022
and W.M.P.Nos. 12911, 12888, 12893, 12896, 12898, 12903, 12932,
12930, 12926, 12936, 12938, 12941, 12939, 12945, 12942, 12949, 12943,
12955, 12960, 12964, 12967, 12997, 13022, 13016, 13011, 13015, 13145,
13148, 13150, 13141, 13138 and 13140 of 2022
and Cont.P.No.320 of 2021
W.P.No.13875 of 2022:
A. John Peter ... Petitioner
Vs.
1.The District Collector, Cuddalore District,
Cuddalore.
2.The Assistant Engineer,
National Highways Department,
Neyveli Section,
Virudhachalam Sub division,
Cuddalore District.
3.The Tahsildar, Virudhachalam Taluk,
Cuddalore District.
.... Respondents
https://www.mhc.tn.gov.in/judis
WP.Nos.13875 of 2022 etc. batch
Prayer: Petition filed under Article 226 of the Constitution of India to issue a
Writ of Certiorari calling for the entire records connected with the impugned
notice in Ka.No.24/2022/A.E., dated 25.05.2022 issued by the second
respondent and quash the same.
For Petitioner in all Writ Petitions : Mr.V.Abel Jenish
For Respondents in all Writ Petitions: Mr.A.Selvendran,
Special Govt. Pleader
For Petitioner in Contempt Petition : Ms. M.Janani
For Respondent in Contempt Petition: Mr.A.Selvendran
Special Government Pleader
COMMON ORDER
(Order of the Court was made by S.VAIDYANATHAN,J.)
The present Writ Petitions have been filed challenging notice dated
25.05.2022 issued by the second respondent, Assistant Engineer, National
Highways Department directing the petitioners to remove the encroachment
made in S.No.271 Romapuri Village, Cuddalore District as the same belongs
to the National Highways Department.
2. The main contention of the petitioners is that they are occupying
various portions of land in S.No.271 Romapuri Village, Cuddalore District
and that they are eking their livelihood by doing work on daily wage basis.
3. On account of a private dispute between the parties, complaints and
counter complaints were made culminating in the filing of a Writ Petition in
https://www.mhc.tn.gov.in/judis
WP.Nos.13875 of 2022 etc. batch
W.P.No.8180 of 2019 by one A.K.Mumtaj Begum before this Court seeking
removal of the encroachment made by one Viswanathan, arrayed as R3 in
W.P.No.8180 of 2019. As a result, the District Collector has issued notice
dated 12.07.2021, which was challenged by the said D.Viswanathan in
W.P.No.21436 of 2019.
4. The aforesaid Writ Petitions came to be disposed by this Court by a
common order dated 14.02.2020 directing the Assistant Engineer, National
Highways, Vridhachalam, Cuddalore District to conduct enquiry and survey
the lands in the presence of both parties as well as R4 in W.P.No.8180 of
2019. It was also directed that if found that there were encroachments, the
same should be removed within a period of twelve weeks from date of receipt
of a copy of that order.
5. In compliance with the aforesaid direction notice was issued
directing the parties to remove the encroachment. The said notice was
challenged before this Court in W.P.No.23238 of 2021 by the said
Viswanathan on the ground that the same had been issued without conducting
survey and enquiry as per the directions of this Court in W.P.Nos.8180 and
21436 of 2019.
6. While recording the submission of the learned Additional
Government Pleader that 36 persons have encroached the property in
https://www.mhc.tn.gov.in/judis
WP.Nos.13875 of 2022 etc. batch
S.No.217 of Romapuri Village, this Court disposed W.P.No.23238 of 2021
vide order dated 22.11.2021 directing the Tahsildar, Vridhachalam to cause a
survey in the presence of the parties occupying S.No.217 of Romapuri Village
and remove all encroachments in the said survey number in accordance with
law within a period of six months from date of receipt of a copy of that order.
7. Pursuant to the aforesaid directions of this Court in W.P.No.23238
of 2021, the impugned notices came to be issued to the petitioners, challenged
in these Writ Petitions.
8. Learned counsel for the petitioners submit that when the petitioners
are continuing their habitation for a long time in the said survey number,
without considering their livelihood, source of income and providing an
alternate site, issuance of notice is bad. He further submits that a detailed
enquiry has got to be conducted in terms of Section 26 of the Tamil Nadu
Highways Act, 2001, which has not been done in this case.
9. He also submits that in light of the judgment of the Hon'ble Supreme
Court in the case of Gunasekaran V. Divisional Engineer, National
Highways and others (2021 10 SCC 505), as followed by this Court in the
case of R.Mohan V. Assistant Divisional Engineer, National Highway,
(2022 SCC online Madras 1502) , the authorities under the National
Highways Act, 1956 alone has got jurisdiction to deal with the encroachment
https://www.mhc.tn.gov.in/judis
WP.Nos.13875 of 2022 etc. batch
meant under the National Highways and not the authorities under the State
Highways Act. Hence, he submits that the impugned notices will have no legs
to stand as there is a reference to the State Act in the impugned notices.
10. Per contra, learned Special Government Pleader would submit that
in compliance with the orders passed by this Court the authorities under the
National Highways Department have issued the impugned notices and hence
there is nothing untoward in the said notices.
11. Heard the learned counsel on both sides and perused the materials
placed before us.
12. A perusal of the cause title and the affidavits filed in support of the
Writ Petitions clearly shows that the relief sought for by the petitioners is as
against the National Highways Department only and according to the
petitioners it is only the Assistant Engineer, National Highways Department
has issued the notices. Merely because in the impugned notice a reference has
been made to the State Highways Act the subject column will not render the
impugned notices bad in law. That apart, it is an admitted case that the
petitioners are encroachers.
13. Furthermore, the decisions cited by the petitioners have not been
applicable to the facts of the present case. In the aforesaid decisions, the
notice had been issued under the provisions of the State Act, which is not in
https://www.mhc.tn.gov.in/judis
WP.Nos.13875 of 2022 etc. batch
the present case. In the present case, the notice has been issued by the
National Highways Department only.
14. Furthermore, in the orders passed by this Court in the earlier round
of litigation, no direction was given to the authorities for providing an
alternate site to the petitioners and it was only a direction to cause survey and
enquiry, whether there is any encroachment. This Court also recorded the
submission of the then learned Government Pleader that there were 36
encroachments in the said survey number, which has not been denied by the
petitioners. Hence, in compliance with the directions issued by this Court, the
present impugned notices have been issued.
15. In light of the aforesaid narration, we are of the view that there is no
error on the part of the National Highways Authority in issuing the impugned
notices. When it is an admitted case that the petitioners are encroachers,
following of procedure under Section 26 as stated by the petitioners may not
be necessary. However, we leave it to the authorities to take such a decision.
16. We make it clear that no encroacher be permitted to squat on the
Government property, more so in the National Highways Property. A Hon'ble
Division Bench of this Court, while dealing with the issue of removal of
unauthorized developments in the case of M/s.Karur District, Vengamedu,
Kongu Nagar Residents Welfare Association, Karu [W.P.(MD) No.2895 of
https://www.mhc.tn.gov.in/judis
WP.Nos.13875 of 2022 etc. batch
2011] dated 04.04.2016, had issued the following directions:
“27. Hence, the writ petition is disposed of with the
following directions:
(i) A Committee comprising of a Joint Director of Town
and Country Planning, nominated by the first respondent, a
Revenue Divisional Officer nominated by the second respondent
and an officer of the rank of Assistant Director of Survey and
Land Records, nominated by the second respondent, is hereby
constituted.
(ii) Within two weeks of receipt of a copy of this order, the
first respondent shall nominate an officer of the rank of
Director of Town and Country Planning, who has a track record
as an officer of high integrity. Similarly, the second respondent
District Collector shall also nominate an officer of the rank of
Revenue Divisional Officer and an officer of the rank of
Assistant Director of Survey and Land Records within two weeks
of the receipt of the copy of this order.
(iii) The Committee so constituted shall take into
possession, within two weeks of the constitution, all the records
available in the offices of the respondents 1 to 3 or in the offices
of any one of the Assistant Directors or Deputy Directors of
Town and Country Planning, which relate to the layout in
question.
(iv) Thereafter, the Committee shall conduct a local
inspection of the lands in S.F.Nos. 135, 136, 137, 138, 140, 141,
146, 151, 152, 153, 154, 155 and 160 in Vengamedu region,
Inam Karur Town, Karur District with the help of
Town/Municipal Surveyors, Village Administrative Officers and
Revenue Inspectors and submit a report.
(v) The report shall indicate
(a) the lands earmarked for public purposes as per the
approved layout
(b) the details of lands sold by the promoters/original
owners, from out of the lands earmarked for public purposes
(c) the details of persons, who have purchased the lands
(d) the details of buildings constructed at such lands
along with an indication whether building plan approvals have
been obtained or not
https://www.mhc.tn.gov.in/judis
(e) the details of the elected representatives of the third
WP.Nos.13875 of 2022 etc. batch
respondent Municipality, who have purchased lands in their
own names or in the names of their close relatives and the
details of construction put up by them
(vi) The report as indicated above shall be submitted by
the Committee within a period of three months from the date of
constitution of the Committee
(vii) Till the Committee submits its report, the concerned
Sub-Registrar/District Registrar shall not allow registration of
any documents relating to the lands in the above survey
numbers, unless the Committee issues a no objection certificate
that such a land does not form part of the land earmarked for
public purposes
(viii) Till the Committee files its report, the Municipality
shall not accord any building plan approval, on the land
earmarked for public purposes, except with a no objection
certificate issued by the Committee
(ix) Till the Committee submits its report, no electricity
connection shall be given to the buildings that have come up
recently on the lands earmarked for public purposes and
(x) The third respondent Municipality is also injuncted
from granting regularization to unauthorized constructions and
the constructions put up on the lands earmarked for public
purposes.
17. A Division Bench of Madurai Bench of Madras High Court in the
case of K.K.Ramesh vs. State and others [W.P.(MD) No.22163 of 2018]
decided on 28.01.2019 has issued interim directions to the Chief Secretary
with respect to the removal of encroachments,
“7. Be that as it may, the Comptroller and Auditor
General of India in the Report No. 8 of 2017 for the year
ended March, 2017, relating to the General and Social Sector
in the Government of Tamil Nadu, has submitted a Report in
terms of Article 151(2) of the Constitution of India, 1950. In
the said Report, it has been highlighted that the system
envisaged in the TNPTEE Act to protect the tanks from
encroachments did not help in protecting the tanks as the
Water Resources Department did not fix boundaries for all the
https://www.mhc.tn.gov.in/judis
WP.Nos.13875 of 2022 etc. batch
water bodies through survey, which was the first step in
prevention of encroachments and eviction of already existing
encroachments. Having due regard to the fact that 49% of the
total objectionable encroachments in the State were on water
bodies, it has been recommended in that Report that inasmuch
as the TNPTEE Act had inherent limitations as it did not cover
encroachments on smaller irrigation tanks and Ooranis
(traditional water bodies) created to harvest rain water for
drinking and other purposes, the Government may consider
bringing rivers, streams, tanks, ooranis, etc., under the
purview of the TNPTEE Act and ensure a time bound survey of
all water bodies. Further, in order to overcome the
coordination issues between the Water Resources Department
and the Revenue Department in surveying the water bodies, it
has been expressed that the Government may consider
creation of survey units in Water Resources Department
Divisions / Circles, in line with similar survey units functioning
in urban local bodies.
8.Despite the aforesaid Statutory Provisions, Court
Directions and Report of the Constitutional Authorities, no
tangible headway appears to have been made in the process of
fully evicting the encroachers from their illegal occupation of
the water bodies. As such, the situation has become imperative
for this Court to take up the task of monitoring the eviction of
the encroachers from the water bodies. As a first step in that
regard, we issue the following directions:-
(i) The Chief Secretary to the Government of Tamil
Nadu shall file a Report of action taken by the
Government of Tamil Nadu on the recommendations
for rectification of the shortcomings in the process of
eviction of encroachments on water bodies indicated in
the Report No. 8 of 2017 of the Comptroller and
Auditor General of India for the year ended March,
2017, by 11.02.2019;
(ii) The Collectors of their respective Districts in the
State shall prepare a list of lands identified as water
bodies in their revenue records and send copies of the
https://www.mhc.tn.gov.in/judis
WP.Nos.13875 of 2022 etc. batch
same to the Officers of the Registration Department,
the Tamil Nadu Generation and Distribution
Corporation Limited (TANGEDCO), the Local Bodies
and the District Election Officers in their respective
Districts by 08.02.2019 and file an action taken report
before this Court by 11.02.2019;
(iii) The Chief Secretary, Government of Tamil Nadu
shall, after collecting necessary data from the
concerned Departments and Collectors of the various
Districts, file a Report showing the list of water bodies
as found in the revenue records of the State by
11.02.2019;
(iv) No registering authority under the Registration
Act, 1908, shall henceforth register any document in
respect of any land which has been notified as water
body in the revenue records of the State and the
Inspector General of Registration, Government of
Tamil Nadu shall issue necessary circular to all the
Registration Officers in the State for ensuring
compliance in this regard by 11.02.2019;
(v) No electricity connection shall henceforth be
provided to any building in any land which has been
notified as water body in the revenue records of the
State and the Chairman-cum- Managing Director,
TANGEDCO shall issue necessary circular to all its
officers authorised to grant electricity connection for
ensuring compliance in this regard by 11.02.2019;
vi) No water connection shall henceforth be provided
to any building in any land which has been notified as
water body in the revenue records of the State and and
the Principal Secretaries of Municipal Administration
Department and Rural Development and Panchayat
Raj Department shall issue necessary circular to all
the urban and rural local bodies in the State for
ensuring compliance in this regard by 11.02.2019;
https://www.mhc.tn.gov.in/judis
WP.Nos.13875 of 2022 etc. batch
(vii) No approval shall henceforth be given for any
construction of any building and no building shall be
assessed for property tax, by any local body in any
land which has been notified as water body in the
revenue records of the State and the Principal
Secretaries of Municipal Administration Department
and Rural Development and Panchayat Raj
Department shall issue necessary circular to all the
urban and rural local bodies in the State for ensuring
compliance in this regard by 11.02.2019;
(viii) No person shall henceforth be included in the
voters list for the election, if the residence claimed by
such person is in any land, which has been notified as
water body in the revenue records of the State and the
Chief Election Officer of the State shall issue necessary
circular to all the authorities involved in that process
in the State for ensuring compliance in this regard by
11.02.2019; and
(ix) The Report of the action taken by all the
authorities indicated supra, shall be filed before the
Registrar (Judicial) of this Court by 13.02.2019.
9. We are fortified in issuing these interim directions by
the decisions of the Division Bench of this Court in Elephant
G.Rajendran -vs- Chief Secretary (Order dated 09.09.2016 in
W.P.No.219566 of 2015) and the Hon'ble Supreme Court of
India in Sunil Kumar Kori -vs- Gopal Das Kabra (Order dated
27.09.2016 in Civil Appeal Nos. 9728 and 9729 of 2016). It is
needless to add here that citizens, who have acted in violation
of their fundamental duty under Article 51-A(g) of the
Constitution of India, 1950, to protect and improve the natural
environment including lakes and rivers, cannot be heard to
complain of deprivation of any fundamental right till their
purge from their unconstitutional acts.”
18. This Court, in the case of V.B.R.Menon V. State of Tamil Nadu
and others (W.P.No.13648 of 2016 dated 29.04.2019) while dealing with the
https://www.mhc.tn.gov.in/judis
WP.Nos.13875 of 2022 etc. batch
issue regarding encroachment of property obstructing the water channels in a
Public Interest Litigation, held as follows:
29. Though there is an Act called, 'The Tamil Nadu
Protection of Tanks and Eviction of Encroachment Act,
2007' (Act 8 of 2007) for checking and eradication of the
encroachment, eviction of encroachment in tanks which are
under the control and management of Public Works
Department, the Officials convert the said Act a
meaningless one, as they are hand in glove with the
violators. In fact, the Comptroller and Auditor General of
India, in his Report No.4 of 2017 had strongly
recommended for framing stringent laws to fix
responsibility on the officials responsible for non-
enforcement of the provisions of the said Act in identifying
and eviction of encroachments of any nature. It was also
recommended that CMDA should stop issuing conditional
approvals for layouts and buildings along water bodies.
30. It is pertinent to note that the First Bench of this
Court (S.K.Kaul,C.J., and R.Mahadevan,J.) in Contempt
Petition No.1769 of 2015 and Contempt Petition No.2166
of 2015 (Suo motu), while dealing with a matter pertaining
to demolition of the violated portions of a building and
decimation of the unauthorised constructions, held as
follows:
''4. We have also perused the report of
the Commissioner, who is present in Court.
We have impressed upon him the importance
of ensuring that there is atleast no continuing
unauthorised construction by issuing stop
work notices immediately when such
unauthorised construction is detected rather
than waiting for comparison of the plans. We
have also emphasised the importance of:
(a) Checking the buildings from the
basement, ground floor onwards, so that the
set backs are adhered to;
https://www.mhc.tn.gov.in/judis
WP.Nos.13875 of 2022 etc. batch
(b) Ensure that the on-going
construction complies with the norms;
(c) The delinquent officers are
brought to book not by mere censure,
stoppage of increment, but by more severe
consequences like compulsory retirement
and dismissal from service. We say so, as
despite, mammoth amount of unauthorised
construction, we are informed that not a
single person has suffered the punishment of
dismissal from service or even compulsory
retirement atleast for the last five years.
(d) Not to let any unnecessary
interference with his work by the persons,
who have nothing to do with his job and that
he should be able to do his task without fear
or favour, for which necessary Court
protection is available.”
19. In view of the principle laid down in the aforesaid judgments, no
encroachment is permissible.
20. In the result, these Writ Petitions are dismissed. No costs.
Connected Miscellaneous Petitions are also dismissed.
21. Contempt Petition No.320 of 2021 is filed alleging contempt as
against the officials in implementing the order passed by this Court dated
14.02.2020 in W.P.Nos.8180 and 21436 of 2019.
22. In view of the fact that there is an order of stay operating against
the respondent officials in proceeding with the matter, we are of the view that
there is no wilful and deliberate disobedience of the order of this Court. That
https://www.mhc.tn.gov.in/judis
WP.Nos.13875 of 2022 etc. batch
apart, a Division Bench of this Court, on 14.02.2020 in W.P.Nos.8180 and
21436 of 2019 has categorically directed the Assistant Engineer, National
Highways to conduct enquiry, survey the land and issue notices to the parties
concerned and thereafter remove the encroachment in accordance with law
within a period of twelve weeks from date of receipt of a copy of that order,
which has been complied with vide impugned notices in the Writ Petitions.
23. We make it clear that in case of inaction by the officials,
disciplinary action for major misconduct to be initiated and major punishment
to be imposed, if charges are proved and the same shall be entered in the
service records.
24. In light of the above, Contempt Petition is closed. No costs.
(S.V.N.,J) (K.R.S.,J)
31.07.2023
Index: Yes/No 2/2
Speaking/Non-speaking order
Neutral citation:Yes/No
sl
To
1.The District Collector, Cuddalore District, Cuddalore.
2.The Assistant Engineer,
National Highways Department,
Neyveli Section,
Virudhachalam Sub division,
Cuddalore District.
3.The Tahsildar, Virudhachalam Taluk,
Cuddalore District.
https://www.mhc.tn.gov.in/judis
WP.Nos.13875 of 2022 etc. batch
S.VAIDYANATHAN,J.
AND
K.RAJASEKAR,J.
Sl
WP.Nos.13875, 13644, 13657, 13652, 13653,
13660, 13648, 13670, 13676, 13673, 13679,
13672, 13681, 13680, 13682, 13684, 13686, 13688,
13692, 13695, 13696, 13698, 13718, 13727, 13724,
13729, 13732, 13871, 13873, 13884,
13876 and 13880 of 2022
and W.M.P.Nos. 12911, 12888, 12893,
12896, 12898, 12903, 12932, 12930, 12926,
12936, 12938, 12941, 12939, 12945, 12942, 12949,
12943, 12955, 12960, 12964, 12967, 12997, 13022,
13016, 13011, 13015, 13145, 13148, 13150, 13141,
13138 and 13140 of 2022
and Cont.P.No.320 of 2021
31.07.2023
https://www.mhc.tn.gov.in/judis
