Madras High Court
Kuppamanthri vs The Collector on 2 March, 2023
W.P.No. 6105 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.03.2023
CORAM
THE HON'BLE MR.JUSTICE S. VAIDYANATHAN
AND
THE HON'BLE MRS. JUSTICE R. KALAIMATHI
W.P. No. 6105 of 2023
Kuppamanthri ..Petitioner
Vs.
1. The Collector,
Vellore District, Vellore.
2. The Revenue Divisional Officer,
Collectorate, Sathuvatcheri,
Gudiyatham, Vellore District.
3. The Thasildar,
Gudiyatham Taluk,
Vellore District.
4. Mahalingam ..Respondents
Prayer: Petition under Article 226 of the Constitution of India praying
for issue of a Writ of Mandamus directing respondents 1 to 3 to consider
petitioner's representation dated 09.12.2022 and consequently direct
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respondents 1 to 3 to remove the encroachments in the odai poramboke in
S.Nos. 207, 209, 218, 293, 294, 295, 589 in Kallapadi Village, Gudiyatham
Taluk, Vellore District.
For Petitioner :: Mr.S.N. Subramani
For Respondents :: Mr.P. Muthukumar,
State Govt. Pleader
assisted by
Mr.P. Balathandayutham,
Special Govt. Pleader
ORDER
S. VAIDYANATHAN,J.
AND
R. KALAIMATHI,J.
The present writ petition is filed for issue of a Writ of Mandamus
directing respondents 1 to 3 to consider petitioner's representation dated
09.12.2022 and consequently direct respondents 1 to 3 to remove the
encroachments in the odai poramboke in S.Nos. 207, 209, 218, 293, 294,
295, 589 in Kallapadi Village, Gudiyatham Taluk, Vellore District.
2. According to the petitioner, he is residing in Kallapadi Post,
Gudiyatham Taluk and doing agricultural works in S.Nos. 211 & 213 in
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W.P.No. 6105 of 2023
Kallapadi Village. The petitioner would further state that there was an
earlier direction by this Court in W.P. No. 23830 of 2022, which was filed
by the 4th respondent herein, to verify whether there exists any
encroachments on odai poramboke and malai poramboke in S.Nos. 211 &
213 and if so, to take action to remove the same by due process of law.
According to the petitioner, though several persons including the 4th
respondent have encroched several acres of land in the odai poramboke in
S.Nos. 207, 209, 218, 293, 294, 295, 589 in Kallapadi Village, respondents
1 to 3 did not measure and remove all the encroachments as per the order of
this Court in W.P. No. 23830 of 2022 and further, the grievance of the
petitioner is that no action has been taken against the 4th respondent, who is
also an encroacher. The petitioner's representation dated 09.12.2022
seeking to remove the encroachments in S.Nos. 216/1, 216/3 in Kallapadi
Village is pending with the official respondents. Hence, the present writ
petition with the prayer aforesaid.
3. From the pleadings of the petitioner, it appears that not only he
is an encroacher, but the 4th respondent, who filed W.P. No. 23830 of 2022
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is also an encroacher.
4. This Court, in W.P. No. 23830 of 2022, has given the following
directions, while disposing of the writ petition on 07.09.2022:
"3. In view of the submission made by the learned
Additional Advocate General, this writ petition is disposed of
with a direction to the respondents 1 and 2 to first verify
whether there exists any encroachment on the odai
poramboke malai poramboke in S.Nos. 211 and 213 and if
encroachment isfound therein, to remove it after taking the
process given under the law. The action for it would be
initiated within a period of one month. If required, the
respondents may even cause survey of the land and the
exercise would be completed within three months thereupon,
if any encroachment is found. Subject to the aforesaid
exercise, the further decision may be taken for the pathway,
but it would be subject to the revenue records and
availability of land for it."
5. Mr.P. Muthukumar, learned State Government Pleader would
submit that this Court had already passed an order on 07.09.2022, extracted
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W.P.No. 6105 of 2023
supra and that whoever is in illegal occupation of odai poramboke and malai
poramboke will be identified and a survey will be conducted based on
revenue records and other relevant documents in the presence of parties
concerned.
6. In the light of the above submission made by the learned State
Government Pleader, the writ petition is disposed of with a direction to
respondents 1 to 3 to complete the exercise of conducting survey based on
revenue records within a period of eight weeks from the date of receipt of a
copy of this order. While passing orders, the propositions laid down in the
following judgments shall be strictly taken into account by the authorities
concerned and a decision shall be taken after affording an opportunity to all
the parties, who are likely to be affected including the complainant:
(i) Priyanka Estates International Pvt. Ltd. v. State of Assam,
reported in (2010) 2 SCC 27, wherein the Supreme Court declined
the appellant’s prayer for directing the respondents to regularize the
illegal construction and observed as follows:
“It is a matter of common knowledge that illegal
and unauthorised constructions beyond the sanctioned
plans are on rise, may be due to paucity of land in big
cities. Such activities are required to be dealt with by firm
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W.P.No. 6105 of 2023
hands otherwise builders/colonisers would continue to
build or construct beyond the sanctioned and approved
plans and would still go scot-free. Ultimately, it is the flat
owners who fall prey to such activities as the ultimate
desire of a common man is to have a shelter of his own.
Such unlawful constructions are definitely against the
public interest and hazardous to the safety of occupiers
and residents of multi-storeyed buildings. To some extent
both parties can be said to be equally responsible for this.
Still the greater loss would be of those flat owners whose
flats are to be demolished as compared to the builder.”
(ii) Shanti Sports Club v. Union of India reported in (2009) 15
SCC 705, wherein the Supreme Court has held as under:
''This Court has, from time to time, taken
cognizance of buildings constructed in violation of
municipal and other laws and emphasised that no
compromise should be made with the town planning
scheme and no relief should be given to the violator of the
town planning scheme, etc. on the ground that he has
spent substantial amount on construction of the buildings,
etc.
Unfortunately, despite repeated judgments by this
Court and the High Courts, the builders and other affluent
people engaged in the construction activities, who have,
over the years shown scant respect for regulatory
mechanism envisaged in the municipal and other similar
laws, as also the master plans, zonal development plans,
sanctioned plans, etc., have received encouragement and
support from the State apparatus. As and when the Courts
have passed orders or the officers of local and other
bodies have taken action for ensuring rigorous compliance
with laws relating to planned development of the cities and
urban areas and issued directions for demolition of the
illegal/unauthorised constructions, those in power have
come forward to protect the wrongdoers either by issuing
administrative orders or enacting laws for regularisation
of illegal and unauthorised constructions in the name of
compassion and hardship. Such actions have done
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W.P.No. 6105 of 2023
irreparable harm to the concept of planned development of
the cities and urban areas. It is high time that the
executive and political apparatus of the State take serious
view of the menace of illegal and unauthorised
constructions and stop their support to the lobbies of
affluent class of builders and others, else even the rural
areas of the country will soon witness similar chaotic
conditions.”
(iii) Contempt Petition No.1769 of 2015 and Contempt Petition
No.2166 of 2015 (Suo motu), wherein First Bench of this Court
took up a matter pertaining to demolition of the violated portions of
a building and insisted that the unauthorised constructions are
decimated. Relevant portion of the said order reads thus:
''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 at least 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;
(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
S. VAIDYANATHAN,J.
AND
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W.P.No. 6105 of 2023
R. KALAIMATHI,J.
nv
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.''
7. Since no adverse orders have been passed against the 4th
respondent, notice to 4th respondent is dispensed with. However, it is made
clear that in case, the 4th respondent is an encroacher, he will have to face the
music. No costs.
(S.V.N.J.) (R.K.M.J.)
nv 02.03.2023
To
1. The Collector,
Vellore District, Vellore.
2. The Revenue Divisional Officer,
Collectorate, Sathuvatcheri,
Gudiyatham, Vellore District.
3. The Thasildar,
Gudiyatham Taluk,
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W.P.No. 6105 of 2023
Vellore District.
W.P. No. 6105 of 2023
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