Madras High Court

Alamelu vs The District Collector on 12 September, 2025

                                                                                              S.A.No.976 of 2019



                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                        Reserved on                         18.07.2025
                                       Pronounced on                        12.09.2025


                                                         CORAM

                       THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI

                                                  S.A.No.976 of 2019

                     Alamelu                                                           ...Appellant
                                                              Vs.

                     1. The District Collector,
                        Salem.

                     2. The Tahsildar, Omalur

                     3. The Village Administrative Officer,
                        Vellalapatty Village, Omalur Taluk.                            ... Respondents

                     Prayer : Second Appeal filed under Section 100 CPC, 1908 against the
                     judgment and decree dated 16.04.2019 made in A.S. No.67/2018 on the
                     file of the learned Sub-Ordinate Judge, Omalur, Salem District,
                     confirming the judgment and decree dated 30.10.2018 made in O.S.
                     No.40/2013, on the file of the learned District Munsif, Omalur, Salem
                     District.


                     Page 1 of 25




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                                                                                              S.A.No.976 of 2019



                                  For Appellant              : Mr. P. Vijendran
                                  For Respondents            : Mr. V. Ramesh, Government Advocate



                                                            JUDGMENT

In this Second Appeal, challenge is made to the decree and

judgment dated 16.04.2019 made in A.S. No.67/2018 on the file of the

learned Sub-Ordinate Judge, Omalur, Salem District, confirming the

judgment and decree dated 30.10.2018 made in O.S. No.40/2013, on the

file of the learned District Munsif, Omalur, Salem District.

2. For the sake of convenience the parties are referred to as per

their ranking in the trial court.

3. The appellant, as plaintiff, filed the suit in O.S. No.40/2013

before the District Munsif Court, Omalur, for declaration and

consequential permanent injunction restraining the defendants from

disturbing the plaintiff's possession and enjoyment of the suit property.

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4. The case of the plaintiff is that the suit property is situate in

Survey No.4/2 (old Survey No.15/4) measuring about 94.24 acres

originally owned by Jamin during 1925 and the said Jamindhars had

constructed a Kuttai in the said land to an extent of 6.46 acres for their

agricultural purpose. After many alienations, the said land was

demarcated as Survey Nos.15/1 to 15/8 from 15/4 during settlement

proceedings in the year 1934. The said kuttai subsequently was changed

into agricultural land due to change in circumstances. One Palaniammal

and Arasayammal have purchased the suit property measuring an extent

of 2.50 acres of land in Old S.No.15/4 (new S. No.4/2) in Jegadevanpatty

Village, Omalur Taluk, for a valuable consideration through a registered

sale deed (Ex.A1) dated 30.05.1960 from one Kaliappan and others.

Thereafter, the plaintiff herein purchased the suit property from

Palaniammal and Arasayammal for a valuable consideration, which was

duly endorsed on the back side of the first page of the above sale deed.

No separate sale deed was executed. From the date of purchase, i.e. from

15.12.1968, the plaintiff alone is in peaceful and exclusive possession

and enjoyment of the suit property as absolute owner by paying

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necessary taxes to the Government.

4.1. It is further submitted that the suit property is classified as

own lake in 'A' Register. At the time of converting the said land into

agricultural land, the plaintiff's predecessors in title have put their hard

work in reclaiming the land and to make it fit for cultivation. While so,

the respondents are trying to evict the plaintiff from the suit property by

stating that the same belongs to the Government. Hence, several Writ

Petitions were filed before this Court and stay was ordered. The

Government neither informed the plaintiff about the conversion of the

suit property into poramboke land nor issued any notice in this regard,

but, however, collected 2A charges from the persons who are in

possession of the land including the plaintiff. In fact, the suit property is

not a water course poramboke as alleged by the defendants. The lands

are purely agricultural and belongs to the plaintiff. It is further submitted

that standing crops are there in the suit property for which the plaintiff

has spent huge amount in cultivating such crops for all these years.

Since the defendants are attempting to disturb the plaintiff's possession

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and enjoyment of the suit property, the plaintiff was constrained to file

the above suit for permanent injunction.

4.2. The defendants together resisted the claim of the plaintiff by

stating that the suit land is classified as water course poramboke "Eri"

and the plaintiff cannot claim any right or title over the water course,

Government Poramboke land. Survey No.4/2 of Jegadevampatti Village

is classified as Government Poramboke land in column 3 and 4 of 'Á'

is stated that the plaintiff is not a poor farmer and that she is holding

patta lands and that she has voluntarily encroached the Government

poramboke water course land. It is further stated that the water course

poramboke lands belong to the Government and this Court had also

passed many orders to safeguard the watercourse in the land and one

such order dated 07.01.2019 was passed in W.P. Nos 32728/2005 &

35699/2005 directing the District Collector, Salem District, to evict the

encroachments in the water course poramboke lands by following the

provisions of Tamil Nadu Land Encroachment Act, 1905 and Tamil Nadu

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Protection of Tank and Eviction of Encroachment Act 2007. Therefore,

the plaintiff is not entitled to the relief claimed in the plaint in respect of

the Government Poramboke land since she is an encroacher and liable to

be evicted. Hence prayed for dismissal of the suit.

4.3. Before the trial court, the plaintiff was examined as P.W.1 and

36 documents were marked on the side of the plaintiff. On the side of the

defendants. D.W.1 and D.W2 were examined and 13 documents were

marked. Ex.C1 and Ex.C2 were marked as court documents.

4.4 The trial court, based on the materials placed on record,

declined the relief of declaration and granted the relief of permanent

injunction in favour of the plaintiff. Aggrieved by this, the plaintiff

preferred an appeal in A.S. No.67/2018. The first appellate court, by its

judgment and decree dated 16.04.2019, dismissed the appeal suit by

confirming the judgment and decree passed by the trial court.

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4.5. Both the courts below has categorically held that the suit

property belongs to the Government and that the plaintiff is not entitled

for the relief of declaration and by recognising the possession of the

plaintiff in the suit property, granted the relief of permanent injunction

directing the respondents not to evict the plaintiff without due process of

law.

5. Aggrieved by the same, the present regular Second Appeal is

preferred by the plaintiff. The Second Appeal has been admitted on the

following substantial questions of law.

i. "Whether the courts below were right in dismissing

the suit for declaration, more so when the revenue

records discloses that the suit land was classified as

private kuttai?

ii. Whether the courts below were right in concluding

that the land is vested in the Government and its

classification as poromboke land is justified in the

absence of any proceedings to that effect?"

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6. The learned counsel for the appellant/plaintiff submits that the

title is the defacto antecedent of which the right is de jure consequent

and that the title has been proved by the plaintiff and that the courts

below are duty bound to agree and give legal seal, but it was denied. His

further contention is that the courts below failed to appreciate the

materials on record in a right perspective manner. The courts below

failed to consider the fact that even in the 'A' Register, the suit properties

were classified as own land from the year 1937 and even the report and

plan submitted by the Advocate Commissioner were not considered. He

would further contend that the suit properties do not belong to the

Government at any point of time and the documents marked as Ex.A1 to

Ex.A24 would reveal the fact that the suit properties belong to the

plaintiff and Ex.C1, Ex.C2 and Ex.B3 would establish that the plaintiff

is in possession and enjoyment of the suit property. Moreover, the trial

court as well as the first appellate court failed to consider Ex.B10 and

Ex.B13 and the oral evidence adduced by D.W.1 and D.W.2 in a proper

perspective manner. Hence prayed for setting aside the judgment and

decree passed by the trial court as well as the first appellate court.

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7. On the other hand, the learned State Counsel submits that the

suit land is classified as “Eri” which is a watercourse poramboke and that

the plaintiff cannot claim any right or title over the same. The said

watercourse lands belong to the Government and this Court has passed

many orders to safeguard the watercourse in the land and also directed

the revenue authorities to evict the encroachers from the watercourse

lands by following the provisions of Tamil Nadu Land Encroachment

Act, 1905 and Tamil Nadu Protection of Tank and Eviction of

Encroachment Act, 2007. Since the plaintiff is an encroacher, she is liable

to be evicted from the suit land. The courts below rightly rejected the

claim made by the plaintiff for declaration of title and granted the relief

of permanent injunction directing the defendants not to evict the plaintiff

without due process of law, which warrants no interference by this Court.

8. Heard on both sides. Records perused.

9. It is the specific case of the plaintiff that the suit property

measuring 2.50 acres of land in old S.No.15/4 (new S.No.4/2) in

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Jegadevanpatti Village, Omalur Taluk, was purchased by Palaniammal

and Arasammal for a valuable consideration under a registered sale deed

(Ex.A1) dated 30.05.1960 from one Kaliappan and others. Thereafter,

the plaintiff purchased the suit property from Palaniammal and

Arasammal for a valuable consideration on 15.12.1968, which was duly

endorsed on the back side of Ex.A1 sale deed and that no separate sale

deed was executed. From the date of purchase, the plaintiff is in peaceful

possession and enjoyment of the suit property as absolute owner by

paying 2A charges to the Government. According to the plaintiff, the

properties comprised in S.No.4/2 (old S.No.15/4) measuring 94.24 acres

originally owned by Jamin during 1925 and the said Jamindhars

constructed a kuttai in the said lands to an extent of 6.46 acres for their

agricultural purpose. During settlement proceedings in the year 1934, the

lands were demarcated as S.Nos. 15/1 to 15/8 from 15/4 and the said

kuttai was changed into agricultural lands. Even in the 'A' Register, the

suit property is classified as “own lake”. While so, the Government

without informing the plaintiff converted the suit property into

poramboke lands and in fact, the suit property is not a watercourse

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poramboke land as alleged by the defendants. The suit lands are purely

agricultural lands and belongs to the plaintiff.

10. Admittedly, the plaintiff is in possession of the suit property. It

is also not in dispute that the plaintiff is paying 2A charges to the

Government. According to the plaintiff, the suit property during Jamin

period was classified as “private lake” and the same is also mentioned in

Ex.A20 sale deed dated 04.06.1943. Even in Ex.A33, the existence of

private lake is mentioned. However, in Ex.A1 sale deed, the word

“private lake” is not found. Moreover, the plaintiff failed to establish

how, and from when and by whom the private lake was converted into an

agricultural land. Moreover, from Ex.A3 it is seen that, nothing is

mentioned about pattadhars to private lake. The plaintiff has failed to

produce any documents to show that the suit property and other

properties owned by Jamins and a private lake was formed by Jamins

and the same was converted into agricultural lands. Even otherwise, a

private lake can be converted into a Government waterbody, typically

through processes like land acquisition, government purchase, or as part

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of a public interest initiative where the government acquires or takes over

the lake. This process may involve legal proceedings, negotiations, and

potentially the declaration of the lake as a public utility, emphasizing its

importance for water management and public benefit, as seen in cases

where the government takes control of waterbodies for public supply or

conservation. In the present case, in Ex.B1 the said private lake is

described as “\Gw” which means poramboke land. Under Ex.B1 to B13,

the suit property is described as a water source area. In the absence of

any evidence for conversion of the private lake into Government water

course, the plaintiff after knowing about the mutation of revenue entries,

ought to have raised her objections at the earliest. Neither the plaintiff

nor her predecessors in title had taken any steps to rectify the same. As

rightly pointed out by the first appellate court, this would lead to invoke

the doctrine of estoppel and that the plaintiff is estopped from claiming

right over the property. Above all, since the plaintiff has admitted that she

was regularly paying 2A charges to the government for the enjoyment of

the suit property, she cannot let in evidence in contrary. From the revenue

records produced on the side of the defendants, it is seen that the suit

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property found to be water source area in which the plaintiff cannot claim

any legal right or title. Even assuming that the plaintiff has purchased the

suit property, the same will not confer any right or title as the government

itself has no power to regularise such encroachment in the water body. A

water body is a property which is always to be maintained as such for the

communal benefits. It is bounden duty of the Court to restore water

resources as against anybody, including the government policy, if it is

contra to the Article 19 and 21 of Indian Constitution. Additionally, the

courts recognise the “public trust doctrine” for managing natural

resources like lakes, forests and rivers. This doctrine asserts that the

government holds these resources in trust for the public, they cannot be

converted for public use. The government is obligated to protect and

restore water bodies for public use and ecological balance. The State can

also take possession of private water bodies if it serves a public purpose

and is in accordance with relevant laws. The government has the power

to acquire private property, including land that contains lakes, for public

use, under the power of eminent domain. If a lake was originally a

natural source, but was privately owned, or encroached upon, the

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government can take action to restore it to its original state as a public

water body. The entire process is governed by laws related to water

bodies, land use, and the public trust doctrine, which states that the

government is a trustee of water bodies for the benefit of the public.

11. A Full Bench of this Court in T.K.Shanmugam Vs. State of

Tamil Nadu and Others reported in 2015 [5] LW 397, has, after

elaborately discussing the public Trust Doctrine, held that merely

because the water body vest with the Government, the Government is not

the owner of the water body and that the Government is expected to

maintain the same for the benefit of the public and keep the property as

a water body for the benefit of the public. The following are the relevant

paragraphs:-

''29. Reverting back to the Sivakasi Region Tax Payers Association's case, in paragraph 28, it was observed that it should not be misunderstood, as if the Division Bench was suggesting that all encroachments should be regularised or encouraged, but the State Government to take a conscious decision, if the land on which there are encroachments for a

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long period and such land is not required for any public purpose or for the State and a person remaining in adverse possession for more than 30 years acquires such right over the property. The other observations contained in para 30 of the judgment are that the Government Order (G.O. No. 854) makes it amply clear, where the environment is not affected in the sense, the area is not in use as lake or water source either natural or artificial and not required for any public use and for the use of the State then only the property can be settled.

30. With respect we do not agree with the said observations, since the object of the enactments which have held the field from 1905 does not speak of any such exemption, rather the underlying principle was to preserve and protect water bodies. It is to be noted at this juncture, during summer, water bodies would appear dry, but during rainy days/monsoon, stream would be in place to drain/take the water to the water bodies and percolation takes place which in all probability results in surcharge of ground water. Thus, on account of the default of the Revenue officials or on account of collusion of official machinery with encroachers can hardly be a premium to justify

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encroachments. The theory of adverse possession, would not stand attracted in such cases. The encroachers are infact trespassers into Government property. In terms of the Standing Orders of the Board of Revenue, the Village Administrative Officer has a duty to report any encroachment in any Government land in his village. The present scenario of rampant encroachment is on account of the failure of the Revenue Administration to protect Government lands. As observed T.N. Senthilkumar, (supra), the State holds all the water bodies in public trust for the welfare of this generation and all succeeding generation.

Thus it would be preposterous to suggest that a trespasser with or without the connivance of the officials enters into occupation of Government land, gradually defaces its identity then puts forth a plea that it is a no longer a water body or a water channel and seeks for regularisation of his trespass be rewarded with a patta. If such acts of trespassers/encroachers are to be treated as pardonable and be rewarded for their illegal act in the form of regularisation/accommodation to say the least, it would be an absolute degradation and collapse of the public trust vested with the State to protect the lands and water bodies. If the Government is interested in allocating the poor and

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downtrodden, it should bring out a scheme for rehabilitating them and not to condone their act of trespass, reclassify the law and then grant patta to those encroachers.

31. We may at this stage examine the origin, scope and object of the Public Trust Doctrine. Most scholars identify the Justinian code of sixth century Rome as the genesis of the Public Trust Doctrine - the doctrine of ‘res communes’ which claims that some things are ‘common to mankind - the air, running water, the sea, and consequently the shores of the sea [and] the right of fishing in a port, or in rivers, is common to all men [see Joseph L. Sax, ‘Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention’, 68 Michigan L. Rev. 471 (1970)]. It has been further observed that the title to these essential resources was vested in the State, as the sovereign, in trust for the people. Res communes were excluded from private control and the trustee was charged with the duty of preserving the resources in a manner that made them available for certain public purposes. It has been further explained that the legal or moral concept of common ownership later emerged as more of a reservation of ‘a series of particular rights to the public’to engage in certain activities, thus limiting ‘the

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prerogatives of private ownership’. There is therefore now a nearly universal notion that resources such as watercourses should be protected from complete private acquisition in order to preserve the lifelines of communal existence. The common property resources are those resources not controlled by a single entity and access to which is limited to an identifiable community of individuals or states. No one user has the right to abuse or dispose of the property. Any dealing with the property has to take into account the entitlements of others. Besides, users of common property share rights to the resource and are subject to rules and restrictions governing the use of those resources [John Gowdy, Coevolutionary Economics - The Economy, Society and the Environment (Boston: Kluwer, 1994)] & [Daniel W. Bromley & Michael M. Cernea, The Management of Common Property Natural Resources ‘Some Conceptual and Operational Fallacies (Washington, DC: The World Bank, Discussion Paper No. 57, 1989).]. In England, this concept appears in the common law, particularly through the writings of Bracton and Flecta, England's Magna Carta, and commentary by Blackstone. Paragraph 5 of the Magna Carta made explicit reference to the guardianship of land extending the guardianship to houses, parks, fish ponds,

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tanks, mills and other things pertaining to land. As early as 1865, the English House of Lords defined the concept of public trust in the case of Gann v. Free Fishers of Whitstable, House of Lords, 3 March 1865, 11 E.R. 1305 :

(1865) 11 H.L. Cas. 192, holding that the bed of all navigable rivers where the tide flows, and all estuaries or arms of the sea, is by law vested in the crown. But this ownership of the crown is for the benefit of the subject, and cannot be used in any manner so as to derogate from, or interfere with the right of navigation, which belongs by law to the subject of realm. This imposed a high fiduciary duty of care and responsibility upon the sovereign[Godber Tumushabe etal., Sustainably Utilising our Natural Heritage: Legal Implications of the Proposed Degazettement of Butamira Forest Reserve (Kampala, ACODE, Policy Research Series, No. 4, 2001)]. Further elaborating the concept of public trust, the English Common Law distinguished between property that was transferable to private individuals and property that was held in trust for the public traditionally waterways. The property held in trust for the public is the dominant estate and encapsulates the public's trust rights, ranging from fishing, fowling and navigation to other broader rights like

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recreation. [Gerald Torres, ‘Who Owns the Sky’, 19 Pace Envt’ 1. L.Rev. 515, 530 (2002).

32. Whatever approach is taken, the fundamental emphasis is on communal rather than private rights. In cases where communal rights protector negates the rights of some, it implies a denial of the application of the Public Trust Doctrine. Natural resources have traditionally been found either under the sovereignty of a particular state or in the so-called global commons. Where the resources are held by a state, the essence of the Public Trust Doctrine is that the state or governmental authority, as trustee, has a fiduciary duty of stewardship of the public's ‘environmental capital’. Thus it is the duty of the State to protect, conserve and augment traditional water retaining structures.

33. The Supreme Court of the United States of America in Illinois Central Railroad Co. v. People of the State of Illinois, [146 US 387 : 36 LEd 1018 (1892)], pointed out that the State holds title to the bed of navigable waters upon a public trust, and no alienation or disposition of such property by the State which does not recognise and is not in execution of this trust, is permissible.

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34. In Michigan Law Review, Vol. 68, No. 3 (Jan.

1970), Pages 471-566, Prof. Sax said that three types of restrictions on governmental authority are often thought to be imposed by the public trust doctrine, namely: ‘1. the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public; 2. the property may not be sold, even for fair cash equivalent; 3. the property must be maintained for particular types of use (i) either traditional uses, or (ii) some uses particular to that form of resources.’

35. The Hon'ble Supreme Court in Indian Council for Enviro-Legal Action v. Union of India, [(1996) 5 SCC 281], held that there should not be development at the cost of environment and vice versa, but there should be development while taking due care and ensuring the protection of environment.

36. Thus, the public trust doctrine requires that natural resources such as lakes, ponds etc., are held by the State as a ‘trustee’ of the public and can be disposed of only

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in a manner that is consistent with the nature of such a trust.

37. Bearing the above legal principle in mind, we have to consider as to whether by virtue of the various Government Orders issued from time to time infringes or violates the public trust doctrine with particular reference to water bodies. ......

44.The Government Orders starting from 30.12.2006 in G.O.[Ms].No.854, Revenue Department and subsequent Government Orders in G.O.Ms.No.498, 711, 34, 43 and 372 dated 05.09.2007, 30.11.2007, 23.01.2008, 29.01.2010 and 26.08.2014 respectively, with particular reference to encroachments in water bodies are in clear violation of the public trust doctrine. Moreover, Article 51-A of the Constitution of India enjoins that it shall be the duty of every citizen of India, inter alia, to protect and improve the national environment including forests, lakes, rivers, wildlife and to have compassion for living creatures. This Article is not only fundamental in the governance of the country but a duty on the State to apply these principles in making laws and further to be kept in mind in

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understanding the scope and purport of the fundamental rights guaranteed by the Constitution including Article 14, 19 and 21 of the Constitution and also the various laws enacted by the Parliament and the State Legislatures. But, unfortunately, the State, by passing the above said Government Orders, actively encourages encroachers of water bodies, to indulge in illegal and unlawful activities and also bent upon regularizing their possession which has to be deprecated.''

Therefore, this Court is unable to appreciate the contentions of the

learned counsel for the appellant/plaintiff. Thus, The substantial

questions of law are answered against the appellant. However, the

plaintiff cannot be evicted from the suit property by the defendants

except under due process of law. The first appellate court has rightly

moulded the relief of permanent injunction as against the defendants not

to evict the plaintiff from the suit property except under due process of

law. No perversity or infirmity is found in the judgment and decree of

the courts below.

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12. In the result,

i. The Second Appeal is dismissed. No costs.