Madras High Court
Regina Selvam vs The Secretary To Government on 19 November, 2024
Author: M.Sundar
Bench: M.Sundar
W.P.Nos.11019 & 34942 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.11.2024
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MR.JUSTICE K.RAJASEKAR
W.P.Nos.11019 and 34942 of 2024
and
W.M.P. Nos.12098 and 12099 of 2024 in W.P.No.11019 of 2024
and
W.M.P. Nos.37895, 37896 and 37897 of 2024
in W.P. No.34942 of 2024
W.P. No.11019 of 2024
1.Regina Selvam
2.S.Sampath
3.C.James
4.B.Sargunavathy
5.Kurshida Begum
6.K.Manimaran ... Petitioners
vs
1.The Secretary to Government,
Housing and Urban Development Department,
Secretariat, Fort St. George, Chennai – 9.
2.The Commissioner,
Chennai Corporation,
Rippon Buildings, Chennai – 3.
3.The Zonal Officer,
Chennai Corporation,
Zone – VI, Division 65,
No.5, Andersen Street,
Ayanavaram, Chennai – 23.
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W.P.Nos.11019 & 34942 of 2024
4.The Chairman cum Managing Director,
Tamil Nadu Slum Clearance Board,
No.5, Kamarajar Salai, Chennai – 5.
5.The Chief Engineer,
Water Resources Development,
PWD Estate, Kamarajar Salai,
Chepauk, Chennai – 5. ... Respondents
(R5 impleaded suo motu vide order
dated 19.11.2024 made in
W.P.No.11019 and 34942 of 2024)
W.P. No.34942 of 2024
1.C.James
2.S.Sampath
3.Regina Selvam
4.B.Sargunavathy
5.Kurshida Begum
6.K.Manimaran ... Petitioners
vs
1.The Secretary to Government,
Housing and Urban Development Department,
Secretariat, Fort St. George, Chennai – 9.
2.The Commissioner,
Chennai Corporation,
Rippon Buildings, Chennai – 3.
3.The Zonal Officer,
Chennai Corporation,
Zone – VI, Division 65,
No.5, Andersen Street,
Ayanavaram, Chennai – 23.
4.The Chairman cum Managing Director,
Tamil Nadu Slum Clearance Board,
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W.P.Nos.11019 & 34942 of 2024
No.5, Kamarajar Salai, Chennai – 5.
5.The Chief Engineer,
Water Resources Development,
PWD Estate, Kamarajar Salai,
Chepauk, Chennai – 5. ... Respondents
(R5 impleaded suo motu vide order
dated 19.11.2024 made in
W.P.No.11019 and 34942 of 2024)
Prayer in W.P.No.11019 of 2024: Writ Petition filed
under Article 226 of The Constitution of India praying to issue a Writ
of Certiorarified Mandamus to call for the records of the respondents
particularly that of the 1st respondent dated 08.03.2024 in Letter
No.6659684/Na.Va.Me.2(1)/2024-1 and quash the same as illegal and
unlawful, ultra vires and against principles of natural justice and
consequently forbear the respondent from in any manner interfere
with nor disturb the usage of 20 feet width road running from
Sathiyavanimuthu Road Extension (25th Street), leading upto Door
No.38, 25th Street, GKM Colony, abutting the pond at GKM Colony,
Chennai – 82 falling with the Chennai Corporation limits in present
Division No.65 under the guise of rejuvenation of GKM Colony pond
park.
Prayer in W.P.No.34942 of 2024: Writ Petition filed
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W.P.Nos.11019 & 34942 of 2024
under Article 226 of The Constitution of India praying to issue a Writ
of Declaration to declare that the action of the respondents 1 to 4 are
illegal, unlawful, violation of rule of law and principles of natural
justice and consequently restore the properties of the petitioners by
compensating them suitably and forbearing the respondents from in
any manner interfere with nor disturb the usage of 20 feet width road
running from Sathiyavanimuthu Road Extension (25th Street), leading
upto Door No.38, 25th Street, GKM Colony, abutting the pond at GKM
Colony, Chennai – 82 falling with the Chennai Corporation limits in
present Division No.65 under the guise of rejuvenation of GKM Colony
pond park.
For Petitioners : Mr.T.S.Rajamohan
in both WPs
For Respondents : Mr.T.K.Saravanan,
in both WPs Government Advocate for R1 & R5
Mr.A.Arun Babu,
Standing Counsel for R2 & R3
Ms.G.Thilakavathi,
Senior Counsel
for Mr.B.Balaji for R4
COMMON ORDER
[Order of the Court was made by M.SUNDAR, J.,] Page Nos.4/24 https://www.mhc.tn.gov.in/judis W.P.Nos.11019 & 34942 of 2024 This order will govern captioned two 'Writ Petitions' (hereinafter 'WPs' in plural and 'WP' in singular for the sake of convenience and clarity) and captioned five 'Writ Miscellaneous Petitions' (hereinafter 'WMPs' in plural and 'WMP' in singular for the sake of convenience and clarity) thereat.
2. Captioned matters pertain to six plots which were originally conveyed to various individuals by Tamil Nadu Slum Clearance Board (TNSCB) which is now 'Tamil Nadu Urban Habitat Development Board' (hereinafter 'Urban Habitat Board' for the sake of convenience and clarity). Writ petitioners have built houses therein. A careful perusal of the allotment order and the sale deed (undisputed and not contested) as placed before us shows the western boundary of the plots as Street and the eastern boundary is shown as Plot No.1084. It is now contended that Plot No.1084 is a 'pond' but the position is not as clear as one would desire it to be. To put it differently, it appears to be muddy in waterbody parlance. The writ petitioners' predecessors who were allottees/vendees have put up residential houses and we are informed that there are eight residential houses now. The simple point is on the eastern boundary of the residential Page Nos.5/24 https://www.mhc.tn.gov.in/judis W.P.Nos.11019 & 34942 of 2024 houses, they created/laid a road which is said to be 20 feet wide. It is also submitted that the street on the western side is too narrow, barely 4 feet wide and therefore access is poor and this necessitated the laying of 20 feet wide road on the eastern boundary, is the say of writ petitioners.
3. There have been multiple rounds of litigations earlier.
4. The details of the earlier writ petitions to the extent it could be culled out from the case file and the submissions are as follows:
4.1 One Thiru.V.Karunakaran described as President of GKM Colony Consumer Protection Council filed a Public Interest Litigation (PIL) being W.P. No.21628 of 2009 with a prayer to remove the alleged illegal encroachments from a lake. This is the eastern boundary which we are concerned with. This PIL came to be disposed of by an order dated 03.01.2011 inter-alia directing then TNSCB to take all steps for removal of alleged encroachments.
4.2 W.P. Nos.5922, 5923, 5924, 5925 and 5926 of 2010 have been filed by Thiru.Appasamy Subramani, Tmt.Chandrammal, Page Nos.6/24 https://www.mhc.tn.gov.in/judis W.P.Nos.11019 & 34942 of 2024 Thiru.Ashok Kumar, Thiru.Shiva Kumar and Thiru.N.Jayakumar respectively with a prayer of certiorarified mandamus assailing the order dated 25.09.2009 passed by the Secretary to Government, Ministry of Defence, New Delhi. These writ petitions were dismissed by a Hon'ble Single Judge in and by an order dated 19.06.2023 holding that the petitioners have not established any right for allotment.
4.3 W.P.No.13010 of 2010 has been filed by one Thiru.C.James, first writ petitioner in W.P.No.34942 of 2024 before us with a prayer to forbear State from interfering or disturbing the use of the 20 feet road on the eastern side and the same came to be disposed of by a Hon'ble Single Judge by order dated 02.07.2018 recording the stated position of the State counsel that they have not interfered with or disturbed the usage of the road.
4.4 A review application in Rev.A.SR. No.14335 of 2011 was filed seeking to review 03.01.2011 order in W.P.No.21628 of 2009. This review application was dismissed by an order dated 05.08.2011 by a Hon'ble Division Bench.
Page Nos.7/24 https://www.mhc.tn.gov.in/judis W.P.Nos.11019 & 34942 of 2024 4.5 One Thiru.V.Karunakaran filed a Public Interest Litigation (PIL) being W.P.No.6764 of 2012 with a prayer to mandamus the State to remove the alleged illegal encroachments in waterbody popularly known as 'Vannan Kuttai' admeasuring four acres or thereabouts (to be noted, this is the eastern boundary which we are concerned with). This writ petition came to be disposed of by a Hon'ble Division Bench in and by an order dated 02.04.2013 inter-alia holding that the writ petitioner is an interloper and there is no ground to interfere.
4.6 W.P.No.2124 of 2021 was filed by a Association viz., Sri Kusuma Haranath Thunai Ex-servicemen Association with a prayer directing the respondents to remove what according to them is wrong entry made in Town Survey Land Register (TSLR) showing the eastern boundary as Peravallur Eri and Government poramboke and also to remove the wrong entry in the name of erstwhile TNSCB. This writ petition came to be disposed of by a Hon'ble Single Judge vide order dated 03.12.2021 inter-alia directing the jurisdictional Tahsildar to consider a representation dated 05.01.2021 made by the writ petitioner.
Page Nos.8/24 https://www.mhc.tn.gov.in/judis W.P.Nos.11019 & 34942 of 2024 4.7 W.P.No.16129 of 2021 was filed by Thiru.C.James (first writ petitioner in W.P. No.34942 of 2024 before us) with a prayer to forbear the State from interfering with the 20 feet road (eastern side). This writ petition came to be disposed of by a Hon'ble Single Judge along with another writ petition being W.P.No.21343 of 2023 in and by a common order dated 07.09.2023 holding that the usage of 20 feet road shall not be disturbed or interfered except by due process of law. To be noted, the other writ petition being W.P.No.21343 of 2023 was filed by one Regina Selvam and six others with a same prayer.
4.8 W.P.No.23088 of 2022 was filed by a Association viz., Sri Kusuma Haranath Thunai Ex-servicemen Association with a prayer of certiorarified mandamus assailing the order dated 24.02.2022 passed by the Tahsildar, Ayanavaram Taluk, Chennai. This writ petition was dimissed by a Hon'ble Single Judge in and by an order dated 07.02.2023 inter-alia directing the petitioner to file an appeal before the Revenue Divisional Officer.
4.9 W.P.No.30973 of 2023 filed by Regina Selvam and six others (to be noted first writ petitioner Mr.C.James in W.P. No.34942 Page Nos.9/24 https://www.mhc.tn.gov.in/judis W.P.Nos.11019 & 34942 of 2024 of 2024 is writ petitioner no.3 therein) with a prayer of certiorarified mandamus assailing the order dated 06.10.2023 passed by Estate Officer of Urban Habitat Board. This writ petition was disposed of by a Hon'ble Single Judge in and by an order dated 31.01.2024 inter-alia directing the Urban Habitat Board to dispose of appeals filed under Rule 9 of Tamil Nadu Slum Clearance Board (Control and Management of Properties) Rules, 1971.
5. Before we proceed further, we deem it appropriate to write that as regards 31.01.2024 order made by Hon'ble Single Judge in W.P.No.30973 of 2023, the following proceedings were made yesterday (18.11.2024):
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6. As regards the captioned WPs, W.P.No.11019 of 2024 has been filed with a prayer assailing an order of the Secretary to Government, Housing and Urban Development Department being 'order dated 08.03.2024 bearing reference Letter No.6659784/Na.Va.Me 2(1)/2024-1' (hereinafter 'impugned order' for the sake of convenience and clarity) which has been made pursuant to 31.01.2024 order in W.P.No.30973 of 2023. In this impugned order, Page Nos.13/24 https://www.mhc.tn.gov.in/judis W.P.Nos.11019 & 34942 of 2024 R1 has held that the 20 feet road is an encroachment of what has been set apart for development as a park. The other captioned WP (W.P.No.34942 of 2024) which has been filed by Thiru.C.James and six others is with a prayer for issue of writ of declaration saying that the action of respondents in interfering with the 20 feet road is illegal, unlawful and violation of rule of law besides being violation of principles of natural justice.
7. In W.P.No.11019 of 2024, there are four respondents. R1 is represented by Mr.T.K.Saravanan, learned Government Advocate, R2 and R3 (Chennai Corporation) are represented by Mr.A.Arun Babu, learned standing counsel and R4 (TNSCB) is represented by Mr.B.Balaji, learned counsel, on whose behalf Ms.G.Thilakavathi, learned senior counsel is appearing. On behalf of writ petitioners in both WPs, Mr.T.S.Rajamohan, learned counsel on record is before us.
8. In W.P.No.34942 of 2024, considering the mass of facts, we have issued notice to the four respondents and the same set of counsel viz., Mr.T.K.Saravanan, learned Government Advocate for R1, Mr.A.Arun Babu, learned standing counsel for R2 and R3 (Chennai Corporation) and Mr.B.Balaji, learned counsel for R4 (TNSCB) have Page Nos.14/24 https://www.mhc.tn.gov.in/judis W.P.Nos.11019 & 34942 of 2024 accepted notice. Now, with the consent of learned counsel on both sides, both the captioned main WPs are taken up.
9. Though there are multiple proceedings and mass of facts, the point is fairly simple.
10. Before we set out the point, factual matrix in a nutshell is that originally the entire area was used for rifle shooting; that the area was earmarked for Ex-servicemen Association and as a nodal agency; that the erstwhile TNSCB now Urban Habitat Board conveyed the same as plots to several persons including six individuals; that plots allotted to the six individuals have now manifested themselves as eight residential houses; that according to the allotment order and the sale deeds, the western part of the plots is shown as street and the eastern part is shown as Plot No.1084; that the contention now is Plot No.1084 is a waterbody; that it is not a waterbody is another perspective put forward by the writ petitioners; that it is earmarked for development as a park is yet another perspective which has been put in place by R1 in the impugned order; that the point should not be lost in this muddied waters i.e., in this muddied facts, as we have chosen to describe the fact scenario.
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11. Therefore, the simple point is whether the eastern part is a waterbody and whether there is encroachment. To be noted, there is no disputation that the eastern part was not allotted to the writ petitioners or to any one else either as a road or in any other form. The writ petitioners themselves have formed a road as according to them, the road on the western side is too narrow as already alluded to supra.
12. Proceeding with the discussion and dispositive reasoning (imperative for disposal of the captioned WPs and captioned WMPs thereat), we deem it appropriate to write that 'The Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007' (hereinafter 'Tanks Act' for the sake of convenience and clarity) which is dated 22.05.2007 kicked in on 01.10.2007 vide a Notification by the Government. To be noted, Tanks Act is a conditional legislation as would be evident from sub-section (3) of Section 1 and it kicked in on 01.10.2007 on Notification by the Tamil Nadu Government. The vires of the Tanks Act was challenged in T.S.Senthil Kumar's case [T.S.Senthil Kumar vs. Government of Tamil Nadu] reported in 2010 (3) Page Nos.16/24 https://www.mhc.tn.gov.in/judis W.P.Nos.11019 & 34942 of 2024 MLJ 771 and a Division Bench of this Court vide order dated 10.02.2010 upheld the vires. T.S.Senthil Kumar's case was thereafter affirmed by Full Bench in T.K.Shanmugam's case {T.K.Shanmugam Vs. State of Tamil Nadu reported in 2015 (5) LW 397}, vide order dated 03.10.2015. T.K.Shanmugam (FB) while affirming the upholding of the vires of the Tanks Act in T.S.Senthil Kumar's case, laid down the procedure to be followed while taking action under the Tanks Act. This procedure is adumbrated in sub-clauses (i), (ii) and (iii) of sub- paragraph (f) of paragraph 15 thereat which reads as follows:
'15(f) We uphold the Act, while we provide for observance of principles of natural justice within the Act itself, as under.
(i) When the officer of the Public Works Department publishes the notice in Form-II in the notice boards of the offices of Village Administrative Officer, Village Panchayat Office and the Water Resources Organization, notice shall also be issued to the alleged encroacher to the effect that the survey indicates that the place in his/her occupation is an encroachment and secondly, the notice in Form-III of the Rules may be issued.
(ii) On receipt of the said notice, the encroacher may give his/her objections relating to Page Nos.17/24 https://www.mhc.tn.gov.in/judis W.P.Nos.11019 & 34942 of 2024 the classification of the land in his/her occupation and the nature of the encroachment within a period of two weeks.
(iii) Thereafter, the authorities shall consider the objections and pass appropriate orders, in accordance with the provisions of the Act, giving time to the encroachers to remove the encroachment.'
13. To be noted, alongside coming into force the tanks act on 01.10.2007, a set of Rules captioned 'The Tamil Nadu Protection of Tanks and Eviction of Encroachment Rules, 2007' (hereinafter 'Tanks Rules' for the sake of convenience and clarity) also came into force and this is a piece of subordinate legislation made by delegate Government in exercise of rule making power inter-alia under Section 13(1) of Tanks Act, which is a rule making power.
14. Proceeding with dispositive reasoning, considering the mass of facts and the muddied lack of clarity on the classification, we find that a report of a Survey Officer under Section 6 of Tanks Act is imperative. To be noted, Section 6 of Tanks Act reads as follows:
'6. Report of Survey Officer.
(1)The Survey Officer shall after the completion of the Page Nos.18/24 https://www.mhc.tn.gov.in/judis W.P.Nos.11019 & 34942 of 2024 survey of tanks, prepare a chart and a register pointing out the boundaries of the tanks and such other informations necessary for the purpose of identifying the limits of tank.
(2)The chart and the register prepared under sub-section (1) shall be handed over to an Officer of the Public Works Department, having control over such tanks as may be specified by the Government.
(3)The officer referred to in sub-section (2), shall within one month from the date of handing over of the chart and register, publish a notice in such manner as may be prescribed pointing out the boundaries of the tank.'
15. Section 6 is a statutory mechanism by itself and it makes it clear that on the register being prepared, the same shall be handed over to an officer of the Public Works Department having control over such tanks but we hasten to add that this is after a survey. In the survey, if it is found that it is not a tank or a waterbody, proceedings under appropriate statute has to be initiated. Either way, the point remains that the writ petitioners will be show caused and given an opportunity.
16. In the light of the discussion and dispositive reasoning, we Page Nos.19/24 https://www.mhc.tn.gov.in/judis W.P.Nos.11019 & 34942 of 2024 find that the impugned order made by R1 which is inter-alia predicated on the perspective that the 20 feet road is set apart for development as park, deserves to be effaced to make way for the survey drill which we are putting in place.
17. We deem it appropriate to suo motu implead The Chief Engineer, Water Resources Development, PWD Estate, Kamarajar Salai, Chepauk, Chennai – 5 as R5 in captioned WPs. Mr.T.K.Saravanan, learned Government Advocate accepts notice of R5 also.
18. To be noted, the Tanks Act and Tanks Rules thereunder kicked in on 01.10.2007 and this has not been brought to the notice of the Hon'ble earlier Division Benches and earlier Benches which made aforementioned orders.
19. In the light of the narrative, discussion and dispositive reasoning thus far, the following order is made:
19.1 Impugned order dated 08.03.2024 bearing reference Letter No.6659784/Na.Va.Me Page Nos.20/24 https://www.mhc.tn.gov.in/judis W.P.Nos.11019 & 34942 of 2024 2(1)/2024-1 is set aside;
19.2 As the impugned order is set aside, the question of declaration sought by the writ petitioners will not arise;
19.3 R5 shall now embark upon an exercise under the Tanks Act by way of survey under Section 6, commence removal proceedings (if it becomes necessary), subject of course to the outcome of the survey;
19.4 If proceedings are initiated, the procedure adumbrated in clauses (i) to (iii) of sub-
paragraph (f) of paragraph 15 of T.K.Shanmugam (FB) shall be followed in letter and spirit;
19.5 Subject to orders (post T.K.Shanmugam (FB) legal drill), the consequences {if that be so} Page Nos.21/24 https://www.mhc.tn.gov.in/judis W.P.Nos.11019 & 34942 of 2024 will follow. If that not be so, the matter will see the end of the road and probably the road.
19.6 Status quo as of today to be maintained until the aforesaid survey and legal drill if any are completed. This survey and legal drill shall be completed as expeditiously as the business of respondents would permit but in any event within twelve weeks from today i.e., by 25.02.2025.
20. Captioned WPs and captioned WMPs thereat are disposed of in the aforesaid manner. There shall be no order as to costs.
(M.S.,J.) (K.R.S.,J.)
19.11.2024
Index : Yes / No
Neutral Citation : Yes / No (1/3)
mmi
P.S: Though the captioned WPs are disposed of, list the matters under the cause list caption 'FOR REPORTING COMPLIANCE' on 28.02.2025.
To Page Nos.22/24 https://www.mhc.tn.gov.in/judis W.P.Nos.11019 & 34942 of 2024
1.The Secretary to Government, Housing and Urban Development Department, Secretariat, Fort St. George, Chennai – 9.
2.The Commissioner, Chennai Corporation, Rippon Buildings, Chennai – 3.
3.The Zonal Officer, Chennai Corporation, Zone – VI, Division 65, No.5, Andersen Street, Ayanavaram, Chennai – 23.
4.The Chairman cum Managing Director, Tamil Nadu Slum Clearance Board, No.5, Kamarajar Salai, Chennai – 5.
5.The Chief Engineer, Water Resources Development, PWD Estate, Kamarajar Salai, Chepauk, Chennai – 5.
M.SUNDAR, J., and K.RAJASEKAR, J., Page Nos.23/24 https://www.mhc.tn.gov.in/judis W.P.Nos.11019 & 34942 of 2024 mmi W.P.Nos.11019 and 34942 of 2024 19.11.2024 (1/3) Page Nos.24/24 https://www.mhc.tn.gov.in/judis