Madras High Court
Orders Reserved On vs The District Collector on 18 April, 2018
Bench: T.S.Sivagnanam, R.Tharani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 18.04.2018
CORAM
THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM
and
THE HONOURABLE MRS.JUSTICE R.THARANI
W.P.(MD) No.23927 of 2017
and
W.M.P(MD)No.20080 of 2017
Orders reserved on
13.03.2018
Orders pronounced on
18.04.2018
L.K.Prabakaran .. Petitioner
Vs.
1.The District Collector,
Collectorate Office,
Trichy, Trichy District.
2.The Tahsildar,
Tahsildar Office,
Trichirappalli East,
Trichy District.
3.D.Senthil Kumar .. Respondents
(R3?Impleaded vide Court order dated 13.03.2018
in W.M.P.No.1431 of2018 in W.P.No.23927 of 2018)
Petition filed Under Article 226 of the Constitution of India praying
for issuance of a Writ of Certiorarified Mandamus, to call for the records
relating to the impugned order of eviction issued by the second respondent
herein in his proceedings in m1-9263-2017, dated 16.12.2017 served on
20.12.2017 and quash the same as illegal and further direct the respondents
herein not to dispossess the petitioner without following due process of law.
!For Petitioner : Mr.V.Meenakshi Sundaran
for Mr.D.Nallathambi
^For RR1 & 2 : Mr.S.Dhayalan,
Government Advocate
For R3 : Mr.S.Vinod Sathiya Lazar
:ORDER
The petitioner has filed this Writ Petition challenging the order passed under Section 6 of the Tamil Nadu Land Encroachment Act, 1905 (hereinafter referred to as ?the Act?).
2. Mr.V.Meenakshi Sundaram, learned counsel for the petitioner submitted that the impugned eviction order is in total violation of the principles of natural justice, as the explanations given by the petitioner dated 09.12.2017 and 19.12.2017, in response to the notice under Section 7 of the Act, were not considered. The impugned eviction order having been passed in a summary manner without conducting any enquiry, that too in a hasty and discriminatory manner, is unsustainable in law. The second respondent, who passed the impugned order has not assigned any reasons and without supplying the copies of the alleged survey report, the same has been passed. It is submitted that based on the alleged survey, which is stated to have been conducted without notice to the petitioner, terms the petitioner as an ?encroacher? whereas the petitioner has been granted Patta No.3633 in respect of the said land measuring about 26 cents and the petitioner is the absolute owner of the said property.
3. It is further submitted that the petitioner executed a Settlement Deed dated 30.10.2015, settling the said property in favour of his wife Tmt.Kamala. However, in the said Settlement Deed, a typographical error occurred in the survey number of the property, as it was mentioned as Survey No.136 instead of Survey No.131 and therefore, a Deed of Rectification was executed and registered by mentioning the correct survey number. It is submitted that Survey No.136 is classified as 'tank', which has been encroached by several persons and no action has been taken to evict those encroachers, but the petitioner alone has been targeted. It is further submitted that the petitioner?s neighbour filed a suit in O.S.No.860 of 2016, on the file of the District Munsif Court, Tiruchirappalli, to declare the Settlement Deed executed by the petitioner, dated 30.10.2015 in favour of his wife as null and void and the suit is pending, and the petitioner and his wife, who were arrayed as defendants, are contesting the suit.
4. It is submitted that when the Tiruchirappalli Corporation raised objection with regard to the tax receipts issued and the petitioner?s title to the property in Survey No.131, the petitioner was constrained to file a suit in O.S.No.765 of 2017, before the District Munsif Court, Tiruchirappalli praying for a decree of permanent injunction against the Tiruchirappalli Corporation and the Sub Registrar, Tiruchirappalli, and the suit is pending trial. In the meantime, one Senthilkumar filed a complaint before the District Registrar, Tiruchirappalli to cancel the Settlement Deed dated 30.10.2015. However, the said petition was rejected by the District Registrar, by order dated 16.10.2017. Further, it is submitted that the officials of the Tiruchirappalli Corporation lodged a complaint before the Tiruchirappali Crime Branch Police alleging that the petitioner has created fraudulent documents and a criminal case has been registered in Crime No.47 of 2017. It is therefore, submitted that when civil and criminal proceedings are pending, the second respondent, Tahsildar, without notice to the petitioner claims that a survey was conducted and has termed the petitioner an ?encroacher?. It is therefore, submitted that the impugned order passed under Section 6 of the Act, deserves to be set aside and a fresh survey of the property has to be conducted before taking any action or terming the petitioner as an 'encroacher'. On the above submissions, the learned counsel prayed for allowing the Writ Petition.
5. Mr.S.Dhayalan, learned Government Advocate appearing for respondents 1 and 2 submitted that the petitioner is an 'encroacher' of the property comprised in T.S.No.12/1 corresponding to old Survey No.131/1 of Alathur Village. The Revenue records, viz., the Settlement Register, Adangal, etc., have classified the property as Government property ?Kalar Bhoomi?. It is further submitted that the petitioner based on a fabricated ?Manaivari Thoraya Patta? alleged to have been issued for Survey No.131 manipulated the village ?Nilavari Thitta? Register (Chitta) created a Gift Settlement Deed, dated 30.10.2015 in favour of his wife Tmt.Kamala and the survey number of the property was subsequently rectified. However, the village accounts do not have any entry to the composite Survey No.131 and the said land is classfied as ?Kalar Bhoomi?. The third respondent herein, lodged a complaint stating that the petitioner has encroached into Government property by fabricating Revenue documents and such complaint was entertained by the District Registrar (Administration) and after making through enquiry, found that the Gift Settlement Deed and the Rectification Deed have been registered by the petitioner on the basis of fabricated Revenue records. Further, the District Registrar through his proceedings dated 16.10.2017, has directed the Jurisdictional Sub-Registrar to initiate criminal action against the petitioner under Section 83 of the Registration Act.
6. Further, it is submitted that on the same subject, the Tiruchirappalli Corporation forwarded a letter to the Inspector of Police (Land Grabbing), Cantonment, Tiruchirappali, who have registered a criminal case against the petitioner in Crime No.47 of 2017 for offences under Sections 415, 420, 465, 467, 468 and 471 IPC and the petitioner moved this Court in Criminal Original Petition No.15557 of 2017 for grant of anticipatory bail. When the anticipatory bail petition was heard on 15.11.2017, submission was made on behalf of the petitioner that, if he has really encroached into Government poramboke land, he is ready to surrender the same and therefore, there was an oral direction to the Inspector of Police, Land Grabbing Cell to measure the encroachment and reclaim from the petitioner and submit a report. Consequently, the second respondent issued notice under Section 7 of the Act read with a relevant Revenue Standing Orders. Further, the Assistant Commissioner, Ariyamangalam Zone, Trichirappalli City Corporation was directed to appear before the Court and oral direction was given to measure the property and if it is found to be an encroachment, the same should be removed and the land should be reclaimed. Therefore, the Assistant Commissioner, Ariyamangalam Zone, by letter dated 30.11.2017, addressed the second respondent, Tahsildar requesting for further action in the subject matter. After conducting proper verification, the Assistant Commissioner appeared before the Court on 07.12.2017, along with necessary records, and submitted that there is encroachment, and there was an oral direction to remove the encroachment and the petition for anticipatory bail was dismissed. Accordingly, further proceedings were initiated and the impugned order has been passed. It is therefore submitted that proper procedure has been followed and the petitioner has no right to remain in the property, which is a Government poramboke ?Kalar Bhoomi?.
7. Heard the learned counsels for the parties and perused the materials placed on record.
8. The petitioner has not been able to dislodge the factual matrix as placed before this Court in the form of a counter affidavit of the second respondent and a status report by the second respondent filed on 31.01.2018. The petitioner has been fully aware of the proceedings initiated and in fact, the proceedings appear to be pursuant to directions issued by the Court, while considering the application for anticipatary bail and having been unsuccessful before the said court, has approached this Court by way of this writ petition attempting to get over indirectly, what the petitioner cannot directly get over. The affidavit filed in support of the writ petition is absolutely silent about the proceedings before the Court which dealt with Crl.O.P.No.15557 of 2017 and the directions issued from time to time. Therefore, the petitioner is guilty of suppression of material facts. The copies of the Revenue records have been produced before this Court, which clearly show that the land in question has been classified as a ?Kalar Bhoomi?. Therefore, the petitioner is a rank trespasser of Government property.
9. The learned counsel for the petitioner submitted that the complaint filed by the third respondent before the District Registrar, Tiruchirappalli was rejected by order dated 16.10.2017. However, on a careful reading of the said order, it is seen that the findings recorded therein clearly hold that the petitioner is guilty of fabricating Government records. In the penultimate portion of the order, the authority has stated that because of the pendency of the Civil Suit, he is unable to pass orders on the complaint and gave liberty to the third respondent to approach the Civil Court for necessary relief. At this juncture, it would be relevant to extract the findings recorded by the District Registrar pursuant to an enquiry conducted in the complaint petition filed by the third respondent. We find that the petitioner also participated in the enquiry and the contentions raised have been considered by the District Registrar and finding of fact has been recorded. The operative portion of the finding reads as follows:
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10. It is interesting to note that, during the course of enquiry, the petitioner was called upon to produce certain records, however, the petitioner took a stand that, on 24.03.2017, the records were lost and he lodged a complaint in the Ariyamangalam Police Station. Therefore, the District Registrar, to ascertain the correctness of the patta claimed to have been issued to the petitioner, called for a report and has clearly recorded a finding that the Revenue registers have been tampered. Thus, we find that the petitioner is guilty of tampering and fabricating the Revenue records and creating documents, as if, he is the owner of the property and executing the Settlement Deed in favour of his wife with a view to create encumbrances over the property, has absolutely no right to remain in the land in question.
11. Thus, considering the serious allegations against the petitioner in fabricating the documents, we find that the petitioner is not entitled to any relief. Admittedly, the petitioner has not challenged the findings recorded by the District Registrar in its order dated 16.10.2017. The findings clearly stare on the face of the petitioner and exposes the fraudulent activities done by him. Therefore, the petitioner has not made out any case for interference with the impugned order.
12. In the result, the writ petition is dismissed. The petitioner is granted 15 days? time to clear the encroachment and handover the possession of the land to the second respondent, failing which the second respondent is directed to evict the petitioner departmentally and recover the cost from the petitioner. In the event, the petitioner resists the eviction proceedings, the second respondent is directed to inform the concerned police authority, who shall provide adequate police protection to carryout eviction proceedings. No costs. Consequently, W.M.P(MD)No.20080 of 2017 is also dismissed.
To
1.The District Collector, Collectorate Office, Trichy, Trichy District.
2.The Tahsildar, Tahsildar Office, Trichirappalli East, Trichy District.
.