Madras High Court
M.Govindaswamy vs The District Collector on 20 February, 2018
Author: M.Venugopal
Bench: M.Venugopal, S.Vaidyanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.02.2018
CORAM:
THE HONOURABLE MR.JUSTICE M.VENUGOPAL
AND
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
W.P.No.29991 of 2017
and
W.M.P.No.32515 of 2017
M.Govindaswamy .. Petitioner
Vs.
1. The District Collector,
Kanchipuram,
Kanchipuram District.
2. The Executive Engineer,
Public Works Department,
Kovilambakkam,
Sholinganallur Taluk,
Kanchipuram District.
3. The Thasildar,
Sholinganallur Taluk,
Kanchipuram District. .. Respondents
Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Mandamus to forbear the respondents from interfering and demolishing the petitioner's building bearing Door No.1/386 situated in S.F.No.123/1B of Kovilambakkam Village, Sholinganallur Taluk, Kanchipuram District, by considering the petitioner's representation, dated 20.11.2017.
For Petitioner : Mr.R.Prabakar
For Respondents : Mr.R.Udhaya Kumar, Addl.G.P.
ORDER
(The Order of the Court was made by M.Venugopal, J) The petitioner has filed the above Writ Petition praying for issuance of a Writ of Mandamus to forbear the respondents from interfering and demolishing the petitioner's building bearing Door No.1/386 situated in S.F.No.123/1B of Kovilambakkam Village, Sholinganallur Taluk, Kanchipuram District, by considering the petitioner's representation, dated 20.11.2017.
2. Heard the learned counsel for the petitioner and the learned Additional Government Pleader appearing for the respondents.
3. According to the petitioner, he is the owner of the property measuring an extent of 2140 Sq.Ft. bearing Plot No.21 in S.F.No.123/1B part of Kovilambakkam Village, Sholinganallur Taluk, Kanchipuram District by way of sale deed dated 09.12.1994, registered as Doc.No.5488/1994 on the file of the Sub-Registrar Office, Pallavaram. As a matter of fact, he purchased the aforestated land from one L.Arumugam, S/o Lakshmananaicker. The petitioner's wife Mrs.Pachaiyammal also purchased an extent of 2080 Sq.Ft. in S.F.No.123/1B being the remaining extent of land of Arumugam, S/o Lakshmananaicker through another sale deed in Doc.No.5487/1994.
4. The stand of the petitioner is that by virtue of the sale deeds, their property bears Plot No.21 in S.F.No.123/1B of Kovilambakkam Village and at the time of sale, it was divided as 21A and 21B and sold to him as well as to his wife respectively and thus they derived title to the property as absolute owners. From the date of purchase, the petitioner has been in possession of the land together with his family by constructing house. In the road facing front side of his house, the petitioner has constructed shops and at the back side of the shops (rear portion), they are living. The land after his purchase, was assessed to tax and he had been paying the taxes to concerned authorities without fail and that the property in his wife's name was also assessed to taxes, which were paid in full without any default.
5. The petitioner had obtained electricity domestic connection to his house. Even their sale transactions are reflected in the Encumbrance Certificate mentioning respective purchaser and vendor's name with respective boundaries. After their purchase, because of the ignorance and illiteracy, they have not obtained any Revenue Records in respect of the lands purchased, even though the request was made to the authorities for supplying them.
6. The petitioner in his writ affidavit at paragraph 4 had categorically averred that one of the boundaries of the petitioner's wife's property is 'Odai Channel' and the same is reflected in the sale deed as well as Encumbrance Certificate. The said 'Odai Channel' is flowing in North-South direction and their land is situated on the Western side of the 'Odai Channel'. The adjacent Western side of the 'Odai Channel' is the petitioner's wife's property and thereafter, his property starts and both of their lands were purchased from one common owner, namely Arumugam. The purchase of the lands in question was effected as early as in 1994 itself and they have never encroached in the 'Odai Channel,' nor in the public land.
7. While the facts stood thus, in January 2016, according to the petitioner, the authorities came and visited the buildings and demolished the building of his wife's land in S.F.No.123/1B, alleging that they had encroached the 'Odai Channel'. In fact, the respondents and their authorities had demolished the buildings over a day without even issuing any notice to him or his wife and without giving any breathing time. Also that, no action has been taken against the real encoachers who have encroached the 'Odai Channel' and constructed the multi-storeyed apartments and houses in both sides of the channel, since they being influential persons with political background. After demolishing the building of his wife's property, no widening of the 'Odai Channel' has been undertaken and the debris and the cleaning soils have been piled up.
8. Moreover, the petitioner's property is facing the road and near his property, there is a bridge in the Channel and the said bridge has been stretching to the breadth of the Channel, measuring about 40 to 45 feet. Their house is situated after the boundaries of the 'Odai Channel' and between his house and the 'Odai Channel', the property mentioned in the sale deed Doc.No.5487/1994 is situated. In January 2016, except their building, none of the buildings which had been constructed really encroaching the 'Odai Channel', had been demolished. Even the apartments were constructed in the middle of the 'Odai Channel' and no action has been taken, since the concerned persons are influential persons. The petitioner has constructed his house as early as two decades ago after his purchase. Without even ascertaining the factum of the alleged encroachments and issuing any notice to the petitioner or to his family members, according to the petitioner, the respondents are proceedings to demolish his property which is in utter violation of natural justice, even though the authorities had not considered the fact that the petitioner is dwelling in the property for not less than 23 years.
9. It is the further case of the petitioner that he has no other alternative accommodation except the property in question and the property in S.No.123/1B is his separate property purchased through two valid sale deeds and the respondents have no authority to proceed with demolition of his private property without initiating any acquisition proceedings.
10. The petitioner comes out with a plea that the authorities of the respondents had informed him on 17.11.2017 at about 4 p.m. that they are going to demolish his house and subsequently, the respondents' men came to his property on 18.11.2017 and without hearing and heeding to his words and objections, they have informed him to remove the articles, and hence, he submitted a representation to the respondents on 19.11.2017 at mid-night itself, narrating the entire facts. Because of the illegal and atrocious actions of the respondents, the petitioner has filed the present Writ Petition for the relief stated above.
11. Per contra, the learned Additional Government Pleader appearing for the respondents, by filing counter affidavit, submitted that even though the purchase documents pertaining to land of the petitioner shows the survey number as S.No.123/1B, Plot No.21 of Kovilambakkam Village, Sholinganallur Taluk, the petitioner had actually encroached in S.No.123/26 measuring 7.77.0 hectares, which is classified as 'grazing ground poramboke'. Apart from that, he has put up terraced house in the encroached land of an extent of 0.01.0 ares and this is quite evident from the land tax receipts issued by the Village Administrative Officer, Kovilambakkam in respect of Fasli 1409 (1999) onwards and in fact, the petitioner has shown that he has purchased the land in S.No.123/1B, and that he has constructed the house in S.No.123/26, which is a 'Government poramboke land'.
12. Moreover, the petitioner was annually charged with 2A charges for his encroachment and the land is classified as grazing ground in the Revenue Records, which is a part of 'Odai' carrying surplus water overflowing from Tank to Velacherry backwater and then to the Sea. During the last rainy season, because of the floods experienced and due to obstruction of surplus waterways, the water in the entire area was blocked for more than a week and this Court issued directions generally to clear the obstruction in waterways carrying surplus water also, so that the floods can be avoided. Considering the directions, the Revenue Department together with the PWD, had started issuing notice to such encroachers by commencing the process of eviction as per the Rules. The petitioner was one among them to be evicted and notice under Section 7 of the Tamil Nadu Land Encroachment Act was issued to him on 21.11.2017 and the respondents tried to serve the said notice on him, but the same was refused by the petitioner and hence, it was pasted on the petitioner's house wall.
13. The learned Additional Government Pleader appearing for the Respondents proceeds to point out that for the purpose of registration of purchase made by the petitioner and his wife, the petitioner has mentioned that the land as S.No.123/1B in the documents, and in fact, the aforestated poramboke land is a part of 'Odai' on ground, carrying surplus water from the Tank and the land was converted into residential area and most of them have constructed houses blocking the course of surplus water.
14. The crystalline stand of the Respondents is that the petitioner had constructed the terraced house in S.No.123/26 which is classified as 'grazing ground poramboke' only and it is just absolutely essential and necessary to evict him to clear the surplus water. In fact, the notice was issued only after survey work, ascertaining that the construction was put up in the Government land. Therefore, the submission of the Respondents is that the Writ Petition is not maintainable either in law or on facts.
15. This Court has heard the learned counsel for the petitioner and the learned Additional Government Pleader appearing for the respondents and noticed their submissions and perused the materials available on record.
16. It is to be noted that the said 'Odai' in this case, is running from South to North. The learned Additional Government Pleader appearing for the respondents has produced a Topo sketch showing the blue colour portion, which is Meikal Poramboke and that in respect of S.No.123 of Kovilambakkam Village, Sholinganallur Taluk, Kanchipuram District, the petitioner's area is marked as yellow colour, which is referred to as S.No.123/26. The learned Additional Government Pleader further states that S.No.123/1B is a patta land and that they are not demolishing the property marked in orange colour belonging to the family members of the petitioner and that they are removing only the encroached portion made by the petitioner.
17. The specific stand put forward before this Court on behalf of the Respondents is that the petitioner has put up the terraced house in the encroached land in S.No.123/26, which is classified as 'grazing ground poramboke' and the respondents are not touching the petitioner's property in S.No.123/1B. Moreover, S.No.123/26, which is a grazing ground poramboke in the Revenue Records, is a part of 'Odai' carrying surplus water overflowing from the Tank to Velacherry backwater and then to the Sea. Therefore, it is not open for the petitioner to remain in S.No.123/26. The total extent in S.No.123/26 measures about 7.77.0 hectares, classified as grazing ground poramboke and the petitioner has encroached the land by putting up the terraced house. At the risk of repetition, this Court significantly mentions that the encroached land measures an extent of 0.01.0 ares and this can be deciphered from the tax receipts issued by the Village Administrative Officer Kovilambakkam in respect of Fasli 1409 (1999) onwards. As this Court is of the considered view that when the respondents have come out with a categorical plea that the petitioner has refused to receive the notice issued under Section 7 of the Tamil Nadu Land Encroachment Act, when the same was served on him on 21.11.2017 and ultimately, the said notice was pasted on the petitioner's House wall.
18. This Court comes to an irresistible and inevitable conclusion that the Respondents, in Law, are entitled to remove the encroachment in S.No.123/26, which is a 'Government grazing poramboke land', in which the petitioner has no right whatsoever. Viewed in this perspective, this Court, in the interest of justice, fair play, equity, good conscience and even as a matter of prudence, directs the Respondents 1 to 3 to remove the encroachment put up by the petitioner in S.No.123/26, which is a 'Government grazing poramboke land' as per the Revenue Records, within four weeks from the date of receipt of a copy of this order. If any assistance from the Police is required by the respondents in removing the encroachment and also demolishing the terraced house put up in an extent of 0.01.0 areas out of total extent of 7.77.0 hectares in S.No.123/26 of Kovilambakkam Village, Sholinganallur Tauk, then it is open for the respondents to seek the assistance of Police and with their aid, the encroachment in question shall be removed in an effective and efficacious manner, so that the surplus water can be cleared and the entire area where the water was blocked, can easily pass through.
19. At this juncture, the learned counsel for the petitioner has filed an affidavit of undertaking today, stating that the petitioner may be given sufficient time so as to enable him to make arrangements to vacate the premises in question by providing alternative accommodation by the respondents. He has also stated that he is having four grand-children and they are studying in School and if he is not given sufficient time, he will be put to great hardship. Therefore, while recording the said undertaking of the petitioner, the petitioner is granted time till 16.04.2018 to vacate the premises in question.
20. In view of the foregoings and directions, the Writ Petition stands dismissed. No costs. Consequently, W.M.P. is closed. The Office of the Registry is directed to list the matter only "for reporting compliance" on 17.04.2018.
(M.V.J) (S.V.N.J)
20.02.2018
Index: Yes
Internet: Yes
Speaking order
cs
To
1. The District Collector,
Kanchipuram,
Kanchipuram District.
2. The Executive Engineer,
Public Works Department,
Kovilambakkam,
Sholinganallur Taluk,
Kanchipuram District.
3. The Thasildar,
Sholinganallur Taluk,
Kanchipuram District.
M.VENUGOPAL, J
and
S.VAIDYANATHAN, J
cs
W.P.No.29991 of 2017
20.02.2018