Madras High Court
Mariyammal vs The District Collector on 24 August, 2022
Author: Munishwar Nath Bhandari
Bench: Munishwar Nath Bhandari
W.P.Nos.22205 of 2022, etc. batch
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.08.2022
CORAM:
THE HONOURABLE MR.MUNISHWAR NATH BHANDARI, CHIEF JUSTICE
and
THE HONOURABLE MRS.JUSTICE N.MALA
W.P.Nos.22205, 22210, 22212, 22215, 22216, 22213, 22209, 22218,
22219 and 22220 of 2022 and W.M.P.Nos.21240, 21243, 21244,
21238, 21218, 21219, 21223, 21224, 21226, 21227, 21230, 21231,
21232, 21233, 21236, 21237, 21245, 21246, 21247 and 21248 of
2022
W.P.No.22205 of 2022:
Mariyammal .. Petitioner
Vs.
1. The District Collector,
Collectorate,
Chenglepet District.
2. The Tahsildhar,
Cheyyur Taluk,
Cheyyur,
Chenglepet District. .. Respondents
Writ Petition No.22205 of 2022 filed under Article 226 of the
Constitution of India, praying for issuance of a Writ of Certiorarified
Mandamus to call the records of the second respondent pertaining to
notice in Na.Ka.No.5731/2020/Aa1, dated 11.08.2022 and quash the
same and consequently direct the first respondent to issue Patta to the
petitioner based on the recommendation order in Na.Ka.4089/
2007/Aa1, dated 08.12.2009 of the second respondent.
Page No.1/19
https://www.mhc.tn.gov.in/judis
W.P.Nos.22205 of 2022, etc. batch
For petitioners
in all Writ Petitions : Mr.A.Kalaiselvan
For respondents
in all Writ Petition : Mr.J.Ravindran,
Addl. Advocate General
assisted by
Mr.A.Selvendran, Spl.G.P.
COMMON ORDER
(The Common Order of the Court was made by the Honourabe Chief Justice) The writ petitions have been filed to challenge the notices dated 11.08.2022, by which a direction was given to the petitioners to remove the constructions raised in Meikkal land (grazing poramboke land) belonging to the government in S.No.178/3 in Pavunjur Village, Cheyyur Circle, Chenglepet District (erstwhile Kancheepuram District).
2. The challenge to the notices has been made mainly in reference to the recommendation of the Tahsildar, Cheyyur, dated 08.12.2009 and the previous litigation addressed by this Court in reference to the same land.
Page No.2/19 https://www.mhc.tn.gov.in/judis W.P.Nos.22205 of 2022, etc. batch
3. It is submitted that the issue in reference to the land in question, came up for consideration before this Court in a writ petition, being W.P.No.20312 of 2011, decided by order dated 05.09.2011. The writ petition was filed to challenge the proceedings dated 17.08.2011 and to consequently forbear the respondents therein from issuing patta to any one in respect of the grazing grounds (Meikkal Poramboke lands). Paragraphs 4 and 5 of the said order are quoted hereunder:
“4. It is no doubt true that some third parties have encroached the lands in question and the petitioner had given a complaint in that regard to the police. The petitioner had also sent a representation dated 08.10.2007 to the first respondent seeking to prevent the illegal acts committed by the encroachers and since no action was taken, he had filed W.P.No.34116/2007 before this court seeking for a direction to the respondents to retrieve the grazing lands. The said writ petition was disposed of by this court on 30.10.2007 directing the first respondent to dispose of the said representation within the time stipulated in that order.
Pursuant to the same, the second respondent had issued a notice to the petitioner calling upon him to appear for an enquiry on 03.09.2010. He had also Page No.3/19 https://www.mhc.tn.gov.in/judis W.P.Nos.22205 of 2022, etc. batch appeared for the enquiry and submitted his objections. The petitioner had sent a telegram dated 25.07.2011 to the first respondent to comply with the direction given by this court in the said writ petition. Pursuant to the same, the second respondent had sent the communication dated 17.08.2011 to the petitioner, wherein, it is stated as follows:
'on scrutinisation of the application, pursuant to Government order No.854, Revenue Department, dated 30.12.2006, it is ordered to grant free house patta to the inhabitants in the objectionable Government poramboke lands, those who are residing for more than five years. Pursuant to the above said Government Order, with a view to grant free house site patta to the persons who are residing in the above said village survey numbers, necessary proceedings were taken and sanctions were obtained from the concerned Department and a report was forwarded to the District Collector. Therefore, it is hereby informed that we are unable to initiate any action in respect of the application of the petitioner.'
5. It is seen from the above proceedings of the second Page No.4/19 https://www.mhc.tn.gov.in/judis W.P.Nos.22205 of 2022, etc. batch respondent that the encroachments cannot be removed since persons who are in possession of Government Poramboke lands are entitled to house site patta as per G.O.Ms.No.854 dated 30.12.2006, if they are in possession of the same for more than five years. It is also stated therein that a report had been forwarded in that regard to the District Collector. Unless and until the District Collector passes any order based on the report sent to him, the petitioner cannot come to a conclusion that his request for removal of encroachments had not been considered. Hence, we are of the opinion that it is too pre-mature for the petitioner to approach this court at this stage. Consequently, we find no ground to entertain the present writ petition and it is accordingly dismissed. No costs. Connected miscellaneous petition is closed."
4. The direction of the court in the aforesaid writ petition, was in reference to an earlier writ petition, being W.P.No.34116 of 2007, decided by order dated 30.10.2007 directing the first respondent therein to dispose of the representation within a stipulated frame.
Pursuant to the order dated 30.10.2007, a notice was issued to the petitioner calling upon him to appear for enquiry on 03.09.2010. After considering the objection, an order was passed in reference to Page No.5/19 https://www.mhc.tn.gov.in/judis W.P.Nos.22205 of 2022, etc. batch Government Order dated 30.12.2006 to grant free house-site pattas to the inhabitants who are in possession of the objectionable Government Poramboke land for more than five years. Reference to the order dated 30.12.2006 was given without realising that it was for allotment of land or issuance of free house-site patta on the Meikkal land (Grazing land), which is not permissible in the light of the judgment of the Apex Court in the case of Jagpal Singh Vs. State of Punjab, (2011) 11 SCC 396. The relevant paragraphs of the said judgment are quoted hereunder:
"23. Before parting with this case, we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthorised occupants of the Gram Sabha/Gram Panchayat/ poramboke/shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. For this purpose, the Chief Secretaries of all State Governments/Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show-cause notice and a brief hearing.Page No.6/19
https://www.mhc.tn.gov.in/judis W.P.Nos.22205 of 2022, etc. batch Long duration of such illegal occupation are huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularising the illegal possession. Regularisation should only be permitted in exceptional cases e.g., where lease has been granted under some government notification to landless labourers or members of the Scheduled Castes/ Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land.
24. Let a copy of this order be sent to all the Chief Secretaries of all States and Union Territories in India who will ensure strict and prompt compliance with this order and submit compliance reports to this Court from time to time."
5. In the aforesaid judgment, the Apex Court has issued direction to the Chief Secretaries of all the States and Union Territories to issue Circular/Order for eviction of encroachers from poramboke land.
6. The learned Additional Advocate General has clarified that Page No.7/19 https://www.mhc.tn.gov.in/judis W.P.Nos.22205 of 2022, etc. batch the order dated 30.12.2006 issued by the Revenue Department is not applicable to grazing land and, in fact, in the year 2001 itself, a Government Order was issued by the State of Tamil Nadu not to allot the meikkal poramboke land.
7. The facts on record show that ignoring the Government Order passed in the year 2001, the Tashildar has made a recommendation on 08.12.2009 to classify meikkal poramboke land to an extent of 0.07.0 Hectare as Grama Natham for allotment of house plots to the encroachers of the said land.
8. At this stage, we have to once again refer the order of this Court dated 05.09.2011 passed in W.P.No.20312 of 2011, wherein, in paragraph 4, this Court quoted the communication dated 17.8.2011 addressed to the petitioner therein. For ready reference, the quote made in paragraph 4 of the order dated 05.09.2011 is extracted hereunder:
"On scrutinisation of the application, pursuant to Government Order No.854, Revenue Department, Page No.8/19 https://www.mhc.tn.gov.in/judis W.P.Nos.22205 of 2022, etc. batch dated 30.12.2006, it is ordered to grant free house patta to the inhabitants in the objectionable Government poramboke lands, those who are residing for more than five years. Pursuant to the above said Government Order, with a view to grant free house site patta to the persons who are residing in the above said village survey numbers, necessary proceedings were taken and sanctions were obtained from the concerned Department and a report was forwarded to the District Collector. Therefore, it is hereby informed that we are unable to initiate any action in respect of the application of the petitioner."
9. The Court would not have endorsed the decision of the Government in reference to the Government Order dated 30.12.2006 for any purpose, more so for allotment of meikkal poramboke land, if the earlier Government Order of 2001 would have been brought to its notice.
10. Recently, the Apex Court in the case of Rameshbhai Virabhai Chaudhari v. The State of Gujarat, (Civil Appeal No.5135 of 2021, dated 06.09.2021) in regard to grazing land, did Page No.9/19 https://www.mhc.tn.gov.in/judis W.P.Nos.22205 of 2022, etc. batch not endorse regularisation of encroachments on the grazing land. Relevant paragraphs of the judgment of the Apex Court in the case of Rameshbhai Virabhai Chaudhari (supra) are quoted hereunder:
"It is trite to say that gouchar land can be used only for purposes for which it is permitted to be used. If there is a user contary to the permissible user, whether by the State of by any third party, the same cannot go on. Rehabilitation or persons is really not required in the present case as only three persons are entitled to an alternative site s per rules. There is of course some dispute whether the encroachers have made permanent structures or kuchha construction for keeping cattle but be that as it may, the user cannot be contrary to what is being permitted for gouchar land, which is a grazing land.
In view of the aforesaid, a direction is issued to bring the land in conformity with its use by the State Government taking appropriate action within a maximum period of three months from today."
11. In the light of the above, the petitioners could not clarify Page No.10/19 https://www.mhc.tn.gov.in/judis W.P.Nos.22205 of 2022, etc. batch their right to maintain possession in the Meikkal land, when it was not converted to be Natham land or re-classified as Village Natham. No order has been placed on record to show conversion of land or re-classification of land.
12. At this juncture, it is to be pointed out that as per RSO 21(6) of the Standing Orders of the Board of Revenue, the issuance of pattas to eligible persons pursuant to the reclassification can only be upon issuance of specific orders by the Government. At this juncture, it is apt to reproduce RSO 21(6) of the Standing Orders of the Board of Revenue, which reads as under:
"RSO 21(6). Extension of village site: - When the existing village sites is not sufficient for the needs of the resident villagers the Revenue Divisional Officer is competent to transfer the assessed waste to village site poramboke. The proposals for conversion of water courses/sources, grazing ground cattle stand and burial ground should be sent to the Government through the Commissioner of Land Administration after personal inspection by the Collector/District Revenue Officer. Only on receipt Page No.11/19 https://www.mhc.tn.gov.in/judis W.P.Nos.22205 of 2022, etc. batch of specific orders from the Government, eligible persons could be given pattas. In other cases, where the lands are vested in the Municipality/Panchayat the opinion of the concerned local body should be obtained. Subject to this, the Collector is competent to transfer the classification of all un-objectionable Government lands to village site. They may effect such transfers and additions on their own authority, subject to provisions in 15(1)(3) except in the case of assessed land which is not at the disposal of Government and which must be acquired under the Land Acquisition Act."
[emphasis supplied]
13. It is clear from the aforesaid Standing Order that it is only the Government which has the authority to take the decision for conversion of land. In the absence of such an order passed by the Government, the recommendation of the Tahsildar reclassifying the land to an extent of 0.07.0 Hectares as Grama Natham cannot be held to be legal.
14. It may be that a certificate may have been issued by the Joint Director of Animal Husbandry Department for purchase or re- Page No.12/19 https://www.mhc.tn.gov.in/judis W.P.Nos.22205 of 2022, etc. batch classification, but the power of re-classification lies only with the Government and there is no order of the State Government to convert or re-classify the Meikkal (grazing/gauchar) land as Village Natham.
15. In the light of the aforesaid, we do not find any right in favour of the petitioners to retain the land. Acceptance of the claim of the petitioners would otherwise be nothing but offending the judgment of the Supreme Court in the case of Jagpal Singh, supra.
16. Insofar as the claim of the petitioners to regularise their illegal occupation by issuance of pattas, it is appropriate to refer to a decision of the Apex Court in the case of Joginder v. State of Haryana, (2021) 3 SCC 300, wherein it has been emphatically held as under:
"13. It is required to be noted that the persons in illegal occupation of the Government Land/Panchayat Land cannot, as a matter of right, claim regularization. Regularization of the illegal occupation of the Government Page No.13/19 https://www.mhc.tn.gov.in/judis W.P.Nos.22205 of 2022, etc. batch Land/Panchayat Land can only be as per the policy of the State Government and the conditions stipulated in the Rules. If it is found that the conditions stipulated for regularisation have not been fulfilled, such persons in illegal occupation of the Government Land/Panchayat Land are not entitled to regularization. .....
14. At this stage, the decision of this Court in the case of Jagpal Singh v. State of Punjab, (2011) 11 SCC 396, is required to be referred to. In the said decision, this Court had come down heavily upon such trespassers who have illegally encroached upon on the Gram Sabha/Gram Panchayat Land by using muscle powers/money powers and in collusion with the officials and even with the Gram Panchayat. In the said decision, this Court has observed that "such kind of blatant illegalities must not be condoned". It is further observed that "even if there is a construction the same is required to be removed and the possession of the land must be handed back to the Gram Panchayat". It is further observed that "regularizing such illegalities must not be permitted because it is Gram Sabha land which must be kept for the common use of the villagers of the village".Page No.14/19
https://www.mhc.tn.gov.in/judis W.P.Nos.22205 of 2022, etc. batch Thereafter, this Court has issued the following directions:
'23. Before parting with this case, we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthorized occupants of Gram Sabha/Gram Panchayat/ Poramboke/ Shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/ Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession. Regularization should only be permitted in Page No.15/19 https://www.mhc.tn.gov.in/judis W.P.Nos.22205 of 2022, etc. batch exceptional cases e.g. where lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land.' In view of the above also, the prayer of the Petitioners for regularization of their illegal occupation of the panchayat land cannot be accepted."
[emphasis supplied]
17. The decision in Joginder v. State of Haryana, supra, reiterated the view enunciated in Jagpal Singh, supra. In the light of the directions contained in the case of Jagpal Singh v. State of Punjab, supra, it is the bounden duty of the State Government to ensure restoration of such lands for the common use of villagers of the village concerned. The State Government is obligated to make earnest efforts to restore every piece of illegally occupied land which would fall within the orders and directions issued in the case of Jagpal Singh v. State of Punjab, supra. Page No.16/19 https://www.mhc.tn.gov.in/judis W.P.Nos.22205 of 2022, etc. batch
18. This Court, time and again, held that unchecked encroachment of Government land has vastly reduced the area which was reserved in the interest of public and ecological balance. It is the bounden-duty of the officials of the Revenue Department to preserve and protect government lands which have been reserved for specific purposes. Indisputably, such encroachments could not have taken place without the knowledge of the respondent authorities.
19. Before parting with this case, it is necessary to observe that if rampant encroachment of grazing land is regularised, that too, without proper re-classification in accordance with law by the Government, it would lead to encouraging encroachments and the ultimate result would be "making the country a concrete jungle". It would drastically affect the ecology of the State.
20. If we take care of the nature, nature will take care of us. The problem of global warming is prevalent only because of the failure of the human being to take care of the ecology. It is the bounden duty of every citizen to maintain water-bodies, grazing Page No.17/19 https://www.mhc.tn.gov.in/judis W.P.Nos.22205 of 2022, etc. batch land and even forests. Otherwise, if we keep on affecting the nature, it would affect the human beings and it is happening day-in and day-out in the form of natural disasters like Tsunami, Earthquake, etc.
21. In such view of the matter, we are unable to accept the prayer made by the petitioners to direct the Government to issue patta in respect of pasture land.
The Writ Petitions are disposed of with the aforesaid observations. There shall be no order as to costs. Consequently, connected W.M.Ps. are closed.
(M.N.B., C J) (N.M.J) 24.08.2022 Index: Yes/no Speaking Order: Yes/no cs Page No.18/19 https://www.mhc.tn.gov.in/judis W.P.Nos.22205 of 2022, etc. batch THE HONOURABLE CHIEF JUSTICE and N.MALA, J cs W.P.No.22205 of 2022, etc. batch 24.08.2022 Page No.19/19 https://www.mhc.tn.gov.in/judis