Madras High Court
N. Arunachalam And 7 Others vs The Avadi Municipality Rep. By Its ... on 1 September, 1998
Equivalent citations: 1998(2)CTC762
ORDER
1. By order dated 28.7.1998, the petitioner in W.P.No.10748 of 1998 was directed to give notice to the standing counsel for the respondent and directed the said Writ Petition to be posted in the list on 13.8.1998. Till then, the respondent has been directed to maintain the status quo. Since the respondent has filed the counter affidavit, the matter was taken up for final disposal.
2. The petitioners in W.P.No.10749 of 1998, four in number, filed the said Writ Petition for the issuance of a writ of mandamus forbearing the respondent from interfering with the petitioners' peaceful possession and enjoyment of the property situate at S.F.No.39/3, Paruthipattu village, Poonamallee Taluk, Thiruvallur District except otherwise in accordance with law.
3. Admittedly, the petitioners are in occupation of the Government land and they have put up construction. It is the case of the petitioners that the house property constructed by them had been assessed for property tax and they have obtained electricity connection, telephone connection and now the respondent municipality is trying to evict them forcibly. Hence the present writ petition.
4. The respondent has filed a counter affidavit stating that the land is situated adjacent to heavy vehicle factory at Avadi and since the place is required for public use, eviction proceedings had been initiated. The road under dispute is a main arterial road leads to the Defence establishments in Avadi and also for the residential quarters of the staff.
5. The respondent further stated that the Government puromboke land is classified as maichal puromboke and necessary notices under Sections 7 and 6 of the Land Encroachment Act had been issued to the petitioners by the Revenue Authorities and the major portion of the encroachment had been removed on 1.8.1998 and 2.8.1998. On the earlier occasion, the encroachments were removed, but an association by name Iykiya Viyabarigal Sangam filed W.P.No. 11378 of 1986 and obtained an ex parte interim order and thereafter pursuant to the interim order once again, encroached upon the place and put up pucca construction.
6. This Court, by order dated 12.12.1996, dismissed the said writ petition W.P.No. 11378 of 1986 with a direction that the Revenue Authorities must follow the procedure under the said Act, Having failed in the said writ petition, the members of the association, in groups, filed W.P.Nos 16269 to 16277 of 1977, which were also dismissed by this Court on 19.1.1998, as the land is required for the public purpose, viz., for widening the road and also to provide parking lots.
7. The petitioners have filed individual affidavit stating as follows:-
"I have filed the W.P. to protect my possession. However, without prejudice to my contentions, I undertake to hand over possession of the property, if a genuine public cause is shown by the Government."
8. The only contention of the learned counsel for the petitioners is that the disputed land belongs to the Government and the same has not yet been vested with the Municipality and as such, the Municipal Authorities have no jurisdiction to resort to eviction of the petitioners, and the eviction proceedings initiated by the respondents are arbitrary and without jurisdiction.
9. On the contrary, learned counsel for the respondent contended that though the lands are classified as maichal puromboke by the Revenue Authorities and the lands are under the control of the Revenues Authorities for the purpose of ownership and control, the Revenue Authorities had permitted the respondent to initiate eviction proceedings against the encroachers, as the place is required for public use. Because of the encroachments, the width of the road reduced to 20 ft. and the same is causing high congestion due to heavy movement of the people as well vehicles in that place.
10. In view of the dismissal of the earlier writ petitions, it is not open to the petitioners to contend that the respondent cannot resort to the eviction proceedings. Further the Revenue Authorities have also issued a statutory notice as required under the said Act. The petitioners, without challenging the said notice, cannot stop or prevent the eviction proceedings initiated by the respondent jointly with the Revenue Authorities.
11. I have carefully considered the contentions of counsel for either side. There is no dispute with regard to the fact that the petitioners are occupiers of the Government puromboke land. Merely because the possession is for considerably a long period, that may not confer a right on the petitioners seeking a writ of mandamus directing the respondent not to interfere with the possession.
12. In fact, the learned counsel for the petitioners relied upon the judgment in Olga Tellis v Bombay Municipal Corporation, and contended that before ever any eviction proceedings is initiated, the occupiers must be given a notice in advance and as far as possible, they should also be provided with alternate site, since by the eviction proceedings, the occupier are deprived of their livelihood.
13. The law laid down in each case has to be looked into in the context of the particular case and at times, the same cannot be uniformly taken for all circumstances. Considering the facts of the present case, I am of the view that the principles laid down by the Supreme Court in the said pronouncement may not help the petitioners' case.
14. The main grievance of the petitioners in this case is that the respondent municipality has no jurisdiction to evict the petitioners. When the petitioners claim that the Government is the owner of the property, they are expected to implead the revenue authorities in order to ascertain the views of the revenue authorities. Without impleading the revenue authorities, I am of the view that it is not open to the petitioners to contend that the respondent herein has no authority to resort to eviction proceedings.
15. From the counter affidavit filed by the respondent, it is very clear that the revenue authorities have issued necessary notices, as required under the provisions of the said Act. When once the revenue authorities have issued notices requiring the petitioners to vacate and hand over possession, as the place is required for public purpose, it is not open to the petitioners any longer to contend that the revenue authorities are not taking any steps to evict the petitioners and as such, the respondent herein has no jurisdiction to interfere with the possession and enjoyment of the petitioners.
16. As pointed out by the learned counsel for respondent, this Court dismissed the writ petitions of WP. Nos 16269 to 16277 of 1997 and 11378 of 1986. Admittedly, the earlier writ petition W.P.No. l1378 of 1986 is filed by the Sangam. This Court dismissed W.P.No.11378 or 1986 with a direction that the occupiers must be given due notice. After the notice, some of the occupiers filed W.P.No. 16269 to 16277 of 1977 wherein this Court has considered elaborately the contentions of the parties and dismissed the Writ Petitions by order dated 19.1.1998. The Honourable Mr. Justice S.S. Subramani in the said order, has referred to the principles laid down in The Bihar Eastarn Gangetic Fishermen Co-operative Society Limited v. Sipahi Singh and others, . A.P. Christians Medical Educational Society v. Government of Andhra Pradesh and another. , Chief Secretary and others v. Mathai Koriakose and others, , Ranjan Kumar Holder and others v. C.M.D.A. and others, 1997 (1) Cal. W.N 240. Lalla Yeshwant Singh v. Rao Jagadish Singh, AIR 1968 SC 620 and K.K. Varma v. Union of India, and ultimately held that the encroachers are not entitled to proceed under the said Act and the trespassers could be evicted. Further, the learned Judge held that a writ of mandamus can be issued only to direct the authorities to discharge their statutory functions and not to prevent or restrain them from discharging their statutory functions and dismissed the writ petitions.
17. On the same principle, the Writ Petitions are also in my view, liable to be dismissed. However, the learned counsel for the petitioners contended that the petitioners in those writ petitions have not raised the question of jurisdiction of the municipality to initiate eviction proceedings. In this case, the main dispute is with regard to power of the municipality to evict the petitioners. The order in W.P.Nos. 16269 to 16277 of 1997 may not help the respondent and also this Court cannot rely upon the principles laid therein to decide the present writ petition. While advancing such an argument, the learned counsel for the petitioners very fairly conceded that out of 159 encroachers, more than 150 encroachers had already been evicted and only the petitioners herein are to be evicted. When out of 159 encroachers more than 150 encroachers had been evicted and the respondent had resumed possession of the land for the utilisation of space for the public purpose. I am of the view that merely because a technical plea has been raised by the petitioners herein, the public utilisation of space should not be stalled. Even assuming for the purpose of argument that there is some force in the contention of the learned counsel for the petitioners, but still when it is admitted that the Revenue Authorities had issued notices under Sections 7 and 6 of the said Act, it cannot be said that the petitioners are aggrieved persons because of the action taken by the respondent especially when the eviction proceedings has been initiated jointly by the municipality as well as by the Revenue Authorities.
18. In fact, in recent judgment of the Supreme Court in Ahmedabad Municipal Corpn. v Nawab Khan Gulab Khan, , the learned judges lave held that if the encroachment is sighted recently, immediately the authorities have to take proceedings to remove the same. Wherever the encroachment is for considerably a longer period, the occupiers should be granted a reasonable time which the Court has held a minimum of two weeks or ten days would be sufficient requesting them to vacate in the following terms:
"The Constitution does not put an absolute embargo on the deprivation of life of personal liberty but such a deprivation must be according to the procedure, in the given circumstances, fair and reasonable. To become fair, just and reasonable, it would not be enough that the procedure prescribed in law is a formality. It is must be pragmatic and realistic one to meet the given fact situation. No inflexible rule of hearing and due application of mind can be insisted upon in every or all cases. Each case depends upon its own backdrop. The removal of encroachment needs urgent action. But in this behalf what requires to be done by the competent authority is to ensure constant vigil on encroachment of the public places. Sooner the encroachment is removed when sighted, better would be the facilities or convenience for passing or repassing of the pedestrians on the pavements or footpaths facilitating free flow of regulated traffic on the road or use of public places. On the contrary, the longer the delay, the greater will be the danger of permitting the encroachers claiming semblance of right to obstruct removal of the encroachment. If the encroachment is of a recent origin the need to follow the procedure of principle of natural justice could be obviated in that no one has a right to encroach upon the public property and claim the procedure of opportunity of hearing which would be a tardious and time-consuming process leading to putting a premium for high-handed and unauthorised nots of encroachment and unlawful squatting. On the other hand, if the Corporation allows settlement of encroachers for a long time for reasons best known to them, the reasons are not far to seek, then necessarily a modicum of reasonable notice for removal, say two weeks or 10 days, and personal service on the encroachers or substituted service by fixing notice on the property is necessary. If the encroachment is not removed within the specified time, the competent authority would be at liberty to have it removed. That would meet the fairness of procedure and principle of giving opportunity to remove the encroachment voluntarily by the encroachers. On their resistance, necessarily appropriate and reasonable force can be used to have the encroachment removed. Thus considered we hold that the action taken by the appellant Corporation is not violative of principle of natural justice.
It is not in dispute that Rakhial Road is one of the important main road in the city of appellant-Corporation and it needs removal of encroachment for free passing and re-passing of the pedestrians on the pavements/footpaths.'' With regard to the claim of the petitioners before the Supreme Court for allotment of alternate sites, the Supreme Court observed as follows:-
"It is, however, made clear that we are not giving any specific direction in this behalf lest it would amount to encouraging the people to abuse the judicial process to avail of such remedy by encroaching public property."
19. In that latest Supreme Court judgment, it has been further held that the petitioners have no fundamental right to seek for the alternate allotment. When once the petitioners are found to be ranked trespassers, they should not be permitted to take advantage of their own illegal act and as such, it is not open to them to complain the action taken by the respondent. Hence, I am of the view that the writ petition is devoid of merits and the same is dismissed. So far as the counsel for petitioners in W.P.Nos 12714 to 12717 of 1998 is concerned, he fairly represented that already this Court has reserved orders in W.P.No. 10748 of 1998 and the order in the said writ petition would cover issues involved in the writ petitions W.P.No. 12714 to 12717 of 1998. In view of the dismissal of W.P.No. 10748 of 1998, W.P.Nos. 12714 to 12717 of 1998 are also dismissed. No costs. Consequently, W.M.P.Nos 16409, 19387 to 19390 or 1998 are also dismissed.
20. Before I part with the case, I have to observe that nowadays, most of the cases are being filed for a mandamus directing the respondents not to interfere with the possession of the encroachers and similar writ petitions are also filed by the persons aggrieved by such encroachments seeking for a writ of mandamus directing the authorities to remove the encroachment. The nature of the litigation clearly reveals that the executive is not taking immediate steps to prevent the encroachment or at least immediately to remove such encroachments as soon as the same is spotted out. It is not known as to why the revenue authorities are encouraging this sort of encroachments and thereby increasing the litigations before the Court. If the revenue authorities are instructed to keep vigil over the Government property in order to prevent any encroachment or unauthorised construction or occupation, it may not only save the Government property, but also prevent unnecessary increase of litigations before the Court. The Government undertakings like Electricity Board and the Local Bodies should also be restrained from giving electricity supply and other facilities, unless they are satisfied with the ownership of the land and the building, if any building is constructed in the Government property whether it is a puromboke land or otherwise. Without the consent of Government authorities, the Government undertaking should not freely extend their helping hand to give the amenities for the properties, which have been constructed by way of encroachment. This may lead to various inferences in respect of conduct of the authorities, which ultimately affect the reputation of the officers in discharging their statutory functions. The Government is directed to issue necessary directions to the head of the districts in these tines so that at least in future, this sort of dual litigation can be prevented.