Madras High Court
Dr. M.G.R. Educational And Research ... vs The Collector Of Thiruvallur District ... on 13 December, 2005
Author: P. Sathasivam
Bench: P. Sathasivam, Chitra Venkataraman
ORDER P. Sathasivam, J.
1. Considering the limited issue raised as well as the urgency and importance involved in the matter, the writ petition itself is taken up for disposal.
2. Dr.MGR Educational and Research Institute (Deemed University), Maduravoyal, Chennai, has prayed this Court to issue a writ of mandamus forbearing the respondents, namely, the Collector, Thiruvallur District, the Commissioner, Ambattur Municipality and the Tahsildar, Ambattur Taluk, from in any manner seeking to demolish or in any manner interfering with the constructions in the petitioner institutions including in respect of the Government lands purchased by them pending finalisation of the request of the petitioner for assignment and regularisation as already sought for in accordance with law.
3. (a) In the affidavit filed in support of the above writ petition, it is stated that the petitioner is a deemed University, sponsored by Tmt.Kannammal Educational Trust. The Trust has been in existence for more than 20 years engaging itself in the cause of imparting professional education in various fields. The institutions have compact block of 20 acres of land in Maduravoyal Village and Mogappair Village. They have all infrastructural facilities. The constructions already put up have been in existence for more than 20 years. There were Government lands contiguous to the patta lands of the petitioners comprised in survey No.430, 432/2, 435 and 442 etc., of Mogappair village and 13/2 and 1 of Maduravoyal village. The aforesaid Government lands are in possession of certain parties for more than 40 years and the petitioner purchased those lands 20 years back by way of regular sale deeds and thereafter put up constructions in those lands to accommodate boys and girls hostel, library and other class rooms.
(b) Since the respondents were trying to interfere with the possession of the said lands and issued notices under the Tamil Nadu Act, 1905, during the year 2001-2002, the petitioner approached the Government with a request for grant of long term lease or out-right sale of the above said Government lands in favour of the Trust. They also submitted a representation on 16.6.2003 to the Government, highlighting all the above facts and requested to consider their claim for sale or lease of land. The said representation is pending with the Government and no orders have been passed yet. So far as other lands belonging to the petitioner in which constructions have been put up, the petitioner had applied to the Chennai Metropolitan Development Authority for regularisation of certain violations in the said constructions and had paid the regularisation fee.
(c) While such is the position, the Ambattur Municipality, the second respondent herein, has served a notice dated 19.11.2005 to the petitioner on 10.12.2005 (Saturday) directing the petitioner to demolish the constructions put up without permission and also to comply with the same within three days. Such an extreme and harsh action has been set in motion without any prior notice and opportunity to the petitioner either under the Land Encroachment Act, 1905 or under any other enactment. Since the proposed action is illegal and contrary to the settled principles of law and in view of the fact that they have already approached the Government for assignment or out-right sale, the respondents are estopped from proceeding with eviction.
4. (a) Pursuant to the notice ordered by this Court, the District Collector, Thiruvallur District, has filed counter affidavit contending that as one third of the land occupied by the petitioner University is a highly objectionable Government watercourse poromboke, action was taken by the third respondent to evict the encroachment as per law. Notice under the Tamil Nadu Land Encroachment Act, 1905 was issued. Based on the direction of the First Bench of this Court, the Special Commissioner of Land Administration issued instructions to the Revenue Divisional Officers and Tahsildar to identify the watercourse poromboke and evict the unlawful encroachments in a phased manner within a period of one month. The Special Commissioner and Commissioner of Land Administration has specifically directed to evict the encroachments in Coovam river poromboke in full compliance of the Court order dated 27.6.2005 in W.P.No.20186 of 2000.
(b) During the recent north-east monsoon, Tamil Nadu received unprecedented rains in four spells, leading to extensive flooding, loss of human life and damage to crops, roads, bridges, culverts, houses and other basic infrastructure. Heavy rains battered Chennai city and suburbs during the months of October-November, 2005, inundating several areas. Many residential areas in Maduravoyal firka were marooned as the free flow of water in Coovam river was obstructed by many encroachments in the river. Moved by the plight of the people, the first respondent/the District Collector, Thiruvallur District, instructed the third respondent/Tahsildar, Ambattur Taluk, to evict the encroachments in watercourse poromboke in order to avoid flooding in low lying areas. Accordingly, the third respondent herein carried out eviction from 7.11.2005 onwards. As there was no response from the petitioner to the notices served on 21.11.2005 and 8.12.2005, the compound walls and cycle stand were removed on 10.12.2005. The hostel rooms were not touched till date as the petitioner requested for two days time on 10.12.2005 to fully vacate the belongings.
(c) Show cause notice under the Land Encroachment Act was served in 2002 itself. As regards the notice dated 10.11.2005, said to have been served on the petitioner on 10.12.2005, it is stated that it is a notice issued under Section 199 of the Tamil Nadu District Municipalities Act, 1920, for the unauthorised construction of buildings ( ground + three floors) in the patta land in survey No.432/1 of Mogappair village, without obtaining permission from the Ambattur Municipality. Inasmuch as the petitioner was served with required notice, there is no question of issuing further notice.
(d) In the proceeding dated 23.10.2005, the request of the petitioner to assign/grant lease of the Government land has been rejected by the District Revenue Officer, Thiruvallur, on the ground that it is a highly objectionable watercourse poromboke.
5. In the light of the above pleadings, we heard Mr.T.R.Rajagopalan, learned Senior Counsel for the petitioner and the learned Advocate General for respondents 1 and 3.
6. Mr.T.R.Rajagopalan, learned Senior Counsel appearing for the petitioner at the foremost submitted that though the buildings have been constructed in poromboke land, inasmuch as the petitioner has applied for either long term lease or out-right sale and the same is pending with the Government, the respondents are not justified in taking action against them. He also contended that when several other obstructions/encroachments are there in Coovam river, the respondents have taken action only against the petitioner. In other words, according to the learned Senior Counsel, the proposed action by the respondents is a discriminatory one. He further contended that as per the judgment of this Court in the decision (L. Krishnan v. State of Tamil Nadu), without proper planning and scheme for removal of all encroachments in the Coovam river, no action should be taken against the petitioner alone.
7. On the other hand, learned Advocate General, after taking us through the averments in the affidavit, would submit that there is no allegation relating to mala fide in the affidavit filed in support of the writ petition, as argued before this Court. He has also contended that the respondents have initiated action in removing all the encroachments/obstructions in the Coovam river right from 7.11.2005 onwards and the authorities will continue till all the encroachments/ obstructions are removed. He further contended that the statutory notice under the Land Encroachment Act has already been issued. According to him, the notice dated 19.11.2005 issued by the second respondent/ Municipality relates to the land in S.No.432/1, which is a patta land and that has nothing to do with the present action by the respondents. Learned Advocate General has also placed a sketch, prepared by the Tahsildar, Ambattur, showing the existence of the encroached area, buildings constructed therein, etc.
8. We have carefully considered the rival contentions.
9. First, let us consider the legal submissions. It is not in dispute that the petitioner institution constructed the building, namely, boys hostel, girls hostel, library, cycle stand, etc., in the Government Poromboke land. Though it is stated in the affidavit that they purchased from various persons by way of pucca sale deeds, in view of their admission that the lands belong to the Government, the same cannot be accepted. We also verified the sketch produced by the learned Advocate General, which shows that the yellow marked area is the poromboke land, wherein the petitioner institution constructed cycle stand, girls hostel, boys hostel and library.
10. Though it is stated that the petitioner has made a representation seeking the Government either for assignment of land on long term basis or for out-right sale, in paragraph 11 of the counter affidavit it is specifically stated that the District Revenue Officer, as early as on 23.10.2005, rejected the request of the petitioner institution on the ground that the buildings lie in a highly objectionable watercourse poromboke.
11. With regard to the discriminatory treatment and the action having been taken against the petitioner institution, the learned Advocate General has brought to our notice the specific information furnished by the District Collector of Thiruvallur District, the first respondent herein, which runs as follows, "... Accordingly, the third respondent carried out eviction in Ambathur on 07.11.2005, in Thandalkazhani on 25.11.2005, in Manali on 25.11.2005, 26.11.2005 & 28.11.2005 in Porur on 10.12.2005 & 11.12.2005 and in Padi on 10.12.2005. The upstream villages of Coovam river Nerkundram, Padi, Mogapair, Nolambur and Maduravoyal were inundated because of encroachments in the Coovam River. The third respondent faced innumerable law and order issues in these areas because of repeated inundation. So encroachments in Coovam river Poramboke were being evicted from 10.12.2005 starting from Rail Nagar in Padi village. Tvl Kannammal Educational Trust have encroached Coovam River Poramboke and other watercourse poramboke lands in Maduravoyal and Mogapair villages and constructed College and Hostel Buildings, Cycle stand and Compound walls, to the effect of reducing the breadth of the Coovam river from over 415 feet to 116 feet. As there was no response from the petitioner to the notices served on 21.11.2005 and 08.12.2005, the compound walls and Cycle Stand were removed on 10.12.2005. The hostel rooms were not touched till date as the petitioner requested for two days time on 10.12.2005 to fully vacate his belongings. The land filling only was removed on 11.11.2005 so as to led the free flow of Coovam river before the next rains."
In addition to the above information by the District Collector, the learned Advocate General has also informed this Court that the Government is determined to remove all the encroachments/obstructions in the entire Coovam river. The above statement is hereby recorded. As rightly pointed out, this cannot be done in a single day. Though the learned Senior Counsel appearing for the petitioner pointed out that without proper planning and scheme, as suggested in the Division Bench order of this Court reported in 2005 (4) CTC 1 (cited supra), the respondents cannot take action against the encroachers including the petitioner, in the light of the abundant information furnished in the counter affidavit of the District Collector as well as the statement of the learned Advocate General, we are of the view that the contention of the learned Senior Counsel cannot be accepted.
12. We have already referred to the fact that the petitioner itself has admitted service of notice under Section 7 of the Tamil Nadu Land Encroachment Act, 1905. It is the grievance of the learned Senior Counsel for the petitioner that the third respondent has not passed an order under Section 6 of the Act. In this regard it is useful to refer the information furnished in para 3 of the counter affidavit. It is seen that notice under Section 7 of the Tamil Nadu Land Encroachment Act was issued to the petitioner on 7.3.2002. Thereafter, a notice under Section 6 of the Act was issued on 21.11.2005. It is further seen that since the said notice was refused to be received by the petitioner, the same was affixed on the building. In the same paragraph, the deponent of the affidavit has also stated that further notice has been sent on 8.12.2005 asking the petitioner institution to remove all the materials/articles in the building. The said notice was also affixed since the same was refused to be received. In such circumstances, the contention relating to violation of the provisions of the Tamil Nadu Land Encroachment Act, 1905, is liable to be rejected.
13. Coming to the notice dated 19.11.2005 of the second respondent, a perusal of the same shows that it relates to the land in S.No.432/1 . Admittedly, it is a patta land of the petitioner Institution. We also verified from the sketch produced by the learned Advocate General and this has nothing to do with the proposed action by the respondent in clearing the obstructions/encroachments in the Coovam river. Hence the said contention is also liable to be rejected.
14. It is not in dispute that during the last two months, the entire State of Tamil Nadu, in particular the city of Madras and its neighbouring districts, received unprecedented rain leading to extensive flood; loss of human life; damage to the crops, roads, bridges, culverts, houses and other basic infrastructure. Heavy rains battered the city of Madras and suburbs during the months of October and November, 2005, inundating several areas and many residential areas like Maduravoyal were marooned as the free flow of water in Coovam river was obstructed by many encroachments like that of the petitioner. We have already referred to the various steps taken by the District Administration. Considering the public interest involved, we are of the view that there is no substance in the claim made by the petitioner. As pointed out earlier, the petitioner has not questioned neither the notice issued under the Tamil Nadu Land Encroachment act, nor the notice of the second respondent issued under the Tamil Nadu District Municipalities Act. Looking at any angle, we do not find any merit in the claim made by the petitioner.
15. Consequently, the writ petition fails and the same is dismissed. The interim injunction granted by us on 10.12.2005 in W.P.No.42652 of 2005 is hereby vacated.
16. At this juncture, the learned Senior Counsel appearing for the petitioner seeks a reasonable time to remove their belongings. He also prays that they may be permitted to demolish the offending building and remove the articles therein. We are not inclined to accede to the said request. However, the petitioner is free to take all their belongings such as library books, computers, if any, and other fittings. The demolition shall be carried out only by the District Administration. The petitioners are granted 24 hours time from now for removal of all their belongings.