Madras High Court
S.Srinivasan vs The State Of Tamilnadu on 19 February, 2018
Author: M.Venugopal
Bench: M.Venugopal, S.Vaidyanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 19.02.2018
Coram
THE HONOURABLE Mr. JUSTICE M.VENUGOPAL
AND
THE HONOURABLE Mr. JUSTICE S.VAIDYANATHAN
W.P.No.31114 of 2017 and
W.M. P.No.34112 of 2017
1.S.Srinivasan
2.K.Lakshmanan
3.M.Ramu
4.Chinaponnu
5.Mariyammal
6.M.Dhandapani
7.S.Selvam
8.R.Arumugam
9.D.Jeeva
10.M.Rangasamy
11.M.Natarajan
12.C.Muthu
13.Murugan
14.S.Rajeswari
15.S.Ganesa Kumar
16.Ponnarasi
17.Annamalai
18.S.Venkatesan
19.Sekar
20.Rani Jayaraman
21.Selvakumar
22.R.Soundari
23.V.G.Kannaiyan
24.Krishnaveni
25.Ranganathan
26.Punniyakoti
27.Tamilvanan
28.S.Raja
29.A.Anjalai
30.M.Rapheal
31.S.Saravanan
32.B.Sekar
33.D.Ramesh
34.Navaneetham
35.Meganathan
36.J.Sumathi
37.Kumari
38.Krishnamurthy
39.A.K.Rajan
40.K.Natarajan
41.K.Arumugam
42.Dhanalakshmi
43.J.Valli
44.M.Arumugam
45.K.Lakshmi
46.J.A.Valli
47.Srinivasan
48.Annammal
49.S.Kumudha
50.N.M.Kabali
51.Thirumurthi
52.G.Kanniyappan
53.E.Muniyammal
54.Sanjai kumar
55.A.Anandan
56.Jayalakshmi
57.S.Saroja
58.P.Mohanaj
59.P.Saravanan
60.P.Mohanasundaram
61.P.Sekar
62.G.Chandrasekar
63.K.Velusamy
64.K.Vijayaraj
65.C.Vijaya
66.N.Vedagiri
67.S.Vasuki
68.N.Ganapathi
69.K.Ravi
70.D.Mani
71.Thiruvenkadam
72.Selvi
73.Poongavanam
74.Dhuraisamy
75.Jagathambal
76.Shanthi
77.Karunai Selvam
78.G.Sankar
79.K.Vasantha
80.G.E.Balan
81.A.Karupiah
82.P.Sivagami
83.M.Loganayaki
84.Rajaram
85.S.Muniyammal
86.M.Shanker
87.A.Arumugam
88.Malliga
89.S.Govindaraj
90.E.Kannan .. Petitioners
Vs.
1. The State of Tamilnadu
Rep. By its Secretary,
Department of Housing and Urban Development,
Fort St. George,
Chennai 600 009
2. The State of Tamilnadu,
represented by its Secretary to Government,
Public Works Department,
Fort St. George, Chennai- 600009.
3. The Chairman and the Managing Director,
Tamilnadu Slum Clearance Board,
Kamarajar Salai, Chennai 600 009
4. The Collector of Chennai
Rajaji Salai, Chennai 6000 001
5. The Commissioner,
Corporation of Chennai,
Ripon Buildings,
Chennai 600 003
6. The Executive Engineer, PWD
(WRO) (Araniyar Basic Division)
Chepauk, Chennai 600 005
7. The Assistant Commissioner,
Zone XIII, Chennai Corporation
Dr.Muthulakshmi Road,
Adayar, Chennai 600 020
8. The Executive Engineer,
Division VI, Tamilnadu Slum Clearance Board,
Chennai 600 018
9. The Tahsildar,
Mylapore Taluk,
Chennai 600 028
10. Rajiv Rai ..Respondents
Writ Petition filed under Article 226 of Constitution of India for issuance of a Writ of Mandamus forbearing Respondents 1 to 9 from evicting the Petitioners from their properties situated in Survey No.3961/3, Elango street, Govindasamy Nagar, Chennai 600 028 and pass further orders.
For Petitioners : Mr.Anirudh
For Respondents : Mr.A.N.Thambidurai, for R1, R2, R4, R6 and R9
Special Government Pleader
Mr.K.Soundarrajan, for R5, R7
Mr.S.Prabhu for R3 and R8
Mrs.M.R.Preethi for
Mr.Roshan Balasubramaniam for R10
O R D E R
[Order of the Court was made by S.VAIDYANATHAN, J.] Petitioners have come forward with this Writ Petition, seeking to forbear the official Respondents from evicting them from the property, viz., in Survey No.3961/3, Elango street, Govindasamy Nagar, Chennai 600 028.
2. The case of the Petitioners are as follows:-
(i) Petitioners have been residing in Elango Street, Govindasamy Nagar, Chennai for more than 40 years and that the encroached area has been notified as 'Slum Area' by Tamilnadu Slum Clearance Board as per G.O.(Ms) No.163 dated 28.02.1993. While so, the 10th respondent viz., Rajiv Rai has filed W.P.No.9494 of 2006 before this Court stating that he is the owner of the property in Re-Survey No.3957/2 and that there are several encroachments in Elango Street and sought for a direction to remove the encroachments in the said area. It has been found by the authorities that there are encroachments in the subject land in question. Hence, this Court, on 05.04.2006 directed the removal of encroachments in W.P.No.9494 of 2006.
(ii) On 21.07.2006, the Commissioner of Corporation sent a communication to the 10th respondent and that the encroachments have been made in the land, which belongs to Public Works Department and that a letter was addressed to the Collector of Chennai for removal of encroachments. Yet another Writ Petition was filed by the 10th respondent in W.P.No.3273 of 2008, wherein, he had contended that he was residing in Elango street and that the respondents have to remove the encroachments within a time bound period. This Court, on 13.03.2008 in W.P.No.3273 of 2008 directed the authorities concerned to remove the encroachments. However, the said order dated 13.03.2008 was challenged by some of the petitioners before the Supreme Court in SLP(C) No.25401-25403 of 2009. The Supreme Court had passed an order, dated 11.02.2011 with a direction to remove the encroachers after providing alternative accommodation.
(iii) The Tamilnadu Slum Clearance Board, by the proceedings No.G6/11928/2008, dated 01.01.2014, concluded that there are 366 encroachers. Therefore, only 366 persons were removed and the petitioners have not been removed, since they have not encroached the canal. In the meantime, the 10th respondent filed a Contempt Petition before the Supreme Court in Cont.P.Nos.844-846 of 2015 against the official respondents on the ground that they have disobeyed the orders of the Supreme Court passed in SLP(C) No.25401-25403 of 2009 dated 11.02.2011.
(iv) Since the petitioners apprehended that they may also be removed from their property, they filed an Interlocutory Application for impleadment in the Contempt Petition. However, the Supreme Court in the Interlocutory Application filed by the Petitioners, on 23.10.2017, passed an order granting liberty to the Petitioners approach this Court and establish that they are not encroachers. The relevant paragraph is extracted hereunder:
This Interlocutory Application for impleadment is dismissed without prejudice to the liberty available to the applicants to approach the appropriate forum in case they are not encroachers
(v) That apart, the petitioners' case is that the subject land in question originally belonged to PWD and the same was acquired by the Tamilnadu Slum Clearance Board in the year 1973 and thereafter, the said land was allotted to them and hence they are not encroachers. However, the respondents have come forward with the contention that the subject land in question belongs to Slum Clearance Board, more particularly, the fact that the petitioners were residing for more than four decades was not been taken into account. Besides the above, fresh enumeration was done by the Tamilnadu Slum Clearance Board and only 366 families, who were identified to be encroachers out of 625, approached this Court earlier and that P.W.D have no jurisdiction to evict the petitioners, who are in possession of the subject property by the allotment made by the Tamilnadu Slum Clearance Board.
(vi) The petitioners drew the attention of this Court to the notification published in the Tamilnadu Government Gazette G.O.Ms.No.163, Housing dated 28.02.1973 issued by the Tamilnadu Government Gazette Supplement to Part II-Section I, wherein, Sl.No.59 is mentioned as 'Govindasamy Nagar Slum, Part II' and the area noted is Block No.37, 3761-3 and the square meter referred to is 2,137 and 41.4.
2. The learned counsel for the petitioners would submit that when the 10th Respondent filed a Writ Petition, the petitioners herein were made as parties and that there are two areas in and around Buckingham Canal and that the area in which the petitioners reside, viz., southern side is not one of the subject lands of encroachment.
3. Learned Counsel for the petitioners reiterated that a place has been allotted to the Slum Clearance Board and when liberty has been granted by the Apex Court in Contempt Petition C.Nos.844-846 of 2015 dated 23.10.2017, the petitioners have approached this Court to establish that they are not encroachers. He further submitted that all the persons have paid necessary property taxes and water charges and are possessing Aadhar card and other evidences to show that they are residents of that place and that to an extent of less than 500 Sq.Ft, there is no need to obtain any permission or plan from any one, much less from the official respondents in the Writ Petition for constructing building.
4. Learned Counsel for the Petitioner also drew the attention of this Court to the communication from the Tahsildar, Chennai to the Chairman and Managing Director, Tamilnadu Slum Clearance Board, Chennai 600 009, wherein it has been stated that 'another row of houses lying on the Southern Side of Elango street, are not abutting Buckingham canal etc., and that the plots were measured and each of the allottee is allotted with only 420 sq.ft and that they have constructed the building and lands have been allotted to them by the Tamilnadu Slum Clearance Board' It is contended by the petitioners that when the area is notified as slum, the petitioners cannot be evicted by any one much less, the respondents in the writ petition.
5. Per contra, it is stated by respondents 3 and 8, by way of counter dated 16.02.2018 that the entire encroachers numbering 625 were residing in 3961/3 classified as 'Buckingham Canal' belonging to PWD and the land till date is not transferred from PWD and not acquired by the Tamilnadu Slum Clearance Board for taking any one of the development schemes in that area of Govindasamy Nagar and Elango street. The entire residents residing in survey no.3961/3 are presumed to be encroachers and are liable for eviction by PWD. The Tamilnadu Slum Clearance Board is ready to give allotment to the encroachers, if they are evicted by the Land Owning Department.
6. Besides the above, respondents 3 and 8 have stated in their counter that according to the Slum Clearance Board, they have issued orders to 366 persons out of 625 encroachers, who were residing very close to the canal. The PWD removed the said 366 persons and the houses were allotted to them by the Tamilnadu Slum Clearance Board, under Tenemental Scheme in Okkiyam-Thoraipakkam and the left-out expanded family members numbering 42 among 366 encroachers also vacated from the site and allotment was made at Ezhil nagar, Perumbakkam Scheme. Remaining 259 (625-366) encroachers could not be evicted by PWD due to heavy resistance from the residents, till date, even though Tamilnadu Slum Clearance Board is ready for issuing allotments to the affected families.
7. The 6th respondent has filed a status report dated December, 2017, wherein, it has been pointed out that the site at Survey No.3961/3, Mylapore village situated on the Buckingham Canal is under the control of PWD. He further stated that pursuant to the order passed by the Apex Court in Contempt Petition Nos.315-317/2015 in SLP Nos.25401 to 25403 of 2009 filed by one Rajiv Rai, about 366 encroachments abutting the canal bank were evicted and rehabilitated by the PWD during the month of August 2015 and that PWD has initiated action to evict the remaining 259 encroachments along the eastern side of Elango Street, Govindasamy Nagar, R.A.Puram, Chennai 28. After eviction of encroachments abutting the canal bank, a clear set back of 40-45 feet space is available from the existing structures of Elango Street, Govindasamy Nagar. It is also stated that the Police Department was informed to provide necessary bandobust in order to remove the encroachments, as due to stiff resistance, encroachments could not be removed.
8. The 7th respondent has also filed a report dated 09.12.2017, wherein it has been stated that joint inspection was conducted to ascertain as to whether super structure / construction has been done in accordance with the sanctioned plan or not and if sanctioned plan is available,whether it is in consistence with the sanctioned plan. Further, it was found that at the time of inspection, the disputed area had 103 dwelling units and the details of the constructions are as follows:-
1.No. of Public Convenience Site 1 No.
2.No. of pumping state site - 1 No.
3.No. of vacant site, dilapidated building 2 nos.
4.No. of AC sheet building - 34 nos.
5.No. of permanent structures with partly R.C.C and A.C. Sheet in Ground and first floor - 25 nos.
6.No. of permanent structures with ground floor and first floor 40 nos.
9. Futhermore, in the report filed by the 7th respondent, it is stated that Survey No.3961/3, Mylapore village, is situated on the southern side of Buckingham Canal and the same is under the control of P.W.D. It is stated that notice has been issued calling for the approved plan on 14.12.2017 and further stated that construction has been made in the water ways and during the monsoon season and at flood times, all the encroached areas had caused damage to the people living in that area. For their relief measure, the Government has incurred heavy expenditure by providing food and shelter and even though the petitioners are assessed to property tax, they are not entitled to claim the property. Merely because roads and basic amenities are provided, it does not mean that the encroachers are having title over the property and they cannot reside in the encroached place. The 10th respondent being the owner of the property at No.6/13, Park Avenue, Kesavaperumalpuram, Chennai 28 has approached this Court for removing the encroachments abutting the Buckingham Canal.
10. Per contra, the contesting respondent no.10 has filed a counter, stating that the petitioners are approaching this Court by filing one writ petition or the other and thereby, not allowing the officials to complete the removal of encroachments. According to him, there is suppression of facts with regard to the various proceedings, which has been disposed of by this Court and the vital facts have not been brought to the notice of the Apex Court. He further submitted that more than 150 encroachers have approached this Court by filing W.P.No.26725 of 2015 for a positive direction to grant them patta on the basis that the area in question was notified as 'Slum' and 36 out of 53 persons are petitioners in this writ petition, including the one, who has filed affidavit. It is stated that the aforesaid writ petition was withdrawn without any Leave to file a fresh Writ Petition on the same or similar cause of action, as could be seen from the order dated 28.09.2016, relevant portion of which is extracted below:
The learned counsel for the petitioner seeks to withdraw the writ petition. Endorsement has been made.
2. The writ petition is dismissed as withdrawn. No costs. Consequently, M.P.no.1 of 2015 is closed.
11. According to the 10th Respondent, the Petitioners in W.P.No.26725 of 2015 have suppressed the fact that a number of them were parties to SLP.Nos.25401 to 25403 of 2009 and covered by the order of the Apex Court, dated 11.02.2011. According to him, the Hon'ble First Bench of this Court is inclined to impose costs for abuse of process in addition to dismissing W.P.No.26725 of 2015 on merits, if pressed. This would also be evident from the order made in W.P.No.25530 of 2015, which, on the same day was dismissed on merits (instead of being withdrawn) as the petitioners therein were not parties to the SLP mentioned supra.
12.The learned Counsel for the 10th respondent submitted that when the petitioners have lost positive right for obtaining necessary patta, they are encroachers and they are not entitled to any other relief seeking a direction not to evict them. Further, when the matter was heard by the Apex Court, these facts were not brought to their attention. Had this been brought to the attention of the Supreme Court, it would not have granted the relief of permitting the petitioners to approach the appropriate forum. Further, in the counter, the list of names of the persons were given and that one Srinivasan, who is the first petitioner in the present Writ Petition was the 2nd petitioner in W.P.No.26725 of 2015 and some of the petitioners, who were parties to the earlier writ petition were also parties to the Special Leave Petition mentioned supra.
13. According to the 10th Respondent, the petitioners claims to be the residents in Survey No.3961/3. In the joint inspection report dated 12.03.2008 filed in W.P.No.3273 of 2008, it has been categorically mentioned by the Tahsildar and P.W.D officials that the said survey number forms part with Buckingham Canal and it crosses Kamaraj salai and Greenways salai and that the petitioners have also admitted in Paragraph No.6 of the Affidavit that the land belongs to PWD, which is also indicative of the fact that it is actually a water body. There is no reason as to why joint inspection report has not disclosed that the entire buckingham canal has been declared as a National Waterway (Kakinada-Puducherry stretch of Canals and the Kaluvelly Tank, Bhadrachalam Rajahmundry Stretch of River Godavari and Wazirabad Vijayawada Stretch of River Krishna) Act, 2008 as early as on 25.11.2008. The said Act was later repealed by the National Waterways Act, 2016, but the entire buckingham canal continues to remain nationalised for the purpose of Inland Waterways. Therefore, the State Government lacks authority in regularising unauthorised constructions or encroachments on the banks of Buckingham Canal. The entire issue was in fact, considered and dealt with by the Hon'ble First Bench by a series of orders passed in W.P.No.6609 of 2014, wherein, it has been held that the State Government has no power to regularise encroachments on the Buckingham Canal or its Banks. It is pertinent to note that despite nationalization of Buckingham Canal, the responsibility of removing encroachments still lies upon the State Government / PWD. The State Government ought to have obeyed the order of the Apex Court, in true letter and spirit. He further submitted that he had furnished 'fresh enumeration' on 09.01.2014 and that, it consists of two enumerated parts. The first is dated 09.01.2014 and the Second one dated 30.01.2014 (which is in continuation of proceedings dated 09.01.2014) identifies an additional 259 encroachers. The 1st petitioner knowing the fact that he is in the Second Part of the enumerated list dated 30.01.2014 had questioned that notification in W.P.No.22662 of 2015 and the same was disposed of by an order dated 28.07.2015.
14. According to the 10th respondent, when it has been identified that there are 259 encroachers, which fact has been admitted by the petitioners, suppressing those details and approaching this Court by way of another writ petition and also not disclosing the fact to the Apex Court and getting an order that the writ petitioners are not encroachers, would amount to approaching this Court with unclean hands and that the petitioners should not be shown any indulgence.
15. The 10th respondent further stated that G.O.Ms.No.163, Housing (F) Department, dated 28.02.1973 deals with different survey number and the document filed by the petitioners only indicates that Survey No.3761/3 in Govindaswamy Nagar was declared a slum, whereas, the petitioners, however, claim in paragraph no.4 of their affidavit that they reside in Survey No.3961/3 in Govindaswamy Nagar. He further submitted that the petitioners have not produced any notification under Section 11 or any Gazette Notification of a declaration under Section 11 of the Act, which is mandatory, if the Slum Clearance Board is acquiring any land. In this case, the land belongs to Government / PWD and that the contention of the petitioners that there is total violation of the provisions of the Slum Clearance Act, may not be attracted to the facts of this case. It is further stated that the protection from the occupants of a slum area, as provided under Section 29 of the Act, does not apply at all, if it is the Government or a local body that is carrying out eviction, as Section 33 of the Act excludes the application of Chapter VII to the Government or any local body.
16. According to the 10th Respondent, all the encroachers have got to be evicted and that the contention of the petitioners that the 10th respondent is also an encroacher is not correct and that he has constructed the building in accordance with the approved plan and the land has been purchased in terms of the provisions of the Transfer of Property Act.
17. Heard the learned counsel for all the parties and perused the documents placed on record.
18. The sum and substance of the issue on hand is that the concerned 259 persons to whom the allotments are to be made by the Tamilnadu Slum Clearance Board are encroachers and some of them are before this Court. The petitioners for reasons best known to them, on selective basis, have approached this Court and Apex Court by not making other petitioners as parties to the proceedings, may be they would like to squat over the property some how or the other without allowing the authorities to remove the encroachments.
19. That apart, as could be seen from the documents produced by the parties, more particularly by the Slum Clearance Board, the entire area was notified as a Slum area by the Slum Clearance Board as per G.O.(Ms) No.163 dated 28.02.1973. It is no doubt true that the petitioners have no title over the property and that they are some of the persons, who have approached this Court and the Apex Court. A reading of the order of the Apex Court dated 11.02.2011 in S.L.P.Nos.25401-25403 of 2009 would make it clear that the Petitioners have not brought to the attention of this Court about the enumeration of Second list. On a perusal of the pleadings of the Petitioners, this Court finds that the Petitioners wanted patta, thereafter, not to remove them except in accordance with law and if they are allotted another place, they are willing to shift and finally, they have come forward with a plea that the place in question does not fall under the encroachment area / Buckingham Canal and it is a different place and that there are only 625 persons, out of which 366 persons have been allotted an alternative place.
20. A further reading of the pleadings would make it very clear that 259 persons have been identified as additional encroachers and some of them have approached this Court, while others including the petitioners, who are encroachers on the southern side abutting Buckingham Canal approached the Apex Court. Even though there is a notification that the area in question is a Slum, there is no declaration under Section 11 of the Slum Clearance Act.
21. This Court, on 28.07.2015 in W.P.No.22662 of 2015, filed by the petitioner therein, questioning the enumerated list dated 30.01.2014 identifying that the petitioner's house is on the southern side of Elango Street, Govindasamy Nagar, R.A.Puram, Chennai, had disposed of the said Writ Petition [where one of us, M.V.J. was a party to the Writ Petition] holding that 'without expressing any opinion on the dispute, we reserve liberty to the petitioner to make representation to the impugned order and thereafter, the authorities were directed to take fresh decision' From the said order and from the pleadings, it is very clear that petitioners are not the owners of the property and that they had sought for issuance of patta, not to remove them except in accordance with law, and, if they are allotted another place, they are willing to shift, and finally, they have come forward with a plea that the place in question does not fall under the encroachment area / Buckingham Canal and it is a different place.
22. It is worth referring to a Full Bench decision of this Court in W.P.No.1294 of 2009, dated 30.10.2015 (T.K.Shanmugam Vs. The State of Tamil nadu and others), wherein, the Full Bench has exhaustively dealt with the encroachment on water bodies, relevant portions of which, are extracted hereunder:
"12. A Public Interest Litigation was filed by one Mr.L.Krishnan seeking for a direction against the Government and the Revenue Officials to remove encroachments made by certain private parties in a Odai Poraomboke in Villupuram District. While disposing of the Writ Petition, the Division Bench pointed out that ponds, tanks and lakes have been an essential part of the people's natural resources, however in recent years, these have been illegally encroached by unscrupulous persons and this has had adverse effect on the lives of the people. Further, it was pointed out that day in and day out, many petitions are filed by way of Public Interest Litigation alleging encroachments into ponds/tanks/lakes/odai Poramboke etc., in different parts of the State, more particularly in villages. Having regard to the acute water scarcity prevailing in the State of Tamil Nadu, it was pointed out that a time has come where the State has to take some definite measures to restore the already earmarked water storage tanks, ponds and lakes as disclosed in the revenue records to its original states as part of its rain water harvesting scheme. The Court took judicial notice of the action initiated by the State Government by implementing the water harvesting scheme as a time bound programme. It was further pointed out that it is imperative that such natural resources provided for water shortage facilities are maintained by the State Government by taking all possible steps both by taking preventive measures as well as by removal of unlawful encroachments. After referring to the decision of the Hon'ble Supreme Court in the case of Hinch Lal Tiwari Vs. Kamal Devi reported in 2001 (6) SCC 496, it was held that the endeavour of the State should be to protect the material resources like Forests, Tanks, Ponds etc., in order to maintain ecological balance, which would pave the way to provide a healthy environment and enable the people to enjoy a quality life, which is essence of the right guaranteed under Article 21 of the Constitution. It was further held that in the State of Tamil Nadu having regard to the precarious water situation prevailing in the major part of the year, it is imperative that such noted water storage resources, such as tanks, odai, oornis, canals etc are not obliterated by encroachers. Reference was also made to Article 48-A of the Constitution. The Division Bench after referring to the other decisions of the Hon'ble Supreme Court in Kesavananda Bharathi Vs. State of Kerala reported in 1973 (4) SCC 225; Animal and Environment Legal Defence Fund Vs. UOI, reported in 1997 (3) SCC 549; M.C.Metha Vs. UOI reported in 1997 (3) SCC 715, issued certain directions. The directions issued were two fold, firstly, a positive direction to remove the encroachments over odai poramboke which was complained of in the said Public Interest Litigation, secondly, a direction to the State Government to identify all such natural water resources in different parts of the State and wherever illegal encroachments are found, initiate appropriate steps in accordance with the relevant provisions of law for restoring such natural water storage resources which have been classified as such in the revenue records to its original position so that the suffering of the people of the State due to water shortage is ameliorated.
... ...
18. In the case of Jagpal Singh (Jagpal Singh Vs. State of Punjab - 2011 (11) SCC 396), certain trespassers unauthorisedly occupied an extent of land in a village which was a pond and the trespassers filled the village pond and made construction thereon. Action for eviction of the unauthorised occupants was initiated, but the Collector, Patiala, held that it would not be in public interest to dispossess the encroachers and directed the Grama Panchayat to recover the cost of the land, thus regularising the illegality. On appeal by some third parties to the Commissioner, the order of the Collector was set aside, holding that the Grama Panchayat was colluding with the encroachers. The Commissioner held that the village pond has been used for the common purpose of the villagers and cannot be encroached upon by any private parties. Against the order of the Comm, a Writ Petition was filed before the High Court which was dismissed by the learned single Judge and affirmed by the Division Bench. This order was put to challenge before the Hon'ble Supreme Court wherein it was pointed out that the appellants therein were trespassers who illegally encroached on the Grama Panchayat lands by using muscle power and money power in collusion with officials of the Grama Panchayat and such kind of patent illegality must not be condoned and even if houses have been built on the land in question they must be ordered to be removed and the possession of the land must be handed back to the Grama Panchayat. It was further pointed out that many State Governments have been issuing orders permitting allotment of Grama Sabha land to private persons on payment of some money and all such Government Orders are illegal and should be ignored. ... ....
20. In the case of R.Lakshmnan (Division Bench of Madurai Bench of Madras High Court in W.P.(MD).No.1496 of 2014, dated 06.08.2014, R.Lakshmnan Vs. Government of Tamil Nadu and others), a Public Interest Litigation was filed before the Madurai Bench of this Court to restore the capacity of the water bodies as on date of the 1923 survey. The Writ Petition was disposed of by directing the Government to issue appropriate direction which should be mandatory in nature to all local bodies, including Corporation, Municipalities and Panchayats not to grant any planning permission for any construction that is put up in a water body and not to grant approval for any lay out or building plan, if the land is located either in part or in whole, in a water body and directing the Government to contemplate issuing of an order under the Tamil Nadu Town and Country Planning Act making it mandatory to enclose a certificate of the Revenue Authority along with building plan application, certifying that no part of the land is located in a water body and wrong information if provided, the person who issued the certificate to be held responsible. .. ...
21. .. ... .... General Instructions given for Land Administration states that encroachments in poramboke lands like water sources/courses, gracing grounds, temple lands, kalam, etc., are considered as highly objectionable and these encroachments have to be evicted. The Revenue, Public Works and Highways Department authorities and local bodies like Municipalities and Corporation have been empowered to evict unauthorised encroachments after giving due notice under the Tamil Nadu Land Encroachment Act, 1905, for which a District Level Committee under the Chairman of the District Collector has been constituted. .. ..
... ...
30. ... ... It is to be noted at this juncture, during summer, water bodies would appear dry, but during rainy days/monsoon, stream would be in place to drain/take the water to the water bodies and percolation takes place which in all probability results in surcharge of ground water. Thus, on account of the default of the Revenue officials or on account of collusion of official machinery with encroachers can hardly be a premium to justify encroachments. The theory of adverse possession, would not stand attracted in such cases. The encroachers are in fact trespassers into Government property. In terms of the Standing Orders of the Board of Revenue, the Village Administrative Officer has a duty to report any encroachment in any Government land in his village. The present scenario of rampant encroachment is on account of the failure of the Revenue Administration to protect Government lands. ... ... If such acts of trespassers/encroachers are to be treated as pardonable and be rewarded for their illegal act in the form of regularisation/accommodation to say the least, it would be an absolute degradation and collapse of the public trust vested with the State to protect the lands and water bodies. If the Government is interested in allocating the poor and downtrodden, it should bring out a scheme for rehabilitating them and not to condone their act of trespass, reclassify the law and then grant patta to those encroachers.
... ...
32. ... .. Thus it is the duty of the State to protect, conserve and augment traditional water retaining structures.
... ...
44. ... .... Moreover, Article 51-A of the Constitution of India enjoins that it shall be the duty of every citizen of India, inter alia, to protect and improve the national environment including forests, lakes, rivers, wildlife and to have compassion for living creatures. This Article is not only fundamental in the governance of the country but a duty on the State to apply these principles in making laws and further to be kept in mind in understanding the scope and purport of the fundamental rights guaranteed by the Constitution including Articles 14, 19 and 21 of the Constitution and also the various laws enacted by Parliament and the State Legislatures. But unfortunately, the State, by passing the above said Government Orders, actively encourages encroachers of water bodies, to indulge in illegal and unlawful activities and also bent upon regularising their possession which has to be deprecated.
45. .. .... and that the tanks which do not fall within the purview of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007, also require protection from encroachment and any encroachment made in such tanks or water bodies have to be removed by following the provisions of the Tamil Nadu Land Encroachment Act, 1905. .. ..."
23. Further, a Division Bench of this Court, by an order dated 27.11.2015, in W.P.No.1295 of 2009, following the above said Full Bench decision of this Court, has held as under:
"3. ... .... Cases of encroachment on water bodies are really alarming. Water bodies are potential source for drinking water for human and cattle. Only with a view to protect the same and to help the environment and develop ecology, the Government has enacted the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007 (Tamil Nadu Act 8 of 2007). The very object of the Act is to find the exact boundary of each Tank in Tamil Nadu and also to detect encroachments for eviction as per the procedure laid down in the said Act. .. .. Occupation of the water bodies by way of encroachment will deprive water to the public in larger interest ignoring the Public Trust Doctrine.
.. ...
17. The Hon'ble Supreme Court as well as this Court, in a catena of decisions, have time and again held that no encroachment should be tolerated over the water bodies which constitute part of the precious natural resources.
....
19. ... ... The fact remains that the encroachers have been issued with eviction notice in accordance with the provisions of the Act. Therefore, the petitioner in the guise of representing the encroachers, has got no vested right to prevent the encroachment being removed, that too, to restore the water body. On the other hand, the encroachers are bound to vacate and hand over vacant possession of the property.
20. ... ... Further, assuming that the said families have been in possession of the property for a considerable period, that would not confer any right on them over the land for the simple reason that admittedly, they are encroachers, that too, in a water body, which needs to be protected in the interest of public.
... ....
26. At this juncture, this Court, taking judicial notice of the fact that even during the hearing of this case, the State of Tamil Nadu is seriously affected by unprecedented floods, i.e. during November 2015, and because of that, number of people were dead and many people lost their property, is compelled to put its views that the entire loss due to the flood was due to maladministration and the prevailing practices by the authorities as almost all the water bodies and water courses were allowed to be encroached upon resulting in reduction in their flood storing and carrying capacity, forcing the water to deviate from its regular course and enter the residential areas causing devastating effects. The authorities have permitted construction of houses in the water bodies. This resulted in inundation of these areas during flood and all these houses submerged under the flood water. This shows that despite the orders of the Court, the authorities pretend to act swiftly in removing encroachments but only in a selective manner and not in a planned and determined manner.
27. It has become inevitable for this Court to put on record that the authorities in power cannot destroy the water bodies or water courses formed naturally for the benefit of mankind for ever and it is beyond the power of the State to alienate or re-classify the water bodies for some other purposes without compensating the effect of such water bodies.
28. That apart, while answering the reference in a Writ Petition filed at the instance of the petitioner herein, viz., T.K.Shanmugam Vs. State of Tamil Nadu (2015 (5) LW 397), the Full bench of this Court, after considering the various Government Orders and the judgments of this Court and also following the observations and directions issued by the Hon'ble Apex Court, vide order dated 30.10.2015, has held that even the tanks which do not fall within the purview of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007, also require protection from encroachment and any encroachment made in such tanks or water bodies have to be removed by following the provisions of the Act.
29. ... .... Having regard to the acute water scarcity recurring in the State of Tamil Nadu as a whole, we feel that a time has come where the State has to take some definite measures to restore the already earmarked water storage tanks, ponds and lakes, to its original status as part of its rain water harvesting scheme, which has already been initiated.
.... ... "
24. Considering the submissions of the respective parties and upon perusal of the counter affidavits / status report / report filed by the respective respondents, this Court is of the view that the petitioners are encroachers and they are not entitled to reside / continue to occupy in the present place. It is open to the petitioners to take the alternative site provided by the Slum Clearance Board within a period of one month from the date of receipt of a copy of this order and occupy the place before 15th June 2018, as there is a possibility of the children of these encroachers, taking up examination in the months of March and April 2018.
25. Also, this Court makes it clear that, if no consent is given by any of the encroachers within the time stipulated supra, it is open to the concerned respondent to allot the site to some other person based on their seniority and that the petitioners cannot plead at a later date, that they have not been allotted alternative site. Further, this Court is of the view that there is suppression of facts by the violators, not only before this Court, but also before the Apex Court. However, taking note of the arguments advanced by the learned Junior Counsel in a pleasing manner, we are not inclined to impose any costs.
With the above said directions and observations this Writ Petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed. Post under the caption 'for reporting compliance' on 13.07.2018.
(M.V.J.) (S.V.N.J.)
19.02.2018
Speaking order / Non speaking order
Index :Yes / No
Internet :Yes / No
ssd
To
1. The State of Tamilnadu, Rep. By its Secretary,
Department of Housing and Urban Development,
Fort St. George, Chennai 600 009
2. The State of Tamilnadu,
represented by its Secretary to Government,
Public Works Department, Fort St. George, Chennai- 600009
3. The Chairman and the Managing Director,
Tamilnadu Slum Clearance Board,
Kamarajar Salai, Chennai 600 009
4. The Collector of Chennai, Rajaji Salai,Chennai 6000 001
5. The Commissioner,
Corporation of Chennai, Ripon Buildings, Chennai 600 003
6. The Executive Engineer, PWD, (WRO) (Araniyar Basic Division)
Chepauk, Chennai 600 005
7. The Assistant Commissioner, Zone XIII, Chennai Corporation, Dr.Muthulakshmi Road, Adayar, Chennai 600 018
8. The Executive Engineer,
Division VI, Tamilnadu Slum Clearance Board, Chennai 600 018
9. The Tahsildar, Mylapore Taluk,Chennai 600 028
M.VENUGOPAL, J.
and
S.VAIDYANATHAN, J.
ssd
W.P.No.31114 of 2017 and
W.M. P.No.34112 of 2017
19.02.2018