Madras High Court
M.Jothi vs The Cantonment Board on 18 November, 2016
Author: B. Rajendran
Bench: B.Rajendran
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18.11.2016 CORAM THE HONOURABLE MR. JUSTICE B.RAJENDRAN W.P. No.26121 of 2014 and M.P.No.1 of 2014 M.Jothi .. Petitioner Versus 1.The Cantonment Board, Represented by its President, Defence Office, Secretariat, Fort St.George, Chennai 600 004. 2.The Defence Estates Officer, Defence Estates Office, Madras Circle, 306, Anna Salai, Teynampet, Chennai 600 018. 3.The Chief Executive Officer, St.Thomas Mount cum Pallavaram, Office of the Cantonment Board, St.Thomas Mount, Chennai 600 016. .. Respondents PRAYER : Writ Petition has been filed under Article 226 of the Constitution of India to issue a Writ of Mandamus, forbearing the respondents herein or their sub-ordinates from in any manner interfering in the possession or evicting the petitioner from the property measuring an extent of 17 cents in GLRS No.388/730 of St.Mount Road cum Pallavaram Cantonment, St.Thomas Mount, Chennai, without following due process of law, consequently directing the respondents to issue allotment/house patta in favour of the petitioner. For Petitioner : Mr.G.Arul Murugan For Respondent Nos.1 & 3 : Mr.Mohan for M/s.King & Patridge For Respondent No.2 : Mr.A.Kumaraguru O R D E R
The Writ Petition has been filed by the petitioner for two relief's, namely, not to disturb her possession by evicting her from the premises measuring an extent of 17 cents in GLRS No.388/730 of St.Mount Road cum Pallavaram Cantonment, St.Thomas Mount, Chennai, without following due process of law and for a consequential direction to direct the respondents to issue an order of allotment of house or plot in her favour.
2. The case of the petitioner is that the property was originally allotted to her father, who died way back in the year 1990. The mother and the petitioner were, as legal heirs, continued to remain in possession of the property. The petitioner's mother also attempted to get an order of allotment in her favour but on 23.04.1998 her mother died living her as the sole surviving legal heir. According to the petitioner, she is a destitute woman as she was deserted by her husband and therefore, she is living in the premises in question along with her two minor daughters.
3. According to the learned counsel for the petitioner, the petitioner has been in possession of the property in question for the past 20 years. She made a representation on 04.01.2011 for issuance of house patta to the Assistant Director, Ex-Servicemen Welfare Board, Tambaram, Kancheepuram District, which has been forwarded to the second respondent vide proceedings dated 09.02.2011, however, no order has been passed thereon. Therefore, she made another representation dated 28.05.2013 to the second respondent for extending the lease and to issue the house patta in her favour, for which also there was no response.
4. The learned counsel appearing for the first and third respondents would submit that an Advocate, not the advocate on record in the present Writ Petition, has put up a huge board in the land in question as if permanent injunction has been granted by this Court. It is also displayed through the Board that if any person makes any attempt to trespass into the property will be prosecuted before this Court by initiating contempt proceedings. In the Board, the advocate symbol is prominently given, however, name of the advocate is not given, name of the parties to the case was also furnished. The Board has been erected to make it as if the advocate is in the custody of the land in question. The learned counsel also brought to the notice of this Court that subsequently one advocate, by name, R.Elumalai issued a notice on behalf of the petitioner that the respondents will be prosecuted by initiating contempt proceedings, if they violate or attempt to take possession of the land measuring an extent of 0.17 acres. The learned counsel for the respondents 1 and 3 also brought to the notice of this Court that subsequently the petitioner, with the connivance of certain persons, including the local politicians, have managed to get a patta from the Government and even sold the property to one Karthikeyan. However, when they went to the concerned Sub-Registrar Office to register the instrument, the Registrar refused to register the document and ultimately the land grabbers, including an Ex-Councillor were arrested. In this context, a , police complaint has also been lodged by the second respondent and it is pending investigation. Thus, according to the learned counsel for the respondents 1 and 3, this writ petition is a classic example to show as to how judicial process could be subverted by abusing the legal process. Therefore, according to the learned counsel for the respondents 1 and 3, the petitioner has not come forward with this writ petition with clean hands and she has devised ingenious methods to subvert the legal process. Therefore, the learned counsel prayed for dismissal of this writ petition with exemplary costs.
5. The learned counsel appearing for the second respondent, relying on the counter affidavit, would contend that the land measuring 0.17 acres is earmarked as a defence land. Originally, the respondents have granted agricultural lease in the land on temporary basis to one N.Manjan, an Ex-servicemen for a period of 5 years with effect from 17.02.1983 to 16.02.1988. The agricultural lease period expired on 16.02.1988. The second respondent thereafter sent notice to the said Manjan to vacate and hand over the vacant possession of the land and thereafter, he has also handed over the vacant possession to the second respondent. From then onwards, the land in question remained as a vacant land. However, recently, during a routine site inspection carried out by the respondents, it was found that the petitioner unauthorisedly occupied the land in question and also erected a hut in a corner of the defence land. When the authorities questioned about the unauthorised occupation of the said land, immediately, the petitioner has come forward with this present Writ Petition. After obtaining an interim injunction, the petitioner has encroached the total area presently available in GLRS No.388/730 of St.Thomas Mount cum Pallavaram Cantonment and let out the same to the third parties for commercial usage i.e. parking of four wheelers. Therefore, it is contended by the learned counsel for the second respondent that the occupation of the petitioner itself is not lawful and she has to be vacated from the land belonged to the respondents. The petitioner has no locus standi to even file this writ petition and he prayed for dismissal of the writ petition.
6. When the writ petition is taken up for hearing today, the learned counsel for the petitioner submits that the petitioner has not given any instructions to him inspite of sending a notice to her.
7. I heard the learned counsel for both sides and perused the materials placed on record. This is a fittest case where this Court is justified in imposing exemplary costs inasmuch as the petitioner has devised ingenious methods to subvert the due process of law. The petitioner, by abusing and misusing the legal process, has filed the present writ petition. The petitioner sought the indulgence of this Court on the ground that she is a destitute widow and she has been harassed by the respondents with threat of eviction. However, the fact remains that it is the petitioner who has trespassed into the land belonged to the respondents without any right. It appears that the land in question was allotted to the father of the petitioner by executing an agricultural lease for a period of five years and on expiry of the lease period, the petitioner's father handed over the leasehold land to the respondents. According to the respondents, the land which was allotted to the father of the petitioner remained vacant for atleast two decades. While so, after 20 years, the petitioner has trespassed into the land and put a small hut besides erecting a board depicting the advocate symbol. It is not known as to what prompted the advocate to erect a board in the land belonged to the respondents. The so-called advocate has no right, much less a legal right to erect a board in the land in question. Therefore, this Court feels that appropriate action has to be initiated against the advocate who has misused and abused his profession as an advocate. The act played by the so-called advocate must be brought to light and he must be dealt with in accordance with law by referring his case to the Bar Council of India. The Bar Council of India is directed to issue a notice to Mr. R. Elumalai, Advocate, Mob. No.9710066319 calling upon him to submit an explanation as to why appropriate proceedings be not initiated against him. After receipt of such explanation, Bar Council of India is directed to proceed further in accordance with law.
8. Having regard to the above facts and circumstance of the case, the order of interim stay granted is vacated. In this regard, this Court directs the Inspector of Police, Pallavaram, Chennai - 600 043 to register a criminal case against all concerned and to immediately file a report before this Court. The respondents are at liberty to remove the Board erected in the land in question immediately.
9. The learned counsel for the first and third respondents has relied upon the decision of the Hon'ble Supreme Court in Sunil Kumar Kori & another vs. Gopal Das Kabra & Others [2016 SCC OnLine SC 993], the relevant paragraph reads as follows:
28.Before parting with the case it is our duty to deal with the very disturbing fact of encroachments on defence land. During the course of hearing, it was brought to our notice that there were several encroachments and a large number of illegally constructed houses in the Cantonment area. We were also informed that there is a Public Interest Litigation pending in the High Court of Madhya Pradesh and Jabalpur and pursuant to the interim directions in the said Writ Petitions a substantial number of illegally constructed houses were demolished. The Cantonments Act, 2006 re-enacted the existing Act of 1924 after taking into consideration the recommendations made by the Standing Committee of Parliament on Defence. One of the recommendations made by the Standing Committee of Parliament is to tackle encroachments on defence lands situated all over the country. In paragraph 12 above, we have referred to Section 247 and 248 of the Act which provide for demolition of illegally erected buildings and penalties for making illegal construction. Section 34(1)(e) of the Act also provides for removal of a member of the Board who aids or abets encroachment and the illegal constructions on the defence land. We are of the considered view that avowed legislative policy and the provisions of the Act relating to encroachments should be strictly implemented. Prompt action has to be taken by the concerned authorities for removal of the illegally constructed buildings in the Cantonment area. The Cantonment Boards should be vigilant and ensure that no further encroachments are made on defence land.
10. The learned counsel for the first and third respondents has also relied upon the decision of the Hon'ble Supreme Court in Manohar Lal vs. Ugrasen [(2010) 11 SCC 557]. Paragraph 48 reads as follows:
48. The present appellants had also not disclosed that land allotted to them falls in commercial area. When a person approaches a court of equity in exercise of its extraordinary jurisdiction under Articles 226/227 of the Constitution, he should approach the court not only with clean hands but also with clean mind, clean heart and clean objective. Equally, the judicial process should never become an instrument of oppression or abuse or a means in the process of the court to subvert justice. Who seeks equity must do equity. The legal maxim Jure naturae aequum est neminem cum alterius detrimento et injuria fieri locupletiorem, means that it is a law of nature that one should not be enriched by the loss or injury to another. (Vide Ramjas Foundation v. Union of India [1993 Supp (2) SCC 20 : AIR 1993 SC 852] , K.R. Srinivas v. R.M. Premchand [(1994) 6 SCC 620] and Noorduddin v. Dr. K.L. Anand [(1995) 1 SCC 242] at SCC p. 249, para 9.)
11. Taking note of the ratio laid down by the Honourable Supreme Court in the above decisions in Sunil Kumar Kori & another vs. Gopal Das Kabra & Others [2016 SCC OnLine SC 993] and Manohar Lal vs. Ugrasen [(2010) 11 SCC 557], and having regard to the above facts, the Writ Petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.
12. For Compliance, post the matter after four weeks. Registry is directed to issue a copy of this order to (i) Bar Council of India for taking necessary action (ii) Mr.R.Elumalai, Advocate, Mob. No.9710066319 (iii) The Government Pleader, High Court, Madras and (iv) The Inspector of Police, Pallavaram.
18.11.2016 Index : Yes / No Internet : Yes sri To
1.The President, Cantonment Board, Defence Office, Secretariat, Fort St.George, Chennai 600 004.
2.The Defence Estates Officer, Defence Estates Office, Madras Circle, 306, Anna Salai, Teynampet, Chennai 600 018.
3.The Chief Executive Officer, St.Thomas Mount cum Pallavaram, Office of the Cantonment Board, St.Thomas Mount, Chennai 600 016.
B. RAJENDRAN, J.
sri W.P. No.26121 of 2014 18.11.2016