Madras High Court
N.Ravikumar vs The District Collector on 2 January, 2019
Author: M.Venugopal
Bench: M.Venugopal, S.Vaidyanathan
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.01.2019
CORAM:
THE HON'BLE MR.JUSTICE M.VENUGOPAL
and
THE HON'BLE MR.JUSTICE S.VAIDYANATHAN
W.P.Nos.13963 to 13967, 14359 and 15229 of 2018
and W.M.P.Nos.16495 to 16499, 16964 and 18054 of 2018
W.P.No.13963 of 2018
N.Ravikumar ... Petitioner
-vs-
1. The District Collector,
O/o.Thiruvallur District,
Thiruvallur, Thiruvallur District.
2. The Assistant Engineer,
TANGEDCO/TNEB,
Kumananchavadi Range,
Seneerkuppam Village,
Poonamallee, Chennai-600 056.
3. V.Manoharan ... Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of India
praying for the issuance of a Writ of Mandamus, directing the respondents to
dispose of his representation dated 26.02.2018 and issue patta in favour of
him on the basis of his representation dated 26.02.2018.
For Petitioners : Mr.D.Bharathy (in all W.Ps.)
For R1 : Mrs.Narmadha Sampath,
Addl. Advocate General
Asst. by Mr.R.Udhayakumar, AGP
(in all W.Ps.)
For R2 : Mr.S.K.Raameshuwar (in all W.Ps.)
****
http://www.judis.nic.in
2
COMMON ORDER
(Order of the Court was made by S.VAIDYANATHAN,J.,) These writ petitions have been filed, seeking disposal of the representations of the petitioners dated 26.02.2018, with the consequential relief of issuance of patta to them on the basis of their representations.
2. Heard the learned counsel for the petitioners, learned Additional Advocate General appearing for the 1st respondent and the learned counsel for the 2nd respondent.
3. When these matters were taken up for hearing on 03.12.2018, this Court had passed the following interim order, which reads as under:
“3. Taking note of the submissions made on either side and considering the fact that the encroachers have got a right of appeal and appeals have also been preferred by them, the Authorities are expected to dispose of the same within 30 days, as undertaken in the status report and report compliance. It is open to the Appellate Authority to take up the hearing of Appeal on day-to-day basis without adjourning it beyond two working days at any point of time.”
4. Today, it is represented by the learned Additional Advocate General that the Appellate Authority had already concluded the proceedings on http://www.judis.nic.in 3 28.12.2018 itself and the final orders are yet to be passed in appeals. It is also represented that the authorities concerned are taking steps to evict the encroachers and in the interregnum period, the petitioners / encroachers have filed these writ petitions, seeking issuance of patta.
5. Admittedly, the petitioners herein are encroachers and though this Court has observated in the previous interim order dated 03.12.2018 that the encroachers too have got a right of appeal, they do not have any vested interest in seeking patta, as they are not owners of the property in question. Hence, we are of the view that there are no merits in these writ petitions and the Writ Petitions are liable to be dismissed.
6. In fine, all these Writ Petitions fail and are dismissed as devoid of merits. The authority concerned, before whom the appeals preferred by the petitioners are pending, shall pass final orders in the pending appeals, in which the proceedings were already concluded on 28.12.2018, as stated by the learned Additional Advocate General.
7. This Court in severals orders have directed that the complinant must be heard in all the Appeals or proceedings, including Sections 79, 80-A, 113-C, etc., under 1971 Act or Land Encroachment Act or under any other legislation http://www.judis.nic.in 4 that deals with removal of encroachment and illegal construction in violation of plan or without plan, as this Court has observed in the order dated 03.01.2018 in W.P.No.22058 of 2017 as follows:
"Land encroachments are like Cancer. It slowly eats the lung space of the land and definitely, there will be no breathing space for anyone, much less the Earth, to survive in the Orbit."
8. It is only the complainant, who can bring the violation to the Authorities, who are expected to act with honesty and integrity. Last but not the least, we are of the view that the Authority, whether it be Officials of Corporation / Government / Municipality, etc, is expected to decide the matter pending before him/her on day to-day basis without adjourning the same beyond fifteen days at any point of time, conduct the proceedings on Saturdays to enable the parties to appear, who may be employed and decide the issue after recording the proceedings and obtaining the signature of parties, as laid down in the order dated 18.12.2017 in the case of B.Ramesh vs. The Secretary to Government, Housing and Urban Development Department, Secretariat, Chennai-600 009 and another [W.P.Nos.21239, 28140 to 28142, 35441 and 35442 of 2005 and 10364 of 2006] and the relevant paragraph of the said judgment is extracted as under:
“6. This Court makes it further clear that the regularisation proceedings shall be conducted by the respondents after hearing necessary parties who are likely http://www.judis.nic.in 5 to be affected and if there are complainants, they should also be heard. Whenever parties appear, the applicant(s) as well as the complainant(s) shall be heard and the conduct of the proceedings should be written down by the officer concerned who is hearing the matter, and he shall obtain signatures in the proceedings after recording the submissions if any made. A copy of the proceedings shall be furnished immediately thereafter to the parties concerned to avoid unnecessary allegation against the officials that the records have been manipulated, and the authority concerned shall seek for written submissions from the petitioner(s)/applicant(s)/complainant(s) within a time frame and thereafter, the authority shall pass appropriate orders in accordance with law. This Court makes it clear that the authority shall not advise any of the parties with regard to the issue that is being heard and that if there are no set-backs, and if there is violation with regard to the construction, the request of the applicants/petitioners has got to be rejected. It is further made clear that the set- backs shall not be regularised. It is open for the authorities concerned to go and inspect the sites in question and also take photographs and videographs in order to safeguard their interest. It is also open for the parties to submit the photographs and videographs in order to substantiate their respective stand.
9. The Hon'ble Division Bench of this Court in yet another case in J.Julie Sangetta and another vs. Member Secretary, Chennai Metropolitan Development Authority, Egmore, Chennai-600008 and others [W.P.Nos.38432 of 2015, 28511 of 2015, 37822 of 2015, 23766 of 2013 and 33481 of 2013 ] dated 07.09.2016, had directed the authority concerned to call for details from the violator by issuing appropriate notice, if it is found that there are encroachments on road and the relevant portion of the said judgment is extracted as here-under:
http://www.judis.nic.in 6 “12. Whenever it is brought to notice that there is land encroachment on the roads or in any other place or violation of construction, it is open to the authorities concerned to call for the following details from the violator by issuing appropriate notice:
(a) Registered Deed based on which the property has devolved upon the person
(b) Extent of square feet mentioned in the Schedule property
(c) Width of the road
(d) Actual constructed area
(e) Approved plan
(f) Whether set back space has been provided as per the Plan/Rules
13. It is the bounden duty of the person, who receives the notice to furnish all the details called for, failing which, it has to be presumed that there are violations and it is open to the authorities to act as per law. Wherever there are encroachments on road, road width has got to be restored. If there is no Building Plan, deviations if any, have got to be removed by the petitioner. If not, the authorities are entitled to remove the same in accordance with law, recovering the demolition costs from the petitioner.
10. In Mehraj Begum vs. The Government of Tamil Nadu, rep. By its Secretary to the Government, Housing and Urban Development Department, Fort St. George, Chennai and others [W.P.No.27499 of 2018] dated 16.10.2018, the Hon'ble Division Bench of this Court has issued following directions, regarding the stringent measures to be taken for removal of encroachment, which read as under:
“(a) Respondents are directed to de-seal the building constructed by the Petitioner for the purpose of rectifying the defects and the building shall not be http://www.judis.nic.in 7 occupied for any other purpose, much less residential purpose.
(b) Respondents shall ensure that proper set back is maintained in the building in question and also ensure as to whether the building in question has encroached the Road.
(c) If the violated portions are not rectified, Respondents are directed to demolish the same.
(d) Till the building is brought in accordance with the Sanctioned Plan, there shall not be electricity supply to the building in question. Though this Court is entitled to disconnect water supply to the building in question, taking note of the fact that the neighbours of the Petitioner will suffer, water supply is not disconnected.
(e) The Appellate Authority shall conduct the proceedings once in 15 days and ensure that the building in question is brought in accordance with the sanctioned Plan within six months.
(f) If the Officials concerned do not adhere to the procedures mentioned supra, the Government shall post the erring Official in a non-sensitive post.
(g) Wherever Appeals are pending before the authorities concerned as regards buildings constructed in violation of the Sanctioned Plan, there shall be an interim order by the Appellate Authority and there shall be disconnection of electricity supply to the said violated portion, if the building is not brought as per the Sanctioned Plan within the time limit.
(h) The 1st Respondent/Secretary to the
Government of Tamil Nadu, Housing and Urban
Development Department and the 5th
Respondent/Commissioner, Corporation of Chennai, Chennai are directed to furnish the following particulars http://www.judis.nic.in 8 to this Court on or before 18.12.2018:
(i) Number of appeals pending before
the authorities;
(ii) Number of cases, wherein directions
have been issued by this Court.
11. Before parting with this judgment, this Court is of the view that unless there is a stay of the proceedings by the High Court, quoting any pendency of the matter, the Officials of the Municipality / Corporation / CMDA and Government Officials cannot close the complaints or appeals, etc., on the ground of pendency of Writ Petition or Writ Appeal. If they do so, it would amount to dereliction of duty and they could be proceeded with departmentally so as to bring them within the ambit of not discharging their duties with integrity and devotion to duties and also it may attract moral turpitude, depriving them their gratuity and terminal benefits, apart from endorsing the same in the Service Register during their service, which would disentitle their further promotion and those Officials shall be removed from the said post and posted in a non-sensitive post, if any complaint is made that they are not discharging their duties to the fullest satisfaction.
12. We are of the view that any records or statements made by the Staff, who are dealing with the encroachment and illegal construction, are found to be false, it would amount to not only dereliction of duty, but http://www.judis.nic.in 9 also attract moral turpitude.
13. In fine, we would like to quote the decision of the Apex Court in the case of M.I.Builders Private Ltd. Vs. Radhey Shyam Sahu and others, reported in AIR 1999 SC 2468 at Special Page 2505, wherein at Paragraph 82, it is observed and held as under:
"82. High Court has directed dismantling of the whole project and for restoration of the park to its original condition. This Court in numerous decisions has held that no consideration should be shown to the builder or any other person where construction is unauthorised. This dicta is now almost bordering rule of law. Stress was laid by the appellant and the prospective allottees of the shops to exercise judicial discretion in moulding the relief. Such discretion cannot be exercised which encourages illegality or perpetuates an illegality. Unauthorised construction, if it is illegal and cannot be compounded, has to be demolished. There is no way out. Judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion wherever it is required to be exercised has to be in accordance with law and set legal principles. ...."
14. The Secretary, HUD Department, Govt. of Tamil Nadu, Chennai, The Additional Secretary (Technical), HUD Department, Govt. of Tamil Nadu, Chennai, The Commissioner, Corporation of Chennai, Chennai, http://www.judis.nic.in 10 The Secretary, Municipal Administration and Water Supply Department, Government of Tamil Nadu, Fort St. George, Chennai 600 009, The Commissioner of Municipal Administration, Ezhilagam, Chennai 600 005, The Member Secretary, Chennai Metropolitan Development Authority, Thalamuthu Natarajan Building, No.1, Gandhi-Irwin Road, Egmore, Chennai-600 008, are expected to issue suitable direction to the concerned authorities to go ahead with the matter, where there are no stay to proceed with the matter. The Government is expected to issue necessary circular / Government Order, incorporating the above directions and a copy of the same shall be filed before this Court on 04.02.2019. Till such circular / Government Order is issued, the afore-stated directions should be followed in letter and spirit. It is made clear that the directions issued hereinabove are only illustrative and apart from the above directions, stringent conditions may also be incorporated in the circular / Government Order so as to make the Officials to execute their job consecutively in the absence of stay of the proceedings by any judicial forum.
15. It is apposite to state here that due to paucity of water, we may have to face severe scarcity of water this year and disconnection of electricity and non-supply of water to the violators would enable non- violators to have such supplies round the clock. No costs. Consequently, http://www.judis.nic.in 11 connected miscellaneous petitions are closed.
List these matters on 04.02.2019 at 02:15pm for reporting compliance.
[M.V,J.,] [S.V.N,J.,]
02.01.2019
Index: Yes
Internet: Yes
Speaking Order
ar
Note: Registry is directed to send a copy of this order to,
1. The Secretary, HUD Department, Govt. of Tamil Nadu, Chennai.
2. The Additional Secretary (Technical), HUD Department, Govt. of Tamil Nadu, Chennai.
3. The Commissioner, Corporation of Chennai, Chennai.
4. The Secretary, Municipal Administration and Water Supply Department, Government of Tamil Nadu, Fort St. George, Chennai 600 009.
5. The Commissioner of Municipal Administration, Ezhilagam, Chennai 600 005.
6. The Member Secretary, Chennai Metropolitan Development Authority, Thalamuthu Natarajan Building, No.1, Gandhi-Irwin Road, Egmore, Chennai-600 008. http://www.judis.nic.in 12 M.VENUGOPAL, J.
AND S.VAIDYANATHAN,J.
ar To:
1. The District Collector, O/o.Thiruvallur District, Thiruvallur, Thiruvallur District.
2. The Assistant Engineer, TANGEDCO/TNEB, Kumananchavadi Range, Seneerkuppam Village, Poonamallee, Chennai-600 056.
W.P.Nos.13963 to 13967, 14359 and 15229 of 2018 1/2 02.01.2019 http://www.judis.nic.in