Madras High Court
Chinnakrishnappa vs The District Collector on 26 September, 2018
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26.09.2018 CORAM THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM W.P.No. 20269 of 2014 Chinnakrishnappa .. Petitioner vs 1.The District Collector, Krishnagiri. 2.The Tahsildar, Hosur, Krishnagiri District. .. Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus, directing the respondents to issue patta in favour of the petitioner in Bopallapuram Village, Hosur Taluk, Krishnagiri District bearing Survey Nos.16/1, 16/2, 16/3, 16/4, 16/5 measuring 1.14, 0.48, 0.15, 0.24, 0.19 hectares respectively. For Petitioner : Mr.T.Arulraj For Respondents : M/s.A.Shrijayanthy, Special Government Pleader O R D E R
The relief sought for in this writ petition is for a direction to the respondents to issue patta in favour of the petitioner in Bopallapuram Village, Hosur Taluk, Krishnagiri District bearing Survey Nos.16/1, 16/2, 16/3, 16/4 and 16/5, measuring 1.14, 0.48, 0.15, 0.24 and 0.19 hectares respectively.
2.The learned counsel appearing on behalf of the writ petitioner made a submission that the property in Bopallapuram Village, Hosur Taluk, Krishnagiri District bearing Survey Nos.16/1, 16/2, 16/3, 16/4 and 16/5, measuring 1.14, 0.48, 0.15, 0.24 and 0.19 hectares respectively had been alloted to the petitioner by the Special Tahsildar, Hosur in proceedings in Na.Ka.424/84 dated 10.12.1974 for the purpose of cultivating mulberry. In view of the fact that the writ petitioner is in possession of the property described in the writ petition, he had planted mulberry on the land and cultivating the same. The lease period was for 5 years from 10.12.1974. The writ petitioner by putting his efforts, converted the waste land into the cultivable land. In view of the fact that the petitioner is in continuous possession and enjoyment of the said land, the writ petitioner claims that he is entitled for grant of patta.
3.The learned Special Government Pleader appearing on behalf of the respondents relying on the counter affidavit filed by the second respondent states that Survey Nos.16/1, 16/2, 16/3, 16/4 and 16/5 of Bopallapuram Village, Hosur Taluk, Krishnagiri District has been classified in the Revenue Records as follows:
16/1Anadheenam Not assessed waste land 16/2 Paarai (Rocks)
-----16/3
Anadheenam Not assessed waste land 16/4 Anadheenam Not assessed waste land 16/5 Paarai (Rocks)
-----
Survey Nos.16/1, 16/3 & 16/4 are classified as Anadheenam lands in Revenue Records and remains as waterways to drain rain water to Bopallapuram Eri (Taluk) situated in Survey No.48 of Bopallapuram Village, Hosur Taluk, Krisnagiri District. Survey Nos.16/2 & 16/5 also remain as waterways to drain rain water to Bopallapuram Eri. Thus, the writ petitioner cannot seek grant of patta in respect of all the land which belongs to the Government and remain as waterways to drain rain water to Bopallapuram Eri.
4.It is further contended that, in respect of water bodies and water resources, the competent authorities cannot issue patta and the Hon'ble Supreme Court also directed that no patta can be issued in respect of water bodies and water resources. It is further contended that the lands comprised in Survey Nos.16/1, 16/2, 16/3, 16/4 & 16/5 are not leveled and not developed for cultivation of crops. The said land remained as waterways and the said land is not in possession and enjoyment of anyone, including the petitioner.
5.The above facts were ascertained by the Revenue Inspector and the statement of the Village Administrative Officer also reveals the same. The report submitted by the Revenue Inspector on the basis of the enquiry made shows that the writ petitioner is not in possession and enjoyment of the said land. In view of this facts, the writ petition is liable to be rejected.
6.This Court is of the opinion that when the fact regarding the possession of the land in question is disputed by the Revenue Officials, relying on the report submitted by the Revenue Inspector, question of grant of patta under the provisions of Patta Pass Book Act, 1983 does not arise at all. Section 3 of the Patta Pass Book Act states that the patta pass book can be issued to the owner of the property. Thus, the person who submits an application seeking patta is bound to establish that he is the owner of the property. In the event of any dispute in respect of the title, ownership or possession, no patta can be granted under the Patta Pass Book Act, 1983. In the present case on hand, the respondents filed a counter stating that the land in question is a water body and the said lands are used as waterways to drain rain water to Bopallapuram Eri. This being the factum, the very claim set out in the present writ petition cannot be considered. In respect of encroachments in water bodies and water resources, the seriousness involved in such encroachments are dealt with by this Court in W.P.No.4779 of 2015 dated 13.08.2018 and the relevant paragraphs are extracted here under:
11.ENCROACHMENT AS AN ISSUE:-
(1) The Black's Law Dictionary defines encroachment as an infringement of another's rights; an interference with or intrusion onto another's property. The word 'Encroach' is defined as to enter by gradual steps or stealth into the possessions or rights of another; to trespass or intrude; to gain or intrude unlawfully onto another's lands, property or authority. Thus, it is unambiguous that encroachment is an offence. Encroachment amounts to a criminal trespass into the property belongs to another.
(2)The definition of encroachment is also defined in Section 2(1)(c) of the Tamil Nadu Land Encroachment Act, 1905 (Act III of 1905). Encroachment means, unauthorised occupation of land and public land by way of putting temporary, or permanent structure for residential or commercial use or any other use.
(3) The encroachment process gradually gains momentum from the following factors:-
(i) Lack of periodical monitoring;
(ii) Weakening of Social bondage;
(iii) People's justification of their position by citing wrong examples;
(iv) Delayed realisation of the ill-effects caused by encroachments;
(v) Negligence of Government functionaries and lack of timely action. However, it is pertinent to note the fact that the basis of the alarming rise of encroachments is the greed, selfishness, and jealousy of people.
(4) Section 441 of the Indian Penal Code states; whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or, having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit 'criminal trespass'. The term 'criminal trespass' has been defined in Black's Law Dictionary as a person who enters on the property of another without any right, lawful authority or an express or implied invitation or licence. But when trespass is committed with a criminal intention, it is treated as an offence and is made punishable under the Indian Penal Code. A punishment is that whoever commits criminal trespass shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.
(5) The land encroachment is a social evil. Encroachment is a passive form of land grab movement, which mirrors man's innate greed for land and his natural tendency towards aggrandizement of wealth in any form. Encroachment of Government property is a loss not only for the Government but also the public, as huge amount of money would be spent again to acquire new property.
(6)The Government lands are for the welfare of the public in general and to create common infrastructure for the usage and benefit of, we the people of India. Thus, the matter of encroachment of Government land cannot be treated ordinarily and it should be treated as a grave offence against, the State.
(7) Article 300-A of the Constitution of India deals with persons not to be deprived of property save by authority of law. No person shall be deprived of his property save by authority of law. Thus, the State being a person, cannot be deprived of its right of property and any intruder is liable to be prosecuted under the provisions of the Land Encroachment Act as well as under the Penal Law. Thus, this Court is of the opinion that the rights conferred to a person under Article 300-A of the Constitution of India, is certainly available to the State and the State has got every right to initiate appropriate legal action against the encroachers.
(8) The preamble of the Constitution 'WE THE PEOPLE OF INDIA', is the heart and soul of the Constitution. Article 12 of the Constitution provides definition for the State. Accordingly, 'the State' includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. Thus, State is a person and therefore, all public lands belong to the State and we the people of India are the owners of the land. Thus, the right of property provided under Article 300-A is to be extended to the State as a person. In other words, the property belongs to the State is also protected under Article 300-A of the Constitution of India. Thus, any encroacher of a public/Government land is certainly depriving the right of property of the State to possess the same under Article 300-A of the Constitution of India. Therefore, the question of de-linking such encroachers otherwise will not arise at all. Question of extending the equality clause or the discrimination clause will not arise at all to the encroacher as an offender and an offender citing the offence committed by one offender, another one cannot claim that he should also be exonerated from the offence. Such a dangerous proposition, cannot be adopted at any circumstances and in the event of connivance with the officials in this regard also to be viewed very seriously.
(9) This Court wishes to ask a question whether any citizen of this country will allow another citizen to encroach the property owned by him. Litigations in lakhs and lakhs are pending before various Courts in our Great Nation only to establish the rights of such citizen in respect of their property. Such being the law of this country, how a State land can be allowed to be encroached by another citizen and such offences are dealt in a casual manner by the officials. Due to the constant increase of market value of the immovable property in this Great Nation, the public officials are also contributing for the dilution of the implementation of various laws in this regard, more specifically, while dealing with the Government lands. Such actions deserve to be condemned and such officials are to be dealt with iron-heart and no leniency can be shown to such public officials.
12.The Tamil Nadu Land Encroachment Act, 1905, is an Act, which provide measures for taking unauthorised occupation of land which are the property of the Government. The preamble of the Act provide measures for checking unauthorised occupation of lands which are the property of the Government, whereas, it has been the practice to check the unauthorised occupation of lands which are the property of the Government and by imposition of penal or prohibitory assessment or charge and whereas, the doubts have arisen as to how far such practice is authorized by law and it is expedient to make statutory provision for checking such occupation. The Act provides for removal of encroachment and and the implementation of the Act by the Government officials are to be done in a manner prescribed under the Act. Any violation of the officials also to be viewed seriously.
13.With this background, it is necessary to go into the legal principles laid down by the Courts on encroachments:
(i)In PANDIA NADAR AND ORS v. THE STATE OF TAMIL NADU AND ORS [ 1974 AIR 2044], the Constitution Bench of the Hon'ble Supreme Court rendered a Judgment on 30th April 1974 wherein, the very constitutional validity of the Tamil Nadu Land Encroachment Act, 1905 was tested. While dismissing the Appeals filed by land encroachers, the Hon'ble Supreme Court held as follows:
This Court then went on to apply those principles to the statutes under consideration in the following words :
"The statute itself in the two classes of cases before us clearly lays down the purpose behind them, that is that premises belonging to the Corporation and the Government should be subject to speedy procedure in the matter of evicting unauthorized persons occupying them. This is a sufficient guidance for the authorities on whom the power has been conferred. With such an indication clearly given in the statutes one expects the officers concerned to avail themselves of the procedures prescribed by the Acts and not resort to the dilatory procedure of the ordinary Civil Court. Ever, normally one cannot imagine an officer having the choice of two procedures, one which enables him to get possession of the property quickly and the other which would be a prolonged one, to resort to the latter. Administrative officers, no less than the courts, do not function in a vacuum. It would be extremely unreal to hold that an administrative officer would in taking proceedings for eviction of unauthorised occupants of Government property or Municipal property resort to the procedure prescribed by the two Acts in one case and to the ordinary Civil Court in the other. The provisions of these two Acts cannot be struck down on the fanciful theory that power would be exercised in such an unrealistic fashion. In considering whether the officers would be discriminating between one set of persons and another one has got to take into account normal human behaviour and not behaviour which is abnormal. It is not every fancied possibility of discrimination but the real risk of discrimination that we must take into account. This is not one of those cages where discrimination is writ large on the face of the statute. Discrimination may, be possible but is very improbable. And if there is discrimination in actual (1) [1952] SCR 435 (2) [1962] 2 SCR 125 (3) [1960] 2 SCR 646 (4) [1954] SCR 30.
practice this Court is not powerless. Furthermore, the fact that the Legislature considered that the ordinary procedure is insufficient or ineffective in evicting unauthorised occupants of Government and Corporation property, and provided a special speedy procedure therefore is a clear guidance for the authorities charged with the duty of evicting unauthorised occupants. We, therefore, find ourselves unable to agree with the majority in the Northern India Caterers' case."
(ii)In KRISHNAN,L. v. STATE OF TAMIL NADU [2005 (4) CTC 1], His Lordship Justice F.M.Ibrahim Kalifulla, speaking for the Bench, held as follows:
9. In this connection reference may be made to Article 48A of the Constitution which states: -
"Protection and improvement of environment and safeguarding of forests and wild life: - The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country."
10. No doubt the above provision is in the Directive Principles of State Policy, but it is now well settled that the fundamental rights and directive principles have to be read together, since it has been mentioned in Article 37 that the principles d down in the Directive Principles are fundamental in the governance of the country and it is the duty of the State to apply these principles in making laws. The Directive Principles embody the aim and object of the State under a Republican Constitution, i.e., that it is a welfare State and not a mere police State, vide Kesavananda Bharati Vs. State of Kerala, (197 3) 4 SCC 225 (vide paragraphs - 134, 139 and 1714) and embodies the ideal of socio-economic justice, vide Union of India Vs. Hindustan Development Corporation, AIR 1994 SC 988 (990).
11. Though the early decisions of the Supreme Court paid comparatively scant attention to the Directive Principles in Part - IV of the Constitution as they were said to be non-justiciable and nonenforceable in the Courts (vide Article 37), the subsequent decisions of the Supreme Court changed this trend and this new trend reached its culmination in the 13 member bench Judgment of the Supreme Court in Kesavananda Bharati's Case (Supra), which laid down that there is no disharmony between the directive principles and fundamental rights because they supplement each other in aiming at the same goal of bringing about a social revolution and the establishment of a welfare State, which is envisaged in the Preamble to the Constitution. The Constitution aims at a synthesis of the two, and the Directive Principles constitute " the conscience of the Constitution". Together they form the core of the Constitution, vide Markandeya, V. Vs. State of A.P., AIR 1989 SC 1308 (paragraph - 9). They are not exclusionary, but are complementary to each other, vide Unnikrishnan, J.P. Vs. State of A.P., AIR 199 3 SC 2178. It follows therefore that the courts should uphold, as far as possible, legislation enacted by the State which seeks to remove inequalities and attain 'distributive justice', vide, Lingappa Pochanna Appealwar Vs. State of Maharashtra, AIR 1985 SC 389 (paragraphs 1 6 and 20), Manchegowda Vs. State of Karnataka,AIR 1984 SC 1151, Fateh Chand Himmatlal Vs. State of Maharashtra, AIR 1977 SC 1825, etc., In recent decisions the Supreme Court has been issuing various directions to the Government and administrative authorities to take positive action to remove the grievances which have been caused by nonimplementation of the Directive Principles, vide Comptroller and Auditor General of India Vs. Jagannathan, AIR 1987 SC 537 (paragraphs 20-21), Mukesh Advani Vs. State of M.P., AIR 1985 SC 1363, Bandhua Mukti Morcha Vs. Union of India, AIR 1984 SC 802, Animal and Environment Legal Defence Fund Vs. Union of India, (1997) 3 SCC 549, etc.
12. Apart from the above we may also refer to Article 51A(g) of the Constitution which makes it a fundamental duty of every citizen "to protect and improve the natural environment including forests, lakes, rivers and wild life". This duty can be enforced by the Court, vide Animal and Environment Legal Defence Fund Vs . Union of India (supra, vide para-15).
13......
14. Therefore, we direct the respondents 1 to 5 to take necessary legal steps to remove the alleged encroachments made by the respondents 6 to 12 as well as the petitioner over Odai Poramboke in Iyan Punji Survey No.100/1 at No.247, Tatchur Village, Kallakurichi Taluk, Villupuram District measuring 5 acres and 70 cents. Inasmuch as this writ petition has come before us by way of a public interest litigation, we take this opportunity to direct 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.
(iii)In an important Judgment, the Hon'ble Supreme Court in JAGPAL SING v. STATE OF PUNJAB [ AIR 2011 SCC 1123], has held as follows:
13. We find no merit in this appeal. The appellants herein were trespassers who illegally encroached on to the Gram Panchayat land by using muscle power/money power and in collusion with the officials and even with the Gram Panchayat. We are of the opinion that such kind of blatant illegalities must not be condoned. Even if the appellants have built houses on the land in question they must be ordered to remove their constructions, and possession of the land in question must be handed back to the Gram Panchayat. Regularizing such illegalities must not be permitted because it is Gram Sabha land which must be kept for the common use of villagers of the village. The letter dated 26.9.2007 of the Government of Punjab permitting regularization of possession of these unauthorized occupants is not valid. We are of the opinion that such letters are wholly illegal and without jurisdiction. In our opinion such illegalities cannot be regularized. We cannot allow the common interest of the villagers to suffer merely because the unauthorized occupation has subsisted for many years.
21. For the reasons given above there is no merit in this appeal and it is dismissed.
14.It is categorically stated in the counter affidavit filed by the respondents that the portion of the land encroached by the writ petitioner is a Government Poramboke land, which is preserved as water body. The Hon'ble Division Bench of our High Court in the case of T.S.Senthil Kumar, Vs. The Government of Tamil Nadu, rep.by its Secretary, Public Works Department, in W.P.No.20021 of 2008 dated 10.02.2010 and the relevant paragraphs are extracted hereunder:
From the above, it is seen that the Act in question has come not a day sooner, because we have seen that the Ramsar Convention includes as wetlands, not only natural wet lands, but even human-made wetlands such as waste water treatment ponds and reservoirs. Therefore, tanks and tank poramboke lands would definitely require protection from encroachment. 18.Considering the fact that we have adopted wet land conservation policy which takes note of the environmental value and functions of wet lands and the fact that they deserve to be protected, the State may take steps to protect all water bodies and not only tanks. In L.Krishnan's case - AIR 2005 Madras 311, this Court has referred to the judgment of the Supreme Court in AIR 2001 SC 3215, where the maintenance of ecological balance has been highlighted and this Court has also specifically indicated that it is imperative to see that water storage resources such as tanks, odais, oranis, canals are not obliterated by encroachers. Right to water is a part of life and, therefore, as observed by the Supreme Court in Hinch Lal Tiwari v. Kamal Devi and others - AIR 2001 SC 3215, demands of economic development must be made without compromising the natural resources of the earth which this generation holds in trust for future generation. The order of inter-generational equity has to be remembered and in fact in the Rio Declaration, to which India is a party, it has been affirmed that environmental protection constitutes an integral part of sustainable development and cannot be isolated from it. 19.Persistent developmental activities, ignoring the need to protect natural resources, have caused irreparable damage. It is also necessary that the State shall not invoke Section 12 of the Act which results in alienation of tank poramboke lands citing "public interest". Protection of water resources is as much as a public interest issue as any other requirement. The Government may also bear in mind that water resources have to be protected while issuing patta to persons who claim to have resided in the same place for a number of years.
15.The Hon'ble High Court, in the above said case issued directions to the State, which reads as under:
(a)The State shall scrupulously follow the provisions of the Act. It shall also ensure that all the District Collectors and other authorities, who are concerned with the observance of the provisions of the Act, strictly follow the letter, dated 10.10.2007.
(b)The District Collectors, while creating adequate awareness, may also enlist the help of Self Help Groups to disseminate the message that protection of water resources will actually promote the welfare of the villages and therefore it is in the interest of every citizen to make sure that he is not encroaching on a tank and to clear tanks and water bodies which are filled with garbage and to avoid dumping of garbage will automatically enhance and improve the public health of the community.
(c)As already stated, the State will ensure that alienation of tank poramboke lands, citing public interest, shall not be made under Section 12 of the Act. The meaning and weight of the words "public interest" shall be implicitly borne in mind.
(d)The State holds all the water bodies in public trust for the welfare of this generation and all the succeeding generations and, therefore, protecting water bodies must be given as much weightage, if not more as allowing house-sites or other buildings to come up on such tanks or tank poramboke lands, and water charged lands.
(e)The State shall also bear in mind the provisions of this Act and the objects and reasons of this Act while issuing patta to persons who claim to have resided in the same place for a number of years and if necessary modify the relevant Government Orders to make sure that the implementation of these G.Os. are not in violation of this very valuable and important Act, namely Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007.
16.The Hon'ble Division Bench of our High Court in W.P.No.26364 to 26376 of 2017 dated 10.10.2017, held as follows:
8.A perusal of the typed set of documents filed in support of these writ petitions would reveal a shocking and sorry state of affairs. Admittedly, the petitioners are ranked encroachers and however, the concerned revenue officials have failed to take action at the relevant point of time and therefore, allowed them to perpetuate the illegality and the petitioners/their predecessors have, not only stopped with the illegal act of encroachment ; but also got emboldened on account of the inaction on the part of the revenue officials as well as the Local Body officials and proceeded to construct palatial superstructures, without any authorisation or planning permission and also leased out the same for commercial purposes. It appears that it was / is a deliberate and wilful act on the part of the revenue officials as well as the Local Body officials as to the non-taking of any action to abate such illegalities. The respondents shall cause inspection of the entire area in question and identify the encroachers as well as the unauthorised / deviated constructions and take necessary and appropriate action within a period of ten weeks from the date of receipt of a copy of this order and file a COMPLIANCE REPORT to this Court. The Administrative Department of the Government is directed to identify the officials concerned as to the continued laxity and exhibition of callousness and apathy in performing / discharging their official duties and neglect in protecting the assets of the Government and initiate appropriate Departmental and Criminal action and also file a Status Report.
7.Protection of water bodies and water resources are of paramount importance. There cannot be any compromise in respect of protecting the water bodies and water resources. Encroachments in such areas are to be removed by invoking the provisions of Tamil Nadu Land Encroachment Act, 1905 and the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007. The authorities competent cannot show any leniency or misplaced sympathy in respect of such encroachments who are in occupation of the water bodies or water resources in Government Poramboke land. Vigorous action in this regard is certainly required in view of the fact that the people are facing flood related disasters during rainy seasons and further it obstructs free flow of water and preservation of water in pond, eri, lake etc. The Hon'ble Supreme Court also time and again emphasized that the state is duty bound to maintain and preserve such water bodies and water resources for the benefit of public at large. If such encroachments are allowed by the state, the state is failing in its duty to adhere to the constitutional prospects and mandates. Few greedy men are encroaching such water bodies, water resources and Government lands for their personal gains. Such persons are to be dealt in accordance with law, without showing any sympathy. In this view of the matter, the following orders are passed:
(i)The relief as such sought for in this present writ petition stands rejected.
(ii)The first respondent/District Collector is directed to conduct a review meeting of the officials concerned within a period of two weeks from the date of receipt of a copy of this order.
(iii)The District Collector is directed to issue suitable orders/ directions to identify all such encroachments in water bodies, water resources and Government Poramboke lands and initiate appropriate action for eviction by following the procedures contemplated under the Encroachment Act.
8.In the event of any lapse, negligence or dereliction of duty on the part of the officials concerned, the District Collector is directed to initiate prosecution and disciplinary action against all such officials under the Discipline and Official Rules.
9.The District Collector is directed to issue circular to all the officials concerned to take effective steps to protect all such water bodies, water resources, Government lands and Government properties within his jurisdiction.
10.With these directions, the present writ petition stands disposed of. However, there shall be no order as to costs.
26.09.2018 Internet:Yes Index : Yes Speaking pns/gsa To
1.The District Collector, Krishnagiri.
2.The Tahsildar, Hosur, Krishnagiri District.
S.M.SUBRAMANIAM, J.
gsa/pns W.P.No. 20269 of 2014 26.09.2018