Madras High Court
S.Amutha vs The District Collector on 18 January, 2010
Bench: Prabha Sridevan, B.Rajendran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18/01/2010 CORAM THE HONOURABLE MRs.JUSTICE PRABHA SRIDEVAN and THE HONOURABLE MR. JUSTICE B.RAJENDRAN WRIT PETITION (MD) No.402 of 2010 and M.P.(MD)No.1 of 2010 S.Amutha .. Petitioner vs 1.The District Collector, Dindigul District. 2.The Tahsildar, Ottanchatram Taluk, Ottanchatram, Dindigul District. 3.The Revenue Inspector, Ottanchatram Taluk, Ottanchatram, Dindigul District. .. Respondents Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus to call for the proceedings of the third respondent dated 08.11.2009 relating to the petitioner's house Door Nos.751 and 752 property is situated in Survey No.135/A2, Anathai Veeduthi Street, Ottanchatram in Ottanchatram Taluk, Dindigul District and quash the same and direct the 1st and 2nd respondent to grant the patta in house bearing Door Nos.751 and 752 property is situated in Survey No.135/A2, Anathai Veeduthi Street, Ottanchatram, in Ottanchatram Taluk, Dindigul District within a time framed fixed by this Court. !For petitioner ... Mr.M.Venkatesan ^For respondents ... Mr.R.Janakiramulu, Spl.Govt.Pleader :ORDER
(Order of the Court was made by PRABHA SRIDEVAN, J) The petitioner is in occupation of the house in Door Nos.751 and 752 in Survey No.135/A2, Anathai Veeduthi Street, Ottanchatram Taluk, Dindigul District. Notice was issued on 8.11.2009 under Section 7 of the Tamil Nadu Land Encroachment Act 1905.
2. According to the petitioner, she and before her, her predecessors in title have been residing in the place for more than 45 years and therefore, they are entitled to the benefit of G.O.Ms.No.854, Revenue Department, dated 30.12.2006 and they should be granted patta.
3. Learned counsel for the petitioner submitted that the petitioner is paying water tax, property tax and other statutory demands. The petitioner had given a representation for grant of patta through some organisation on 5.2.2007. Since the impugned notice has been issued inspite of the representation, this Writ Petition is filed.
4. Learned counsel for the petitioner submitted that as per the impugned notice, the property is classified as Odai but actually, in the revenue records, Survey No.135/A2 is classified as Government Poramboke. Therefore, according to the learned counsel for the petitioner, notice is ex-facie erroneous. The learned counsel submitted that there is no reason why the petitioner should be discriminated when other persons are given the benefit of the said G.O.,. The learned counsel also submitted that, by the aforesaid G.O., persons residing in Government Poramboke for more than 10 years were granted patta and subsequently, by G.O.Ms.No.34, Revenue Department dated 13.1.2008, the period of residence was also reduced to five years.
5. The learned counsel submitted that in the event, the respondent had initiated this action on the ground that it was odai poramboke, then it is the Officer of the PWD who can issue notice and the third respondent has no jurisdiction to issue notice.
6. The learned counsel also referred to a Writ Petition i.e. W.P.(MD)No.9665 of 2009 filed by one P.Karuppasamy, who was similarly placed where an order was passed by this Court directing the respondents to consider the objections. The learned counsel also submitted that within 15 days' time specified in the impugned notice, the petitioner had given his objections and representations and also referred to the various documents to show why the petitioner is entitled to patta.
7. The learned special government pleader submitted that there is no doubt that the land encroached upon is Odai Poramboke and submitted that, at best, the petitioner may be entitled to consideration of the objections and nothing more.
8. Schedule to the impugned notice shows that the land is in Survey No.135A/2 and nature of the encroachment is R.C.residential building. In the order passed in W.P.(MD)No.9665 of 2009, the Division Bench of this Court had directed the respondents to consider the objection and till such time, the possession of the petitioner shall not be disturbed.
9. The impugned notice called upon the petitioner to show cause why she should not be evicted and the superstructure etc., on the land shall not be removed within 15 days. Perhaps, if no objections are received, the respondent may take action in accordance with law. When they call upon the petitioner to give his objection, there is no reason for the petitioner to apprehend that notwithstanding the objections, the respondent will take action.
10. Section 2 of the Tamil Nadu Land Encroachment Act, refers to the right of property in public roads, etc. waters and lands, which declares that all public roads, streets, lanes etc., including the water courses to be property of the Government and the Act provides for summary eviction after notice to the person in occupation. The Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007 provides for checking the encroachments and eviction of persons from the tank is defined under the Act. Section 6 too provides that the chart prepared by the Survey Officer under Section 6(1) shall be handed over to an Officer of the PWD and it is this officer who issues notice under Section 7 for eviction of encroachment.
11. In the present case, had the notice had been issued by the third respondent invoking the provisions of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007, the objection raised by the petitioner might have some merit but as it is the third respondent has issued notice only under the provisions of the Tamil Nadu Land Encroachment Act, 1905, it cannot be said to be without jurisdiction.
12. In Sivakasi Region Tax Payers Association vs. State of Tamil Nadu [(2008) 5 MLJ 1425], a Division Bench of this Court heard a batch of Writ Petitions, which included, inter alia, one for quashing G.O.Ms.No.854, Revenue Department, dated 30.12.2006. The ground raised was that it is the duty of the Government to protect all public water works, public reservoirs etc., and the Government cannot divest the same by any administrative instruction regularizing the encroachment even in water body, water tank and irrigation sources. Thus, the Division Bench held that the contents of the G.O. should not be read in isolation. In this regard, paragraph No.22 of the judgment is extracted hereunder:
"22. In our considered opinion, the contents of the G.O. should not be read in isolation. They must be read along with the provisions of the Tamil Nadu Land Encroachment Act, 1905, the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007 and more particularly along with the Standing Orders of the Board of Revenue as well as the impugned G.O. should be read as complementary to each other and the G.O. should not be read as supplanting the Revenue Standing Order."
In paragraph 24, they held that any land which is still continued as water course either for the purpose of drinking or for the purpose of irrigation cannot be assigned. The Division Bench also observed that the G.O. would apply only where the environment is not affected in the sense that the area is not actually in use as Eri (lake) or water source either natural or artificial and not required for any public use and for the use of the State. The directions in the above decision would apply to the present case.
13. We also refer to the following paragraph of the judgment in L.Krishnan vs. State of Tamil Nadu [2005 (4) CTC 1].
"6. It is also relevant to state that day in and day out, many such petitions are being filed by way of 'public interest litigation' alleging encroachments into ponds/tanks/lake/Odai Porambokes, etc. in different parts of this State, more particularly in villages. Having regard to the acute water scarcity prevailing 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 ear marked water storage tanks, ponds and lakes, as disclosed in the revenue records to its original status as part of its rain water harvesting scheme. We also take judicial notice of the action initiated by the State Government by implementing the water harvesting scheme as a time bound programme in order to ensure that the frequent acute water scarcity prevailing in this State is solved as a log time measure. In fact, the classification as Ooranis, Odais and Lakes in the revenue records are all areas identified in the villages where the rain water gets stored enabling the local villagers to use the same for various purposes throughout the year inasmuch as most parts of the State are solely dependant on seasonal rains both for agricultural operations as well as for other water requirements. Therefore, it is imperative that such natural resources providing for water storage 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."
14. The submissions of the learned Special Government Pleader is that if the property is classified as Odai Poramboke, then unless and until, it is reclassified as poramboke, the question of issuance of patta will not arise.
15. This Writ Petition is disposed of directing the respondents to consider the representation of the petitioner in the light of the directions extracted above and also the objections and explanations given by the petitioner and pass orders within six weeks in accordance with law and in accordance with the State policy as declared in the above Acts and also in consonance with the State's duty to protect water courses. Till such time the objections are considered and orders are passed, the possession of the petitioner shall not be disturbed. Connected Miscellaneous Petition is closed. No costs.
asvm To
1.The District Collector, Dindigul District.
2.The Tahsildar, Ottanchatram Taluk, Ottanchatram, Dindigul District.
3.The Revenue Inspector, Ottanchatram Taluk, Ottanchatram, Dindigul District.