Madras High Court
) S. Geetha Selvaraj vs The District Collector on 1 October, 2018
Author: S.Ramathilagam
Bench: M.Venugopal, S.Ramathilagam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 05.09.2018
PRONOUNCED ON : 01.10.2018
CORAM
THE HONOURABLE MR.JUSTICE M.VENUGOPAL
AND
THE HONOURABLE MRS.JUSTICE S.RAMATHILAGAM
W.P. Nos.8355 and 34132 of 2017
V. Ramanathan (Died)
1) S. Geetha Selvaraj
2) S. Raguna Sekar
3) M. Sujatha
4) Venkatesaguptha
5) R. Narayanan
6) R. Sri Narasimhan
Petitioners 1 to 6 substituted in the place of
deceased V. Ramanathan as per order dated 05.04.2018
... Petitioners
in W.P. No.8355 of 2017
V. Baskaran .... Petitioner
in W.P. No.34132 of 2017
versus
1. The District Collector,
Villupuram,
Villupuram District.
2. The Deputy Director,
Town and Country Planning,
Villupuram,
Villupuram District.
3. The Municipality Commissioner,
Kallakurichi Municipality,
Vilupuram District.
4. The Revenue Divisional Officer,
Revenue Divisional Office,
Kallakurichi, Villupuram,
Villupuram District.
5. The Tahsildar,
Kallakurichi Tahsildar Office,
Kallakurichi Villupuram,
Villupuram District. ... Respondents in both writ petitions
6. V. Baskaran ... 6th Respondent
in W.P. No.8355 of
2017
Prayer in W.P. No.8355 of 2017 : Writ Petition filed under Article 226 of the Constitution of India to issue writ of Mandamus, directing the Respondents 1 to 5 to consider the representation of the Petitioner, dated 16.02.2017 and thereby directing the Respondents 1 to 5 to remove all encroachments made in road poramboke land, comprised in survey No.457, situated at Chekku Mettu Street, Nattuthakka, Muniappar Koil Junction as per Notice, dated 26.11.2016 issued by the 3rd Respondent in Na.Ka.No.A1/4370/2015.
Prayer in W.P. No.34132 of 2017 : Writ Petition filed under Article 226 of the Constitution of India to issue writ of Mandamus, directing the Respondents 2 and 3 to regularise the building of the Petitioner situated at bearing Door No.80, Bazaar Street, Kallakurichi Town and Taluk, Villupuram District, as such based on the application of the Petitioner, dated 16.12.2017 within the stipulated time.
For Petitioner in W.P. No.8355 of 2017 : Mr.N.Ramesh
Mr.S.Subramaniya Raja
For Petitioner in W.P. No.34132 of 2017 : Mr.C. Prabakaran
Mr.N. Vinoth
For Respondents : Mr.M.Elumalai,
Government Advocate
for RR1 to 5 in
WP No.8355 of 2017
and for Respondents in WP No.34132 of
2017
Mr.B.Dhanraj for R6
W.P. No.8355 of 2017
COMMON ORDER
S.RAMATHILAGAM, J.
Writ Petition in W.P.No.8355 of 2017 has been filed by the Petitioner, V.Ramanathan (deceased, now represented by Petitioners 1 to 6), praying for issuance of a Writ of Mandamus, to direct the Respondents 1 to 5 to consider the representation of the Petitioner dated 16.2.2017 and directed them to remove all encroachments made in Road poramboke land, comprised in Survey No.457, situated at Chekku Mettu Street, Nattuthakka, Muniappar Koil junction as per Notice, dated 26.11.2016 issued by the 3rd Respondent in Na.Ka.No.A1/4370/2015.
2. According to the Petitioner, he is the absolute owner of the property situated in Kallakurichi village and taluk, Villupuram District comprised in old survey No.296/IA1C, measuring to an extent of 4.5 cents by way of sale deed, registered at the office of the Sub-Registrar, Kallakurichi vide document No.243/1967. In the said property, the Petitioner has constructed a small shop on the road side in road poramoboke land in Survey No.457 for about 120 sq. ft. only. While so, the 4th Respondent had issued notice, dated 21.09.2012 for eviction of the Petitioner from the property in respect of road poromboke land in S.No.457. The Petitioner had put up construction in and about 120 sq. ft. only in the said Survey Nos.457 as a small shop on backside of the Petitioner's house property. The 3rd Respondent and the 4th Respondents came to the place of the Petitioner and stopped the construction by saying that the place wherein the Petitioner had put up construction, is a Government poromoboke and immediately, on their instructions, he stopped the construction. However, later the Petitioner was informed that the property in Survey No.457 belongs to Kallakurichi Municipality.
3. The grievance of the Petitioner is that the Respondents did not stop the construction work of the 6th Respondent made in S. No.457. The 6th Respondent has built up 3 storeyed building and he has encroached nearly 2000 sq. ft. of Government road poromboke land, which is situated next to the Petitioner's property.
4. The 3rd Respondent issued notice in Na.Ka. No.1271/2012/A3, dated 21.09.2012 for removal of construction made in the road poromboke land and in the said notice, the 3rd Respondent informed the Petitioner that he has to pay a sum of Rs.31,982/- to the Municipality for removal of construction made in survey No.457. The Petitioner failed to pay the amount as over charged and a request was made to the 3rd Respondent to furnish the details of the amount. The 3rd Respondent also informed the Petitioner that the charges includes the removal of encroachment for the construction made by the 6th Respondent also. The 3rd Respondent orally asked the Petitioner to pay a sum of Rs.800/- only for removal of construction made by him without giving any proper notice. Inspite of the requests made by the Petitioner, the Respondents have not respondened to him. Hence, the Petitioner has submitted a representation dated 04.09.2015 to Respondents 1 and 3, but no response was forthcoming. The Petitioner without any option, filed the writ petition in W.P. No.36155 of 2015 for issuance of Certiorarified Mandamus to call for the records in Na.Ka.No.1271/2012/A3 before this Court and quash the same. By order dated 16.11.2015, while disposing of the said writ petition, this Court has given liberty to the Petitioner to put forth his point of view before the authorities and the authorities were also directed to consider the same and take a decision on merit within the time frame.
5. The further grievance of the Petitioner is that even after the direction of this Court, the requests of the Petitioner to issue him a separate notice and fix the amount for removal of encroachment has not been responded by the Respondent. Hence, the Petitioner filed a contempt petition after giving notice to the 3rd Respondent for the disobedience of the order, dated 16.11.2015. During the pendency of the contempt petition, the 3rd Respondent issued a notice to the Petitioner and also to the 6th Respondent by name B.Baskaran stating that they should remove their respective encroached portions in the road poromboke by themselves, failing which the encroachment will be removed at their end on 29.08.2016 and the costs for removing the encroachment will be collected from them.
6. In response to the notice, the Petitioner through his son appeared before the 3rd Respondent but the 6th Respondent did not appear for the enquiry. When the contempt petition came up for hearing, the Learned Government Pleader filed the status report that final notice, dated 26.11.2016 was issued to the Petitioner and the 6th Respondent instructing them to clear their encroachments by themselves and if they failed to do so, it will be removed or evicted fully on 01.12.2016 with the help of police. In view of the status report, the said contempt petition filed by the Petitioner came to be dismissed on 28.11.2016. Subsequent to the dismissal of the contempt petition, the encroachment / construction made by the Petitioner in S. No.457 at Road poromoboke was demolished but the encroachment / construction made by the 6th Respondent at road poromboke land was not demolished. The 6th Respondent filed the writ petition No.42624 of 2016 before this Court, seeking to call for the records of the 3rd Respondent in Na.Ka.No.A1/4370/2015, dated 26.11.2016 aand quash the same, wherein, he obtained an interim stay.
7. The said writ petition filed by the said Baskaran, 6th Respondent herein along with stay petition came to be dismissed on 04.01.2017. The copy of the order passed by this Court in the Writ Petition No.42624 of 2016 was sent to the Respondents 2 and 3 but still the Respondents have not taken any action against the encroachment made by the 6th Respondent.
8. The grievance of the Petitioner is that only his construction was demolished but the encroached building of the 6th Respondent, which is also an unauthorised building was not demolished, which shows that the authorities acted with bias and prejudice and shown utter discrimination of power. Further, the Petitioner made a representation on 16.12.2017 to the Respondents 1 to 5 to take appropriate action against the 6th Respondent and to remove encroachment made in S.No.457 at road poramboke land in accordance with law. But no action was taken by the Respondents, hence the Petitioner has filed the present Writ Petition, seeking for Mandamus for a direction to the Respondents to consider his representation.
9. The Learned Government Advocate appearing for the Respondents 1 to 5 has contended that in view of the directions issued by this Court, steps were taken to remove the encroachments by giving a direction to the concerned authorities. The 6th Respondent Baskaran, who is also an encroacher appeared before the Respondents with relevant documents and sought for issue of patta. In the sale deed of the year 1973, there was an additional extent of lands and the said extra land was road poromboke and it is found that the said Baskaran was not issued with any patta and he also informed the same in WMP No.12311 of 2018 in W.P. No.8355 of 2017. A direction was given to the Commissioner and the Revenue Divisional Officer, Kallakurichi to file a report with regard to the encroachment in Survey No.457/1. Accordingly a report also filed with regard to the details of persons and the extent encroached by the said persons. In view of the said report, a direction was given for removing the encroachment on 24.04.2018. The further contention made by the Respondents is that the said Baskaran has filed a petition in WMP No.12311 of 2018 by stating that he has preferred a writ petition seeking for regularisation of his contruction before the concerned authority and hence the writ petition in W.P.No.34132 of 2017 has to be heard along with W.P.No.8355 of 2017.
10. On a perusal of the entire pleadings, this Court finds that the Petitioner in W.P.No.8335 of 2017 is aggrieved against the authorities for removal his encroachment, but also for not removing the encroachment made by the 6th Respondent. In fact, the 6th respondennt was also issued notice by the authorities informing that he encroached an extent of 12.24 sq.mts., and the same has to be removed, which was disputed by the 6th Respondent and there was difference in total extent of encroachment and therefore, he made a representation to carryout the exact measurement. However, as there was no response and a further notice was issued on 26.11.2016 for removal of the encroachment. Challenging the same, the 6th Respondent filed a writ petition in W.P.No.42624 of 2016. The First Bench of this Court, by order, dated 4.1.2017 dismissed the said writ petition, with the following observation:
"1.The Petitioner and third Respondent both encroached on road poramboke land. The third Respondent had initiated the litigation by filing the earlier writ petition. His construction is stated to have been now removed. In case of Petitioner, the encroachment has not been removed despite the notice having been sent in which the Petitioner failed to participate. The encroachment is to the extent of 12.24 sq. meters and this is after measurement and demarcation at site.
2.In view of the aforesaid facts and circumstances, we see no reason to accept the request of the Learned counsel for the Petitioner to once again carry out demarcation at site.
3.We find no infirmity in the impugned order.
Writ petition is, accordingly, dismissed. No costs. Consequently, W.M.P.Nos.36542 and 36543 of 2016 also stand dismissed."
11. As against the above order, no appeal was preferred by the 6th Respondent. However, he filed a review application in Rev.Appl.No.136 of 2017. However, by order dated 6.10.2017, the First Bench of this Court dismissed the said review application, with the following observation as found in paragraphs 7 to 9:
"7.This review application, is predicated on the pivotal point that there has been some error in measurement.
8.We put it to the Learned counsel as to what exactly is the error according to him. Even, according to the review applicant, the difference and extent between the encroachment as set out in the impugned notice and according to him is only 4 sq.mtrs. Though this is no ground for review, but considering the above submission of the Learned counsel for the Petitioner, we are not delving any further into this aspect of the matter. No point for review has been made out.
9.There is no ground for review and the review application is dismissed. No costs. Consequently, W.M.P.No.20033 of 2017 also stands dismissed."
12. Therefore, admittedly, the 6th Respondent had made encroachment. Having failed in his attempts to protect his encroachment, again the 6th Respondent has come forward with the present writ petition in W.P.No.34132 of 2017, seeking to direct the Respondents 2 and 3 therein, to regularise the building of the 6th Respondent which was constructed over the encroached area.
13. The Petitioner moved the present Writ Petition in W.P.No.8355 of 2017, seeking to direct the Respondents 1 to 5 to remove all encroachments made in road poramboke land, comprised in survey No.457, situated at Chekku Mettu Street, Nattuthakka, Muniappar Koil Junction as per Notice, dated 26.11.2016 issued by the 3rd Respondent in Na.Ka.No.A1/4370/2015. While entertaining the said Writ Petition, on 17.4.2017, the First Bench of this Court, passed the following:
"It is the grievance of the Petitioner that the illegal encroachment of the Petitioner has been removed, but not the encroachments of the other encroachers and in particular, the encroachment of the Respondent No.6.
The Learned Government Pleader does not dispute that the Respondent No.6 is also an encroacher. He submits, on instructions, that steps shall be taken for removal of the encroacment of the Respondent No.6.
The illegal encroachment of Respondent No.6 shall be removed and a compliance report be placed in Court on 9.6.2017."
14. Therefore, a perusal of the above reveals that the Hon'ble First Bench of this Court has virtually decided the Writ Petition 8355 of 2017 on 17.4.2017 and directed the Respondents to remove the illegal encroachment made by the 6th Respondent and file a compliance report before it on 9.6.2017. This order has not been complied with by the Respondents/authorities till date though they caused demolition notice on 17.4.2018 since the 6th Respondent has been frustrating the attempts of the Respondents one way or the other by filing review application, modification application and another fresh writ petition, etc. In fact, by order dated 24.4.2018, while taking note of the submission made on behalf of the 6th Respondent that application for regularization was pending before the authority, this Court deferred the demolition of the superstructure of the 6th Respondent.
15. The original Petitioner in the present Writ Petition 8335 of 2017, namely, V.Ramanathan whose encroachment had already been removed by the authorities, during the pendency of the Writ Petition, had died and it is unfortunate that his prayer for removal of the encroachment of the 6th Respondent has not been finalised.
16. It is very unfortunate that though this Court, time and again frowned upon the issue of encroachments and issued several directions to the authorities to take stern action against the encroachers of unauthorized constructions and in order to implement the orders of this Court by the authorities, even extended police assistance to them. No person has a right to encroach upon the Government land. A stringent action is required to be taken, the moment unauthorized construction is commenced and the authorities concerned cannot remain silent spectators when persons start encroaching upon the Government land. It is pertinent to note that without the knowledge of the authorities, no person can encroach upon the Government land or make unauthorized constructions and even if they did, no matter of time, it would be brought to the notice of the authorities. Therefore, it is the duty cast upon the authorities to ensure that no encroachment is made on the public land and no unauthorized construction is made.
17. In the present case, the 6th Respondent admittedly constructed the building on the encroached area and despite the directions of this Court for removal of the same, one way or the other, he successfully dragged on the issue till date. In his writ petition, he sought for regularization of unauthorized building constructed by him in light of G.O.Ms.No.110 Housing & Urban Development (UD-4(3) Department dated 22.6.2017, which cannot be entertained since no regularisation can be sought for in respect of encroachment of Government poramboke lands.
18. In view of the decision arrived in the judgment reported in 1985 3 SCC 545 in the matter of Olga Tellis and Others versus Bombay Municipal Corporation and others in Writ Petitions Nos.4610-4612 of 1981 and Vayyapuri Kuppusami and others versus State of Maharashtra and others in Writ Petitions Nos.5068-5079 of 1981, wherein it was held by quoting the quotation as follows :-
56. We will close with a quotation from the book of Susan George, wherein he says
37. "How the Other Half Dies The Real Reasons for World Hunger" (Pelican books) Malnourished babies, wasted mothers, emaciated corpses in the streets of Asia have definite and definable reasons for existing. Hunger may have been the human race's constant companion, and 'the poor may always be with us', but in the twentieth century, one cannot take this fatalistic view of the destiny of millions of fellow creatures. Their condition is not inevitable but is caused by identifiable forces within the province of rational human control (p.15).
57. To summarise, we hold that no person has the right to encraoch, by erecting a structure or otherwise, on footpaths, pavements or any other place reserved or earmarked for a public purpose like, for example, a garden or a playground.
19. Therefore, the 6th Respondent is not entitled to seek indulgence of this Court. Further, it is to be noted that the illegal construction of a petty shop in an extent of 120 sq.ft. of the Petitioner was removed by the authorities, whereas, admittedly, the 6th Respondent illegally constructed three storyed building by encroaching upon the Government poramboke land is not proceeded with. The authorities should have enforced the rule of law equally against on all persons who encroached the Government poramboke land and made illegal constructions and directed to take immediate steps against the 6th Respondent, illegal construction without any further delay for removal of the same.
20. In view of the foregoing discussion, the Writ Petition in W.P. No.34132 of 2017 filed by the 6th Respondent is dismissed. The Respondents/authorities are directed to take stern action and remove the encroachment of the 6th Respondent forthwith without giving any room for any delaying tactics. The Writ Petition in W.P. No.8355 of 2017 is disposed of. No costs. Consequently, all the connected WMPs are closed and the orders passed therein if any, are vacated.
(M.V., J.) ( S.R.T., J.)
01-10-2018
suk
Index: Yes/No
Internet: Yes/No
Speaking / Non speaking
To
1. The District Collector,
Villupuram,
Villupuram District.
2. The Deputy Director,
Town and Country Planning,
Villupuram,
Villupuram District.
3. The Municipality Commissioner,
Kallakurichi Municipality,
Vilupuram District.
4. The Revenue Divisional Officer,
Revenue Divisional Office,
Kallakurichi, Villupuram,
Villupuram District.
5. The Tahsildar,
Kallakurichi Tahsildar Office,
Kallakurichi Villupuram,
Villupuram District.
M.VENUGOPAL, J.
AND
S.RAMATHILAGAM, J.
suk/vsi2
Pre-Delivery order in
W.P. No.8355 and 34132 of 2017
01.10.2018