Madras High Court
Y. Kidhermoidheen vs The Secretary To Government, Revenue ... on 6 December, 2005
Equivalent citations: (2006)1MLJ388
Author: P.D. Dinakaran
Bench: P.D. Dinakaran
ORDER P.D. Dinakaran, J.
Page 215
1. Petitioner seeks a writ of mandamus forbearing the respondents from evicting the petitioner from the land in S. No. 65, Solur Village, Vaniyambadi Taluk, Vellore District in which the petitioner is in occupation, unless by following the due process of law.
2. In the affidavit filed in support of the writ petition, the petitioner has stated that he has constructed a house in the year 1960 in S. No. 65, Solur Village, Vaniyambadi Taluk, Vellore District. He got electricity connection, his name has been included in the voters list and he has also a ration card and is living there for over 40 years. This property and some other Survey Numbers are included in the 4th ward of Solur Panchayat. There is a lake by name Periyankuppam from which water flows and used for irrigating several lands and it is far away from the petitioner's house. The surplus water from the lake flows into Vellakkal dam. The Panchayat has constructed a canal for the flow of water from the lake. Only during rainy season, the lake is filled up to some extent. The Government has also constructed a building for the Magalir Suya Udhavi Kuzhu, a public lavatory and other buildings for public usage. There is also a mosque near the house. On 5.11.2005, the third respondent Tahsildar came along with the Village Administrative Officer to that ward and informed the petitioner and the other residents that in view of the judgment in , they are taking steps to remove the Page 216 petitioner and others from S. No. 65 etc., as those lands are classified as "Odai poramboke". The third respondent took a list of names of occupiers of the disputed Survey Numbers and the occupants including the petitioners were asked to vacate the house and deliver vacant possession. When demanded by the petitioner, the third respondent refused to give any notice. This Court in several cases has held that the Government or local panchayats have no power or authority to evict or remove the encroachments without following due process of law. In fact the petitioner and others have been permitted to construct houses, water charges are being levied, electricity connection given, ration card issued and their names have also been included in the voters list. Therefore, the petitioner cannot be removed without following the due process of law. As the petitioner and others are threatened of eviction, the above writ petition has been necessitated.
3. Learned counsel for the petitioner submitted that the petitioner is in possession of the disputed property for the last 40 years by paying revenue charges, water charges and he has also got electricity connection and he has been assessed B-Memo all these years and as such, the threat by the third respondent basing the judgment of this Court in L. Krishnan v. State of Tamil Nadu 2005 (4) CTC cannot be countenanced and that therefore, a writ of mandamus as sought for has to be granted.
4. On the other hand, learned Government Advocate submitted that the First Bench of this Court in the aforesaid decision has directed the State Government to make an overall study of all such encroachments in respect of lands which have been classified as lands meant for storage of water, i.e. ponds, tanks, lakes, etc., and such a step is required to be taken by the State in order to improve the water storage facility prevailing in the State since in many parts of Tamil Nadu people are suffering from an acute shortage of water and as such, the 3rd respondent only in furtherance of implementing the order of this Court, has taken preliminary steps for encroaching the petitioner and others, who are occupying Odai Poramboke lands. Therefore, the petitioner cannot be permitted to maintain this writ petition.
5. In L.Krishnan's case, the First Bench of this Court has cited several decisions of the Supreme Court and of this Court and more particularly to Hinch Lal Tiwari v. Kamala Devi . In that judgment, in para 13 it is stated thus:-
It is important to notice that the material resources of the community like forests, tanks, ponds, hillock, mountain, etc. are nature's bounty. They maintain delicate ecological balance. They need to be protected for a proper and healthy environment which enables people to enjoy a quality life which is the essence of the guaranteed right under Article 21 of the Constitution. The Government, including the Revenue Authorities i.e., Respondents 11 to 13 having noticed that a pond is falling in disuse, should have bestowed their attention to develop the same which would, on one hand, have prevented ecological disaster and on the other provided better environment for the benefit of the public Page 217 at large. Such vigil is the best protection against knavish attempts to seek allotment in non-abadi sites.
Taking note of the aforesaid ruling, the First Bench has finally held thus:-
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 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.
6. In the face of the aforesaid decision, the third respondent has taken preliminary steps to evict the encroachers on the ground that they have encroached upon Odai Poramboke. Therefore, the petitioner cannot be permitted to contend that he has been in possession of such land for ever so many years or that he has got electricity connection or that he has paid B memo charges. Further, the petitioner's contention that his house is located far away from the water source, viz., dam or that the Panchayat has constructed a canal for the flow of water or there are other buildings put up by the local body. It is for the third respondent and other concerned revenue officials to take action to evict the encroachers, which they deem necessary to maintain delicate ecological balance and provide a proper and healthy environment to enable people to enjoy a quality life, which is the essence of the right guaranteed under Article 21 of the Constitution of India. The Government, including the revenue authorities, having noticed that a pond or lake is falling in disuse, should bestow their attention to develop the same, thereby they can prevent the ecological disaster and also provide better environment for the benefit of public at large. In this view of the matter, I do not find any merit in the writ petition and the same is accordingly dismissed. No costs. Consequently, connected WPMP is also dismissed.