Madras High Court
K.P.Vijayan vs The District Revenue Officer on 25 March, 2008
Author: P.Jyothimani
Bench: P.Jyothimani
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25.03.2008 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.59 of 2004 1. K.P.Vijayan 2. C.Muniyandi 3. V.Seethayan 4. M.Chinnaiah 5. A.Palaninathan 6. A.Arulandu 7. AL.Thavasumani 8. AL.Gurusamy 9. PR.Pandian 10. RM.Rukmani 11. S.Palsamy 12. R.Eakambareswari 13. R.Ramesh 14. M.Abdul Jaffar 15. RM.Murugan 16. M.Chokkan 17. S.Ganesan 18. K.Pachai Muthu 19. K.Annapoorani 20. TR.Neethipathi 21. TR.Ganapathy 22. Maideen 23. S.Balgis Begam 24. E.Syed Ibrahim 25. S.Raja Mohammed 26. A.Ayyavu 27. AR.Vaithiyanathan 28. PR.Subbiah 29. M.Ramayee 30. M.Selvi 31. RM.Bakkiammal 32. M.Palniammal 33. A.Mariya Selvam 34. A.Alagammal 35. M.Arjunan 36. K.Mariya Selvam 37. M.Pappa 38. RM.Nagammal ... Petitioners vs. 1. The District Revenue Officer, Sivagangai District, Sivagangai 623560. 2. The Tahsildar, Tirupattur Taluk 621105, Sivagangai District. 3. The Revenue Inspector, Ilayathankudi, Sivagangai District. 4. N.Alagappan ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorari, calling for the records relating to the order of the 1st respondent in proceedings No.Na.Ka.E4/61531/2000 dated 26.12.2003, which was received by the petitioner on 01.01.2004 only, confirming the order of the 2nd respondent in Proceedings No.R.F.XIV-C-1-2,26,200-MADURAI-2002 dated 24.01.2003 and quash the same. For Petitioner : Mr.R.Parthiban For R1 to R3 : Mrs.Geetha, Addl. Government Pleader For R4 : Mrs.Vijayakumari Natarajan ------ O R D E R
This writ petition is directed against the order of the first respondent, the District Revenue Officer, Sivagangai, dated 26.12.2003, rejecting the revision filed by the petitioners.
2. The petitioners are stated to have been in possession of an extent of 2.19.0 hectares of land in S.No.218 in A.Thekkur Village, which was originally classified as Panchayat Poramboke and the contention is that each one of the petitioners are in possession of 3 cents of land and their possession relates back to many years. Some of the petitioners have also put up shops in front of the portions of their houses, which are their source of livelihood. After many representations, the second respondent Tahsildar, by an order dated 16.12.1982 has regularized the occupation of the petitioners and according to the petitioners, the plots occupied by them are not objectionable in character. The petitioners have put up constructions and have also been paying property tax to the authorities. In August 2000, the District Revenue Officer issued press news stating that the Government has decided to give patta to all the occupants of small pieces of land, who are in occupation for more than 10 years. It was based on the said press release, the petitioners have also given applications to the second respondent and the second respondent is stated to have directed the Survey Department to measure small piece of land in order to grant patta to the petitioners. In the meantime, the fourth respondent, one N.Alagappan, who has been impleaded in this writ petition, representing the Trustees of Nagarathar Sivan Koil and claiming that the said lands belonged to the Temple has filed a suit in O.S.No.108 of 2000 on the file of the District Munsif Court, Tirupattur for an injunction and possession. There was another suit in O.S.No.183 of 2000 before the Sub-Court, Sivagangai.
3. The case of the petitioners is that the suit filed by the said Alagappan was dismissed and thereafter he moved this Court by filing W.P.No.2159 of 2001 for a direction against the first and second respondents to take action in evicting the petitioners from S.No.218 of A.Thekkur Village on the basis that they are encroachers and claiming that the property is a OORANI LAND belonging to the Sivan Temple formed by the Nagarathar community, represented by the fourth respondent. While disposing of the said writ petition, this Court, by order dated 06.02.2001 has directed the authorities to take action in evicting unauthorised encroachers, who are in illegal occupation.
4. Pursuant to the order of this Court as stated above, the second and third respondents have issued notice against the petitioners under Section 6 of the Encroachment Act. The petitioners have in fact filed W.P.No.8477 of 2001 on the ground that Section 7 notice was not given prior to the issuance of notice under Section 6 of the Encroachment Act. This Court, by order dated 28.02.2002 has allowed the writ petition filed by the petitioners and directed the authorities to take fresh action by giving notice under Section 7 of the Encroachment Act. The third respondent has accordingly issued notice to the petitioners and in fact, the petitioners have submitted their reply and thereafter the order under Section 6 of the Encroachment Act came to be passed on 14.01.2003. Even though, the second respondent has passed individual orders under Section 6 of the Encroachment Act, a single appeal was filed by all the 38 petitioners herein to the first respondent, who, by an order dated 11.04.2003 has informed the petitioners that he has no jurisdiction to entertain the appeal. It was against the said order, the petitioners filed W.P.No.18943 of 2003 to quash the proceedings of the first respondent dated 11.04.2003, signed by the first respondent on 16.06.2003. The said writ petition came to be allowed on 09.07.2003 and the order of the first respondent, dated 11.04.2003 signed on 16.04.2003 was set aside with a direction to the first respondent to dispose of the appeal on merits giving fair and a reasonable opportunity to the petitioners. In the meantime, the fourth respondent who has earlier filed the writ petition in W.P.No.2159 of 2001 has filed Contempt Petition No.504 of 2003 against the Revenue Divisional Officer and the Tahsildar, in which notice was issued.
5. Pursuant to the order dated 09.07.2003 passed in W.P.No.18943 of 2003, the first respondent has issued notice to the petitioners and thereafter, the impugned order came to be passed on 26.12.2003, which according to the petitioners was received by them on 01.01.2004. The impugned order passed by the first respondent and the revision were challenged by the petitioners on many grounds including, that the first respondent has failed to take into consideration that the Tahsildar has regularised the occupation of the petitioners by order dated 16.12.1982; that as per the News Report given by the first respondent, the Government has decided to give patta to all occupants of small pieces of government lands provided, they continue to be in occupation for more than 10 years and in spite of the News Report, the first respondent has not taken the same into consideration; that the 4th respondent has falsely claimed the possession of the property as if it belonged to Nagarathar Sivan Temple, which has been rejected by the Civil Court and having failed in his attempt before the Civil Court, he has approached this Court, wherein a direction was issued to the respondents 1 and 2 to take immediate action to evict the encroachers from S.No.218 of A.Thekkur Village and pursuant to the said order of this Court, a direction was issued in W.P.No.8477 of 2001 to the authorities for issuance of notice under Section 7 of the Encroachment Act for removal of encroachments.
6. The respondents 1 to 3 have filed counter affidavit. While the facts narrated above are not denied, it is the case of the respondents 1 to 3 that it was as per the direction of this Court to remove the encroachments, the respondents have taken action. It is stated that after the notice issued under the Land Encroachment Act was received, one of the petitioners, namely, K.P.Vijayan has filed a suit in O.S.No.69 of 2002 in the District Munsif Court, Tirupatthur, claiming title on the suit property and it was in the meantime, the fourth respondent has filed C.R.P.No.1365 of 2002 under Article 227 of the Constitution of India against the said suit and ultimately the said petitioner has withdrawn his suit. In the meantime, the petitioners have filed appeal petition before the District Collector, Sivaganga not to remove the encroachments. On 11.04.2003, the first respondent had disposed of the appeal petition stating that he has no jurisdiction and ultimately that order was set aside by this Court with a direction to the first respondent to pass orders on merits and it was thereafter the first respondent after hearing the petitioners and after conducting enquiry passed the impugned order.
7. The respondents 1 to 3 have denied the allegation of the petitioners that in respect of S.No.218 their possession was regularised in the year 1992, on the basis that the possession of the petitioners is highly objectionable and the petitioners are only unauthorised occupants. It was only after finding that the petitioners are in unauthorised occupation, the proceedings under the Encroachment Act were initiated and final order passed by the respondents, which is impugned in this writ petition.
8. When the matter was taken up for final disposal, this Court has directed the learned Government Advocate appearing for respondents 1 to 3 to produce the entire files relating to the enquiry conducted regarding the encroachment as per the orders of this Court passed earlier. Accordingly, the learned Government Advocate has produced the files.
9. Mr.R.Parthiban, learned counsel for the petitioners would submit that the petitioners have raised a specific ground in the revision petition before the first respondent that the petitioners have been in possession for a long period and in fact they have acquired title by adverse possession and in spite of the specific plea raised in the grounds before the first respondent, the first respondent has not chosen to consider the same. He would also submit that referring to a legal opinion given by the Government Advocate to the District Collector as it is seen in the file, wherein it was stated that after perusing the entire papers and also various orders passed by this Court, there is reason to believe that the petitioners have been in possession for many number of years and according to the learned counsel for the petitioners, the first respondent ought to have considered the same before passing the order. According to him, the order of the first respondent is not passed by proper application of mind. It is his contention that in fact some of the petitioners have produced the orders of the Tahsildar of the year 1982, by which regularisation has been made.
10. Mrs.Geetha, learned Additional Government Pleader appearing for respondents 1 to 3, on producing the files would submit that the impugned order came to be passed only as per the direction of this Court, but on enquiry it was found from the Revenue records that the place in occupation of the petitioners are Oorani lands and as per the established principles of precedence and also the advent of the new legal system, anybody who is in occupation of water courses, river beds, etc have no right to continue to be there and therefore, the action taken is in accordance with law and order passed after giving opportunity to the petitioners and the petitioners have submitted their objections.
11. Mrs.Vijayakumari Natarajan, learned counsel appearing for the fourth respondent would submit that it is true that originally, the fourth respondent had filed a writ petition in 2001 on the basis that the property which is the subject matter of dispute in this case belonged to the Sivan Temple of Nagarathar community of A.Thekkur Village and subsequently when it was found that the said land was Oorani land, the fourth respondent has given up the plea that the same belonged to the Sivan Temple. But her contention is that, when the land is categorised as Oorani land, it has to be retained in the interest of the general public and therefore, she would submit that among the petitioners, an enquiry was conducted and some of the persons were declared as persons eligible for alternate sites and alternate plots were allotted and therefore, the petitioners cannot have any grievance. It is her further submission that if the petitioners desire to establish that they have been in possession for a long time by acquiring title by prescriptive possession, it is for them to establish before the competent Court of law.
12. Heard the learned counsel on either side and perused the entire material records.
13. It is not in dispute that the impugned order was passed by the first respondent as per the direction of this Court. The averment of the petitioners is that the enquiry was not properly conducted, especially when the petitioners have taken the stand that they have been in possession for many years. It is true that if the petitioners have been in continuous possession of the property for a long time as per law and that they are entitled for relief in the appropriate forum. But, the question is whether the first respondent who has passed the impugned order has any such power to make such declaration. It is well settled that in case where the petitioners are in continuous possession for more than 30 years in respect of the public land, the same requires appreciation of evidence by the competent court of law. Neither the first respondent deciding as a revisional authority nor the Court exercising jurisdiction under Article 226 of the Constitution of India have any such power.
14. Admittedly, no one has filed any suit for declaration claiming title by long possession, even though a suit was filed in O.S.No.69 of 2002 challenging the earlier notice given under Section 6 of the Encroachment Act. In such circumstances, it is not for this Court at this stage to hold that the petitioners are entitled for possessory title. Mr.Parthiban, learned counsel for the petitioners has also referred to some of the messages received by the Sub-Collector from the District Collector, in which the District Collector has directed the Sub-Collector to find out as to whether alternate place is available to those occupants and as to whether the Oorani is really in existence and also inform as to whether the government buildings which have been put up in Oorani lands can be vacated. In the absence of any such query by the Collector, it is not open to the first respondent to come to the conclusion. Even though it is true, that these are all internal communications between the officials, it is seen in the file that the District Collector has conducted an enquiry regarding granting of alternate sites and in fact some of the petitioners have been considered for granting of alternate sites in respect of S.No.65 of 2001. Even then, it is for the respondents to decide about the granting of alternate sites to the petitioners considering the long time they have been in possession, but that cannot be the reason for the petitioners to continue to be in possession of Oorani lands.
15. In T.N. Act No.8/2007, namely, Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007, the measures for checking the encroachment, eviction of encroachment in tanks have been enshrined. Under Section 2(l) of the Act, the term 'tank' has been defined as a storage structure built in for harnessing water for use and includes supply channel and its cross masonries, tank sluice, surplus water, surplus course and its cross masonries; field channel and its cross masonries besides the drains and tank poramboke lands which are under the control and management of Public Works Department. For the purpose of evicting any person who has occupied such tank, the procedure is the same as that of the procedure laid down under the Encroachment Act and therefore, the action taken by the respondents in giving notice to the petitioners under Section 7 of the Act and thereafter issuing notice under Section 6 of the Encroachment Act cannot be said to be an action against the provisions of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007 and therefore, it cannot be said that the procedures followed is against law.
16. In the case of L.Krishnan vs. State of Tamil Nadu, rep. by its Secretary, Chennai 600 009 reported in 2005 (4) CTC 1, a Division Bench of this Court consisting of Justice Markendey Katju (as His Lordship then was) and Justice F.M.Ibrahim Kalifulla has held that Article 51-A(g) of the Constitution makes it a fundamental duty of every citizen to protect and improve natural environment including forests, lakes, rivers and wild life. By referring to a judgment of the Supreme Court in the case of Animal and Environment Legal Defence Fund vs. Union of India reported in 1997 (3) SCC 549, this Court in the operative portion of the judgment stated above has held as under:
"12. Apart from the above we may also refer to Article 51-A(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."
17. The Supreme Court in the case of Intellectuals Forum, Tirupathi vs. State of A.P. and others reported in 2006 (2) CTC 71 has held that the tank is a communal property and the State Authorities are Trustees to hold and manage such properties for the benefit of community and cannot be allowed to commit any act or omission which will infringe the right of community and alienate properties to any person or Body. By referring to the criticisms of some of the environmental activists that the Judges are carried away by the money spent on projects and mega projects, that harm the environment are not condemned, the Supreme Court by applying the ruling in the earlier judgment in Virender Gaur & Others vs. State of Haryana and others reported in 1998 (1) CTC 143, has held that directions have been issued by the Supreme Court to ensure its enforcement by nothing short of demolition or restoration of status quo ante. The operative portion of the said judgment reads as under:
"42. However, some of the environmental activists, as noted in the 'The Environmental Activities Hand Book' authored by Gayatri Singh, Kerban Ankleswaria and Colins Gonsalves, that the Judges are carried away by the money spent on projects and that mega projects, that harm the environment are not condemned. However, this criticism seems to be baseless since in Virender Gaur & Others vs. State of Haryana and others, 1998 (1) CTC 143 : 1995 (2) SCC 577, this Court insisted on the demolition of structure which have been constructed on the lands reserved for common purposes and that this Court did not allow its decision in several cases issuing directions and ensuring its enforcement by nothing short of demolition or restoration of status quo ante. The fact that crores of rupees was spent already on development projects did not convince this Court while being in a zeal to jealously safeguarding the environment and in preventing the abuse of the environment by a group of humans or the authorities under the State for that matter."
18. In view of the consistent view of the Apex Court and also the law laid down therein, there is no difficulty to come to the conclusion that the impugned order of the first respondent is perfectly in accordance with law. In such circumstances, the reference made on behalf of the petitioners in the judgment passed by the Full Bench of this Court in the case of Ramaraju vs. The State of Tamil Nadu reported in 2005 (2) CTC 741 is of no use to the petitioners in this case, for the reason that it was a case wherein for removal of encroachment notice was issued by public address system and through beat of drums or by general notice in newspapers. The Supreme Court in its decision in Ahmedabad Muncipal Corporation vs. Nawab Khan Gulab Khan, AIR 1997 SC 152 has held that individual persons who are encroachers are entitled to reasonable notice.
19. In the present case, it is not in dispute that the petitioners have been given notice as per the principles of the Encroachment Act and procedures have been followed. In view of the same, there is no illegality or irregularity in the order passed by the first respondent dated 26.12.2003 and the writ petition is dismissed. It is always open to the petitioners to work out their remedy in the manner known to law either by claiming possessory title or by seeking alternate sites by approaching the concerned authorities.
No costs. Consequently, connected W.P.M.P.No.73 of 2004 is closed.
25.03.2008 Index : Yes/No Internet: Yes/No abe To :
1. The District Revenue Officer, Sivagangai District,Sivagangai 623560.
2. The Tahsildar, Tirupattur Taluk 621105, Sivagangai District.
3. The Revenue Inspector, Ilayathankudi, Sivagangai District.
P.JYOTHIMANI,J.
abe W.P.No.59 OF 2004 25.03.2008