Madras High Court
Moorthy vs The District Collector on 6 February, 2018
Author: M.Venugopal
Bench: M.Venugopal, S.Vaidyanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:06.02.2018 Coram THE HONOURABLE Mr. JUSTICE M.VENUGOPAL AND THE HONOURABLE Mr. JUSTICE S.VAIDYANATHAN W.P.Nos.31241 to 31265 of 2017 and W.M.P.Nos.34294 to 34343 of 2017 W.P.No.31241 of 2017: Moorthy .. Petitioner Vs. 1.The District Collector, Kancheepuram District at Kancheepuram. 2.The Tahsildar, Sriperumpudur Taluk. 3.The Assistant Engineer, Public Works Department, WRD Irrigation Section, Padappai, Sriperumpudur Taluk, Kancheepuram District. ..Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Mandamus directing the respondents to reclassify and/or redesign the Water Course/Bodies of Adayar river more particularly in S.Nos.306/3C at Varadharajapuram, Kancheepuram District on the report of the expert committee. For Petitioner : Mr.T.Kalaimani For Respondents : Mr.A.N.Thambidurai Special Government Pleader COMMON ORDER
[Order of the Court was made by M.VENUGOPAL, J.] Heard the Learned Counsel for the Petitioner and the Learned Special Government Pleader for the Respondents.
2.According to the Petitioners, the present Writ Petitions are filed against the impugned notice ordering them to remove the encroachment for their residences situated in Survey Nos.306 and 306/3C at Varadharajapuram, Village No.93 in Sriperumbudur Taluk on the premise that they are obstructing the water flow into Adayar River. As a matter of fact, hundreds of plots/flats in the same Survey Number were approved by the Chennai Metropolitan Development Authority and they are not an approved one.
3.The stand of the Petitioner is that the Master Plan for CMDA 2026 shows that as per the resolution of the CMDA authority in 148/2013 in S.Nos.241/2A2, 2B and 246/2A the water body land was reclassified into PR and gazetted on 29.01.2014 and the plan indicates that numerous agricultural lands were classified into PR facilitating the real estate to convert them into plots which consist of hundreds of flats. In short, the action of the Respondents is an irrational and unreasonable and discriminatory one which defeats the objects of removing the encroachment and therefore, it is violative of Articles 14, 16 and 21 of the Constitution of India.
4.The Petitioners have come out with a version that the approved plots/flats came up in the same water body area from where they were asked to remove the encroachments without any rational objects and reasons. These buildings are only obstructing the water drains into Adayar River. By removing them from the same Survey No.306, the stand of the Petitioners is that the authorities cannot control the flood waters without removing the approved constructions in question. There was no channel existed for the flood water drain as claimed by the Respondents. In fact, the existing drain channel is beyond 150 metres from their place and it can be widened to feed the flood waters into Adayar. The 3rd Respondent is endeavouring to remove them under false claim and there are bigwigs Ample barren Government lands which are available to divert the course of Adayar River by straitening at many zig zag points and from the aerial survey maps it is quite evident and that can only be a permanent solution from the flooding.
5.The grievance of the Petitioner is that he has purchased the site in 1998 as in the case of other residents for considerable sum from his hard daily labour on the premise that the area will be approved later. Further he had constructed a house and obtained EB connection, family card, Aadhar, Voter ID card and paid revenue panel charges. They are not claiming any legal right for the encroachment but the removal of their residence would devastate for entire family. It is their case that they are occupying and living in the place with full knowledge of the Respondents. Similarly situated 800 houses in nearby village are not issued eviction notices as they were given patta for their occupation for more than two years under the Government scheme. They were also paying penal charges and assured of such facility, but now denied the relief in question.
6.In reality, the notice dated 14.11.2017 issued in their names requiring them to attend in person on 09.11.2017 with their available documents to substantiate their claims and this apparently exhibits non application of mind by the concerned authority. In fact, no notices were issued or pasted before 14.11.2017 and only on 19.11.2017 it was pasted as if it was a continuation of their earlier notice. All the residents are daily wage earners and they will not be available during the day times on all working days and the Respondents had not bothered to serve them personally when they were present. Besides these, the notice do not contain specific reasons for the direction to remove the encroachment and a stereo-typed message dated 14.11.2017 was issued with inclusion of several survey numbers. Since the notice mentions that the action is being taken as per the orders of this Court in some writ petitions, they are not able to understand the same because it was in English and that the 3rd Respondent had issued the notice in question without any factual details and the same is an illegal one.
7.It comes to be known that the Federation of Mudichur Residents Welfare Associations had personally met the Special Commissioner for State Disaster Management at Kancheepuram on 05.11.2017 and explained the reasons for the abnormal flooding that devastated their life and have suggested a rational idea to dredge a channel for a short distance of 20 feet in the available CMDA vacant land for 150 feet. Their suggestion was appreciated by the officers. Since they had not furnished the reply within the due date, on 19.11.2017, the Vallalar Nagar Residents Association on their behalf met the 1st Respondent and submitted a memorandum reiterating the aforestated suggestion for a permanent solution without removing the encroachers living there for considerable period with all evidence given by the Government Agencies and expressed that they were not given proper reasons and time for submitting their explanations.
8.On behalf of the Petitioners, it is represented that the removal of encroachers in small sizes will not pave way for success unless a resurvey of land to revise the decision for permanent solution. Further, they shall not hesitate to look into reality of approved plots\flats put up in the area that are classified as Water body where the encroachers are present.
9.In this connection, the Learned Counsel for the Petitioners points out that the notice itself mentions that only by removing them the flat wants to clear all obstructions in Adayar river for free flowing of water. The present state of Adayar is pathetic as at many points dredging is very much needed to keep free flow of water and this can be done only by a thorough investigation by a Special Expert Committee well versed with the water courses for which this Court may be pleased to appoint an expert committee under its watch and directions for arriving at a permanent solution.
10.Hence, the Petitioners have filed the present Writ Petitions praying for passing of an order by this Court in directing the Respondents to reclassify and/or to redesign the Water Course/ Bodies of Adayar River more particularly in S.Nos.306/3C at Varadharajapuram, Kancheepuram District on the report of the Expert Committee.
11.It is represented on behalf of the 1st Respondent/District Collector, by the Learned Special Government Pleader that in order to protect the water bodies, reclaim the Government lands and in view of the damages occurred due to heavy floods in November 2015, the District Collector, Kancheepuram had directed the Tahsildar, Sriperumbudur and Executive Engineer, Public Works Department to take necessary steps to evict the encroachments in the watercourse poromboke of Varadarajapuram Village. In the meanwhile, out of 186 encroachers, more than 50 persons of the encroachers filed Writ Petitions before this Court with a common prayer that they should not be evicted without giving proper opportunity/notice and the details of the cases filed are as under:
1.W.P.No.40723/2015,
2.W.P.No.4370 to 4386 of 2016 (8 Cases 4379-4386/2016 are disposed out of 17 cases and others 4370-4378/2016 are still pending.)
3.W.P.No.5062/2016, 4.W.P.No.373/16 5.W.P.No.381/2016
6.W.P.No.5904/2016 (50 persons)
12.The Learned Special Government Pleader for the 1st Respondent brings it to the notice of this Court that 17 encroachers out of 25 encroachers in the present Writ Petitions had filed W.P.No.5904 of 2016 with a prayer to forbear the Respondents from interfering or disturbing the Petitioner's peaceful possession and enjoyment of the residential property situated at S.No.306/3C, Sriram Nagar Extension, Vallalar Nagar, Varadarajapuram, Mudichur, Chennai 48, Sriperumbudur Taluk and apart from that, Suo Motu Public Interest Litigation W.P.No.11887 of 2016 was filed by one Rajivrai and others, who had filed W.P.No.39581 of 2016, 38234 of 2015, 39613 of 2015 and 38623 of 2015 before this Court seeking for passing of an order by this Court in directing the Respondents herein to immediately take steps for identification and preservation of the entire breadth and length of the coovam, river adayar, Buckingham canal and various other canal which carry the surplus water through the city into the sea, including fencing the boundaries and to take all such further steps for prevention of flooding in the future due to surplus of excess water flowing through such rivers.(W.P.No.39581 of 2015) and on 15.11.2016, this Court had passed the following directions:
(ii) Eviction of Encroachments:
It is only on 08.11.2016 and 12.11.2016 that a high level official meeting is stated to have been called by Chief Secretary consisting of the Officers of the Corporation of Chennai, Tamil Nadu Housing Board, District Collectors, Police Department and Water Resource Department in which the learned Advocate General was also present, to chalk out a plan of action for eviction of encroachments in Rivers Adayat, Cooum and the Buckingham canal. There are 55,000 encroachments which have been identified, out of which so far, only 4134 encroachments have been evicted and re-settled. In view of 8000 tenements being readily available, at least to that extent it is stated that the exercise would be completed and since more and more tenements are coming up, the exercise would continue. We would only say that there is an enormity of problems of encroachments going by its sheer number and the State Government will have to take expeditious steps for early removal of encroachments by construction of alternative tenements.
The progress report in this behalf also be filed before the next date of hearing.
Learned counsel in W.P.No.38623 of 2015 submits that a suggestion for barricading the river has been made. In this behalf, learned Advocate General submits that the barricading will be implemented, but the same is feasible only when the encroachments in the area are removed. Thus, phase-wise barricading would be done as and when encroachments are removed.
13.Pursuant to the aforesaid direction, the Revenue and Public Works Department authorities took initiative steps to evict the encroachers by issuing Form I, Form II and Form III and directed the encroachers to remove the encroachments within a stipulated time and it was also considered to provide alternate accommodation to the encroachers who are willing to remove their encroachments by themselves through the Tamil Nadu Slum Clearance Board at Serappanancheri Navalur Village.
14.Advancing his arguments, the Learned Special Government Pleader for the Respondents that the aforestated lands are classified as 'Water course Poramboke' the Tahsildar, Sriperumbudur Taluk has enumerated the list of encroachers in Form I and Form II under the Tamil Nadu Tank Protection and Removal of Encroachments Act, 2007 and furnished the same to the Executive Engineer, Public Works Department. After receipt of the said forms, the Executive Engineer of Public Works Department started to issue Form III notice to the encroachers to evict them under the Act, 2007 on 07.11.2016.
15.It transpires that as against the said Form III issued by the Assistant Engineer, Public Works Department on 07.11.2016, the Water course encroachers had filed W.P.Nos.42519-42542/2016 (24 cases) and W.P.Nos.42436-42441/2016 (6 cases) with a prayer to call for the records in proceedings No.Nil dated 07.11.2016 on the file of the 3rd Respondent and to quash the same as an illegal one etc. To the said aforestated Writ Petitions, counter affidavit was filed by the Tahsildar, Sriperumbadur, who had stated that the said lands are under the classification of Water course poramboke and this Court closed the said Writ Petitions with the following directions:
The learned Additional Government Pleader concedes that the process of enquiry as envisaged in the judgment of the Division Bench in T.S.Senthil Kumar v. The Government of Tamil Nadu and others, (2010) 3 MLJ 771, has admittedly not been followed in the present cases. He, however, submits that the scope of enquiry is limited to the extent that whether it is patta land and/or whether it is a water body.
2.It is nobody's case that pattas have been issued in respect of these lands. Thus, the scope of enquiry is limited to the extent of whether the area is a water body and covered under the provisions of the Tamil Nadu Protection of Tanks and Eviction of Encroachments Act, 2007 or not.
3.There is some controversy over the receipt of the notices, as it is alleged that the same were affixed. Be that as it may, the respondents have filed in Court today material to substantiate the plea of the area being water body with a copy handed over to the learned counsel for the Petitioners, as also notices. The result is that the controversy over receipt of notices is put to an end and these notices will be treated now as show cause notices.
4.The Petitioners to thus file their reply within fifteen days with material to establish that the area in question is not a water body covered under the provisions of the said Act. An enquiry would be held and thereafter appropriate orders passed by the competent authority within a maximum period of one month thereafter. Naturally, till the enquiry is not complete, no coercive process will be taken and in case the verdict is against the Petitioners, for a period of two weeks after communication of the order to the Petitioners.
These Petitions stand disposed of accordingly. No costs. Consequently, W.M.P.Nos.36433, 36435, 36437, 36439, 36441, 36443, 36445, 36447, 36461, 36463, 36465, 36467, 36469, 36471, 36473, 36475, 36477, 36479, 36315 to 36326 of 2016 are closed.
16.Pursuant to the aforestated direction of this Court, the 1st Respondent/District Collector, Kancheepuram had instructed Executive Engineer, Public Works Department (Water Resources), Kancheepuram to initiate appropriate action in the matter. As per the directions of this Court, the individual has not submitted their representation before the Executive Engineer, Public Works Department (Water Resources), Kancheepuram and the order had reached a finality.
17.This Court took up a suo motu W.P.No.28243 of 2017 based on the representation of the Varadharajapuram Village residents whereby a relief was sought for passing of an order by directing the Respondents to remove the encroachments of the obstructions in the water flow area of Varadharajapuram Village (part of Adayar River) and to implement the G.O.(4D) No.7, Public Works Department (T2), dated 17.10.2016 for widening as per Revenue records de-silting and standardization of the banks of the Adayar River and submit the report of compliance before this Court expeditiously.
18.In view of the issuance of directions by this Court in the aforestated suo motu W.P.No.28243 of 2017, the 1st Respondent/ District Collector, Kancheepuram had directed the Executive Engineer, Public Works Department (Water Resources), Kancheepuram to initiate appropriate action in the said matter along with the assistance of Tahsildar, Sriperumbadur Taluk. Also, in the aforesaid Writ Petition, this Court had directed the 1st Respondent/District Collector, Kancheepuram to file a report in regard to the number of encroachers who were identified and the steps taken for removal of encroachments. Based on the directions of the 1st Respondent/District Collector, the Executive Engineer (PWD) (WRO), Kancheepuram had reported as under:
In respect to the hindrance to the flood flow the following encroachments were identified and eviction of encroachments is proposed in Phased manner based on the critically of the encroachment and availability of alternative Slum Board tenements for resettlement, PHASE OF EVICTION TALUKS NUMBER OF ENCROACHMENTS First Phase Sriperumbudur, Varadarajapuram 186 Second Phase Tambaram 171 Third Phase Pallavaram 662 Total 1019 The critical encroachments numbering 133 in Adayar River at Durgas Road Bridge, Vandalur-Wallajabad Bridge and at Manimangalam Channel in Varadarajapuram was evicted so far. In the said work to widen the River Adayar and its Tributaries all encroachments in the form of Plots and Agricultural occupations to the tune of 54 Hectares were evicted.
19.In regard to the First Phase of Eviction of Encroachments in River Adayar, the crucial encroachments, according to the Respondents, in Varadharajapuram, Perunkalathur and Annakaputhur Villages of Kancheepuram District were identified and Form I, II & III were issued. In W.P.Nos.4379-4386 of 2016, 42519 42542 & 42436-42441/2016 & 1901/2017, this Court had passed the following order:
The Petitioner to thus file their reply with in fifteen days with material to establish the area in question is not a water body covered under the provision of the said act. An enquiry would be held and there after appropriate order passed by the competent authority within the maximum period month thereafter.
20.The W.P.No.4370-4378/2016(totally 9 cases) and W.P.No. 40273/2015 are pending with this Court on the same subject of encroachment eviction in River Adayar in Varadharajapuram Village, Sriperumbadur Taluk, Kancheepuram District. Pursuant to the direction of this Court dated 06.11.2017, the Assistant Engineer, Public Works Department (Water Resources), Kancheepuram made a public notice on 07.11.2017 stating that if anyone having any objections on encroachment eviction or having any proof that their land are not in the watercourse poramboke should produce the material evidence for the same before the Assistant Engineer, Public Works Department (Water Resources Organisation), Kancheepuram on 09.11.2017, failing which, it will be treated that there are no documents to prove their claim and the matter will be decided against them.
21.The first phase of encroachment eviction after due conduct of enquiry (as directed by this Court viz., order dated 08.12.2016) necessary orders were passed by the Assistant Engineer, Public Works Department (WRO), Kancheepuram on 10.11.2017 and 13.11.2017 for Varadharajapuram. As per direction of this Court, eviction was proposed to be carried out after giving 2 weeks time from the date of order of Assistant Engineer, Public Works Department (Water Resources Organisation), Kancheepuram i.e. on 10.11.2017 and 14.11.2017. After lapse of 14 days, being the time provided for compliance of order, the Petitioners have filed the present Writ Petition with a prayer as under:
to issue an Order, direction or writ more in the nature of Writ of Mandamus directing the respondents to reclassify and/or to redesign the Water Course/Bodies of Adayar River more particularly in S.Nos.306 at Varadarajapuram, Kancheepuram District on the report of the expert committee and pass other such suitable orders as this Honourable Court may deem fit and proper and thus justice be rendered.
22.The Learned Special Government Pleader pertinently points out that the Petitioners had already approached this Court with a similar relief in W.P.Nos.42519-42542/2016 (24 cases) and W.P.No. 42436-42441/2016 (6 cases) and exhausted their opportunity of being heard under the Tamil Nadu Water Tank Protection and Eviction Act, 2007 and the present order proceedings Lr.No.D1/ Adayar Encroachment dated 14.11.2017 is passed after duly following the instructions of the orders of this Court in the present Writ Petition only. Now, the Petitioner had approached this Court in the present Writ Petition and out of 25 Writ Petitioners, 23 persons were got allotment and further in the 23 persons also 22 were shifted their residence to the Tamil Nadu Slum Clearance Board tenements in Navalur Village. Those two persons whose residence is locked and whose plot is vacant had not secured allotment in the Tamil Nadu Slum Clearance Board. Further, the Petitioners should obtain stay from this Court also shifted their residence to the Tamil Nadu Slum Clearance Board and hence the stay order for eviction of the present Writ Petitioners should be vacated, since they had shifted to the Housing Board tenements in Navalur Village.
23.The Learned Special Government Pleader for the Respondents that the eviction process commenced on Varadharajapuram Village, Sriperumbudur Taluk, Kancheepuram and out of 214 encroachments, 188 encroachments were evicted from 27.11.2017 to 01.12.2017, leaving a balance of 26 encroachments which would not be evicted in view of the stay granted by this Court as detailed hereunder:
S.No. Name W.P.Nos.
Date upto which stay granted 1 Divine Educational Trust and Charitable Trust W.P.No.40723-2015 Status-quo 2 M.Kannagi W.P.No.30647/2017 Upto 21.12.2017 Stay Order 3 P.Ramu W.P.No.30648/2017 Upto 21.12.2017 Stay Order 4 S.Thenmozhi W.P.No.30651/2017 Upto 21.12.2017 Stay Order 5 N.Vijayan W.P.No.30652/2017 Upto 21.12.2017 Stay Order 6 A.Palani W.P.No.30653/2017 Upto 21.12.2017 Stay Order 7 Lakshmi W.P.No.30655/2017 Upto 21.12.2017 Stay Order 8 Karpagam W.P.No.30656/2017 Upto 21.12.2017 Stay Order 9 V.Kumaraguru W.P.No.30657/2017 Upto 21.12.2017 Stay Order 10 M.Dhanalakshmi W.P.No.30659/2017 Upto 21.12.2017 Stay Order 11 M.Nagarajan W.P.No.30661/2017 Upto 21.12.2017 Stay Order 12 Murthy S/o.Lingan W.P.No.31241/2017 Upto 05.12.2017 Stay Order 13 Stalin Dinagaran S/o.Arumainathan W.P.No.31244/2017 Upto 05.12.2017 Stay Order 14 Parameshwari W/o.Arulmozhi W.P.No.31245/2017 Upto 05.12.2017 Stay Order 15 Thamilarasan S/o.Ponniah W.P.No.31247/2017 Upto 05.12.2017 Stay Order 16 Parvathi W/o.Natesan W.P.No.31248/2017 Upto 05.12.2017 Stay Order 17 Gnanadurai S/o.Selvasing W.P.No.31252/2017 Upto 05.12.2017 Stay Order 18 Thangaraj S/o.Ramasamy W.P.No.31253/2017 Upto 05.12.2017 Stay Order 19 Vidhya W/o.Ramu W.P.No.31254/2017 Upto 05.12.2017 Stay Order 20 Marimuthu S/o.Thulukanam W.P.No.31257/2017 Upto 05.12.2017 Stay Order 21 Ramesh S/o.Perumal W.P.No.31258/2017 Upto 05.12.2017 Stay Order 22 Dhanalakhsmi W/o.Mogan W.P.No.31259/2017 Upto 05.12.2017 Stay Order 23 Thangavel S/o.Chinnasamy W.P.No.31260/2017 Upto 05.12.2017 Stay Order 24 Sekar S/o.Somu Devar W.P.No.31261/2017 Upto 05.12.2017 Stay Order 25 Vijayalakshmi W/o.Ravi W.P.No.31262/2017 Upto 05.12.2017 Stay Order 26 Ramkumar S/o.Subramani W.P.No.31263/2017 Upto 05.12.2017 Stay Order
24.On behalf of the 2nd Respondent/Tahsildar, Sriperumbudur Taluk, a Status Report is filed to the effect that out of 188 encroachers, 144 encroachers secured their allotment and shifted to Tamil Nadu Slum Clearance Board, Navalur Village and also the present Writ Petitioners obtained their allotment in Tamil Nadu Slum Clearance Board Navalur, but, they refused to move there and during the hearing on 04.01.2018, this Court directed for filing of Status Report in respect of alternative house to the Writ Petitioners and payment of allotment fees to the Tamil Nadu Slum Clearance Board for the said houses.
25.In short, the stand of the 2nd Respondent is that the Petitioners were allotted alternative houses in Tamil Nadu Slum Clearance Board, but, they are reluctant to occupy them on flimsy grounds and on the other hand, they had shifted their houses to rented places.
26.It is useful to refer to the list furnishing the details of the Writ Petitioners who occupied the houses allotted by the Tamil Nadu Slum Clearance Board till date (05.01.2018) and the same is as under:
S.No Eligibility List No. TNSCB Allotment No. Name of the Key holder Name of the Father/Husband Block and House No. 1 108/126 889 Moorthy Lingam 15/26 2 94/126 875 Jaya Brite Bakthiselvan 11/59 3 102/126 883 Suresh Nagappan 16/29 4 92/126 873 Arumainayagam Thangavel 19/12 5 105/126 886 Parameshwari Arulmozhi 16/31 6 90/126 871 Ganesan Kannan 11/58 7 87/126 868 Tamilarasan Pannaiyan 11/56 8 86/126 867 Parvathi Natesan 11/63 9 103/126 884 Elango Ramasamy 16/30 10 91/126 872 Gnanadurai Selvasingh 11/52 11 88/126 869 Thangaraj Ramasamy 15/04 12 89/126 870 Mariyappan Thangavel 11/36 13 111/126 892 Marimuthu Thulukanam 15/25 14 104/126 885 Ramesh Perumal 16/32 15 112/126 893 Mogan Kannan 11/55 16 113/126 894 Ravi Krishnan 16/28 17 106/126 887 Ramkumar Subramani 16/27 18 110/126 891 Sekar Meenakshi 15/08
27.Apart from that, the following is the list showing the details of Writ Petitioners, who had not obtained the houses allotted by the Tamil Nadu Slum Clearance Board till date 05.01.2018 and the same is as follows:
S.No Eligibility List No. TNSCB Allot ment No. Name Name of the Father/ Husband Block and House No. 1 40/126 821 Magesh Muthu
-2 20/126 801
Ramu Perumal
-3 19/126 800
Sekar Arasan
-4 39/126 820
Vijayan Natarajan
-5 18/126 799
Palani Appakannu
-6 29/126 810
Ramakrishnan Ramasamy
-7 34/126 815
Kumaraguru Vijayarangan
-8 25/126 806
Dhanalakshmi Mani
-9 36/126 817
Nagarajan Masilamani
-10 85/126 866
Ramu Rajendran
-11 100/126 881
Mumtaj Begum Abiyullah
-
28.The Learned Special Government Pleader for the Respondents points out that one Karpagam W/o.Arumugam and Divine Educational Trust and Charitable Trust had not obtained allotment from the Tamil Nadu Slum Clearance Board because of the reason that Karpagam's husband is a Government Servant as Conductor in Metropolitan Transport Corporation and in respect of the Educational Institution/Trust, it is not a residence and as such, the allotment was not made.
29.The pith and substance of the plea of the 2nd Respondent is that the allotment made to the Petitioners is entirely free of cost and even for the payment in respect of allotment fees, the 2nd Respondent/Tahsildar, Sriperumbudur Taluk had arranged from the 1st Respondent/District Collector's Discretionary fund.
30.In so far as the Writ Petitioners viz., Lakshmi W/o.Mani (WP.No.31249/2017), Kamala D/o.Gopal (WP.No.31255/2017), Thangavel S/o.Chinnasamy (W.P.No.31260/2017), Pushparani W/o.Arumugam (W.P.No.31641/2017) and Loganayagi W/o.Kumar (W.P.No.31265/2017) are concerned, out of 25 Writ Petitioners, the aforesaid five persons have not been allotted the alternate places. They have not been allotted the alternative places since they have not produced any documentary evidence to exhibit necessary proof that they are/were residing in the encroached land.
31.When the matter came up for hearing on 30.11.2017, the Learned Counsel for the Petitioners submitted that if an alternative accommodation is provided, they are willing to move out and that they may be permitted to stay in the place till an alternative accommodation is provided. Now, that alternative accommodations are provided to all the Petitioners except five who do not figure in the status report, as they did not receive notices and they had not produced any documentary evidence, this Court is not inclined to grant any relief. This Court also makes it very clear that the maintainability of the Writ Petitions itself are doubtful, in view of the decision of this Court reported in T.K.Shanmugam V. State of Tamil Nadu, 2015 (6) CTC 369 (FB). Since alternative places were provided, all the Petitioners barring five shall go to their respective place.
32.It is open to the Petitioners to approach the Authorities in regard to these five Petitioners with relevant documents and if they fulfil norms/conditions laid down by the Respondents, the request of those Petitioners may be considered. If they do not fulfil the condition, final action may be taken to provide a place of an alternative site.
33. Before parting with the case, this Court is of the view that the Government is taking effective steps to displace the encroachers and provide them alternative accommodation by allotment of houses by the Tamil Nadu Slum Clearance Board on the basis of Sale-cum-Hire purchase agreement. On the basis of the allotment, the allottees takes possession of the tenement and thereafter execute sale deed on payment of entire cost. When once those persons are given allotment of house either at nominal rate or at free of cost, it is seen that after certain number of years, those residents are trying to dispose of the property allotted to them and move to some other place. Moreover, this Court has come across several instances where the allottees had sold the properties to the third parties. As the place is meant for poor, they cannot sell it to third parties. The very purpose and object of the allotment itself is defeated, if sold within a short span of time and thereby the allottees occupy their original places. Hence, to put an end to this type of mala fide action/deviant conduct on their part, this Court earnestly suggests that the Tamil Nadu Slum Clearance Board shall take necessary steps in bringing out/incorporating a suitable pre-emptive clause in the agreement/allotment order itself, without transgressing/diluting the existing laws or the Transfer of Property Act, 1882. Further, in case, the occupants desire to sell the property, it shall only be sold to the Tamil Nadu Slum Clearance Board for valuable consideration which in turn will ensure that the tenements do not rent it out to third parties/strangers, as this Court, on the earlier occasions, had categorically opined that the allottees of the tenements shall not rent it out to third parties and in fact, those observations/clauses in the agreement itself shall ensure that those persons who do not dispose of the property to any third party and once again make an endeavour to encroach upon the Government land and to reside there. When a pre-emptive clause is inserted/incorporated in the Allotment Order or Agreement, then, the property can be sold to the Tamil Nadu Slum Clearance Board and the authorities can sell the property and give the property to the poor/needy persons, of course, based on the seniority maintained in this regard. This Court is of the earnest opinion that if proper amendment(s) is/are introduced in the necessary regulations governing the allotment/agreement with a view to curb illegalities and in any event, it shall be ensure that the proposed amendment/ amendments to be introduced shall not be repugnant to any of the provisions of the existing laws or the ingredients of the Transfer of Property Act, 1882 as the case may be.
34.Further, the Inspector General of Registration and Chief Secretary to Government must inform the Sub Registrar Office and other officers that dealt with the Respondents that no flat/plot belonging to the Slum Clearance Board that has been given to an individual cannot be sold to any third party and that the said building can be sold at a price/valuable consideration only to the Slum Clearance Board. The Slum Clearance Board alone has right to sell/give the property to a person of their choice of course, strictly based on the seniority maintained for the purpose of the allotment of the flat/plot/house by the Slum Clearance Board, without succumbing to any alien pressure/interference. The Respondents 1 to 3 and the Tamil Nadu Slum Clearance Board are directed to circulate the aforesaid observations/guidelines to the Petitioners for their knowledge, guidance and favour of necessary action, so that it will be an eye-opener to them in not endeavouring to sell the property to another person/stranger/an encroacher.
35.With the aforesaid observations, these Writ Petitions shall stand disposed of. No costs. Consequently, connected Miscellaneous Petitions are closed.
(M.V., J.) (S.V.N., J.)
06.02.2018
Speaking Order
Index :Yes / No
Internet :Yes / No
Sgl
To
1.The District Collector,
Kancheepuram District at
Kancheepuram.
2.The Tahsildar,
Sriperumpudur Taluk.
3.The Assistant Engineer,
Public Works Department,
WRD Irrigation Section,
Padappai, Sriperumpudur Taluk,
Kancheepuram District.
4.The Government Advocate,
High Court, Madras.
M.VENUGOPAL, J.
and
S.VAIDYANATHAN, J.
Sgl
W.P.Nos.31241 to 31265 of 2017
06.02.2018