Madras High Court
State Of Tamil Nadu vs Shanmugha Arts on 11 August, 2017
Author: Nooty.Ramamohana Rao
Bench: Nooty.Ramamohana Rao, S.M.Subramaniam
In the High Court of Judicature at Madras Reserved on : 04.8.2017 & Pronounced on : 11/8/2017 Coram : The Honourable Mr.Justice NOOTY.RAMAMOHANA RAO And The Honourable Mr.Justice S.M.SUBRAMANIAM Writ Appeal No.1451 of 2015 & MP.No.1 of 2015 1.State of Tamil Nadu, rep.by its Secretary to Government, Revenue Department, Fort.St. George, Chennai-9. 2.The Special Commissioner & Commissioner of Land Administration, Chepauk, Chennai-5. 3.The District Revenue Officer, Thanjavur. 4.The Revenue Divisional Officer, Thanjavur. 5.The Tahsildar, Thanjavur. 6.The State of Tamil Nadu, rep.by its Principal Secretary to Government, Home (Prisons) Department, Chennai-9. 7.The Additional Director General of Police/ Inspector General of Prisons, CMDA Tower-II, Egmore, Chennai-8. (Appellants 6 & 7 are impleaded vide CMP.No.2480 Of 2017 vide order dated 11.8.2017 by NRRJ & SMSJ) ...Appellants Vs 1.Shanmugha Arts, Science, Technology & Research Academy (SASTRA), Deemed to be University, having its main campus at 'Shanmugha Campus', Thirumalaisamudram, Thanjavur-613402. HQ at Madras, rep.by its Registrar Prof.R.Kandaswamy 2.VEE SEE BEE Trust administering Shanmugha Polytechnic, having its main campus at 'Shanmugha Campus' Thirumalaisamudram, Thanjavur- 613402, rep.by its Managing Trustee Prof.R.Sethuraman Respondents APPEAL under Clause 15 of the Letters Patent against the order dated 04.9.2014 made in WP.No.9037 of 2004 & WPMP.No. 10545 of 2004. For Appellants : Mr.K.Muthukumarasamy, AG for Mrs.Sri Jayanthi, GP For Respondents : Mr.G.Rajagopalan, SC for M/s.G.R.Associates & Mr.N.Venkataraman, SC JUDGMENT
NOOTY.RAMAMOHANA RAO,J This writ appeal is preferred by the State and its various officials against the orders passed by C.S.Karnan,J in W.P.No.9037 of 2004 and WPMP.No.10545 of 2004 on 04.9.2014 and on 18.12.2014.
2. The first respondent a deemed university and the second respondent, which manages it, have filed the writ petition. They impugned an order passed on 01.3.2004 by the second appellant the Special Commissioner and Commissioner of Land Administration, Government of Tamil Nadu, Chennai. It appears that the said writ petition has been decided by an order passed on 04.9.2014 initially. But however, it also appears from the record that paragraph 22 has been substituted by another order passed on 18.12.2014.
3. Since the learned Advocate General has raised a fundamental objection with regard to the method and manner, in which, the writ petition came to be decided and also the order came to be unilaterally altered more than three months after the first order, we have preferred to consider the entire matter on its merits instead of confining our scrutiny to the correctness or otherwise of exercise of jurisdiction by the learned Single Judge, since we are of the view that two separate orders would not have been passed normally by the Court without there being any application or occasion to deal with the case on the second occasion. Further, passing such orders without hearing all the parties concerned is not a right approach.
4. The controversy in the writ petition centers around the rights of the parties with regard and in reference to a particular parcel of land. The District Collector, Thanjavur appears to have sent proposals on 25.9.1985 to the Government for transfer of 23.54 hectares of land, which comes to 58.17 acres, situate in Thirumalaisamudram Village, Thajavur Taluk to the Jail Department for formation of 'open air jail'. The Government appears to have also sanctioned through their Government Order in G.O.Ms.No.214 Education Department dated 12.3.1985, a sum of Rs.11.77 lakhs as grant to the Vice Chancellor, Tamil University to meet the necessary expenditure for shifting an open air jail and for construction of the related infrastructural facilities therein.
5. A polytechnic college run and managed by the second respondent herein has been functioning in the lands adjacent to the proposed lands and therefore, they raised an objection for locating the open air jail adjoining the educational institutions, as the polytechnic admits girl students also. The management of the polytechnic college, it appears, started encroaching upon the lands set apart for the formation of open air jail and the Collector has immediately taken up the matter on 24.10.1985 with the Special Commissioner and Commissioner of Land Administration, Government of Tamil Nadu, to transfer the land in question to the Jail Department and permit the Jail Department to enter upon the land immediately, as otherwise, the machinery of the District Administration is not in a position to effectively prevent the encroachment.
6. On 03.12.1985, the Special Commissioner and Commissioner of Land Administration passed orders and enter upon permission is granted to the Prison Department as per Revenue Standing Order 23A(ii). The Special Commissioner and Commissioner of Land Administration has also noted in his communication dated 03.12.1985 that the cost of the proposed land for transfer has been reported as Rs.2,32,680/-. Obviously, the lands in question are not useful otherwise or fertile lands. However, the Prison Department has also not entered upon the land, it looks like and took no steps to protect the land.
7. The management of the college and others appeared to have filed writ petition in W.P.Nos.14718 to 14720 of 1988 objecting to the location of the open air jail and while entertaining those writ petitions, by way of interim order, a restraint order was granted by this Court on 02.12.1988. Consequently, the formation of open air jail has been stalled. The management of the college has taken up the issue with the Government so as not to establish the open air prison near an engineering college where both boys and girls are studying and in view of the likely law and order problem that might arise. The management also offered land of an extent of 70.56 acres belonging to it at Thatchankurichi village at Pudukottai District in lieu of the present lands. However, the Government passed orders through their G.O.Ms.No.1030 Home (Prisons IV) Department dated 25.7.1996 rejecting the representation as it lacks merit. It has also not accepted the offer of land of 70.56 acres as an exchange, as those lands are far away and that too, they are located in the neighboring Pudukottai District in the State.
8. The writ petitions instituted in W.P.Nos.14718 to 14720 of 1988 have come to be dismissed by this Court by a common order dated 13.7.1998. The matters were then carried in appeal by filing W.A.Nos.974 and 975 of 1998, which were also dismissed on 22.9.1998. In the meantime, the Tahsildar, Thanjavur, has drawn proceedings in terms of and in accordance with Section 6 of the Tamil Nadu Land Encroachment Act, 1905 (henceforth called the Act) and issued proceedings dated 24.5.1999.
9. Those proceedings came to be challenged in W.P.Nos.9287 to 9292 of 1999. While rejecting those writ petitions on 01.6.1999 and preserving liberty to the petitioners to pursue the statutory remedy of appeal available under the Act, this Court directed the possession of the petitioners not to be disturbed for a period of six weeks. It appears that the appeal preferred was rejected by the Revenue Divisional Officer and the revision preferred thereafter was also rejected by the District Revenue Officer, Thanjavur on 26.12.2000.
10. Against those orders, a further revision petition has been filed before the Special Commissioner and Commissioner of Land Administration, Chennai on 03.2.2001 under Section 10A of the Act. Entertaining the said revision petition, initially, the Special Commissioner passed an interlocutory order on 20.3.2001 granting stay. Now, by the impugned order in the writ petition dated 01.3.2004, the said revision petition was dismissed in brief terms, which read as under :
Thiru.R.Sethuraman, Managing Trustee, Bala Seva Educational and Charitable Trust administering Shanmuga College of Engineering and VEE SEE BEE Trust administering Shanmuga Polytechnic, Thirumalai Samudram, Thanjavur, has filed revision petition against the order of District Revenue Officer, Thanjavur in the reference first cited and requested for the granting of stay.
2. The request of the Trust was examined by this office and stay granted, in this office proceedings third cited stating that the stauts quo of the disputed lands be maintained in the disposal of the revision petition.
3. In the meantime, the Government, in their letter No.541, Revenue Department dated 19.12.2002, have ordered to evict the encroachment made by the Shanmuga Engineering College and Polytechnic in the disputed lands and also ordered to calculate the lease amount for the period from the date of encroachment to till the date of eviction of encroachment and collect the lease amount along with interest. Since the Government have issued final orders in the case, the stay granted in this office proceedings Roc.No.T2/6251/2001 dated 20.3.2001 is hereby vacated and revision petition is dismissed.
11. It is against this order, the writ petition was instituted and the learned Single Judge has set aside that order and hence, the State is in appeal before us.
12. Heard the learned Advocate General for the appellants and Sri.G.Rajagopalan, learned Senior Counsel as well as Mr.N.Venkatraman, learned Senior Counsel appearing for the respondents.
13. The learned Advocate General has pointed out that the management of the writ petitioner institution encroached upon nearly 20 acres of Government land and has also raised buildings thereon. It has also successfully frustrated the open air jail project coming up in the vicinity. The writ petitioners have nearly 60 acres of their own lands. Therefore, there is no justification for them to encroach upon the land belonging to the Government and raise constructions thereon. Dealing with the contention that several educational institutions have been conferred the benefit of either assignment of Government lands or alienation of Government lands, the learned Advocate General would point out that each case depends upon its own facts and circumstances and the reasons may be peculiar to each one. The State Government cannot be compelled to invariably part with its land either by way of assignment or by way of alienation in favour of an encroacher.
14. The learned Advocate General would further submit that the proposals made by the management of the writ petitioner college having received appropriate consideration at the hands of the Government and they having been rejected, there is no justification whatsoever for interfering with the issue at this stage by the Courts.
15. In reply, Sri.G.Rajagopalan, learned Senior Counsel and Sri.N. Venkatraman, learned Senior Counsel would draw our attention specifically to a proposal sent up by the Special Commissioner and Commissioner of Land Administration through his D.O.Lr.No.T2/4064/ 2000 dated 25.2.2002 to the Collector, Thanjavur District pointing out that the report of the Collector reveals that two educational institutions namely Periyar Maniammai College and Shanmuga Engineering College (the writ petitioner herein) have encroached the Government lands and that no tangible action has been taken by the District Administration either to remove the encroachments or to regulate the encroachments by way of lease/alienation. Therefore, the Collector was asked to take immediate action, inspect those lands and find out whether the encroached lands are very essential for running the educational institutions concerned and if so, to send a proposal for lease/alienation along with proper application and also the land valuation in full shape for securing the orders from appropriate authorities, as otherwise, the Collector was asked to remove the encroachments immediately.
16. In response thereto, the Collector submitted that he inspected and surveyed the land with the officials on 19.3.2002 and made available his survey statement therewith. Out of the total of 23.54 hectares of the land allotted to the Prison Department, the encroached area was 20.62 acres, in which, so many buildings were constructed as part of multi crore project. He also pointed out that against the order passed by the Tahsildar, Thanjavur under the Act, an appeal was preferred to the Revenue Divisional Officer and after the Revenue Divisional Officer rejected the appeal, a revision was filed before the District Revenue Officer. The District Revenue Officer also rejected the revision and against the orders of the District Revenue Officer, a further revision was preferred before the Special Commissioner and Commissioner of Land Administration. According to the Collector, the college has encroached upon 20.62 acres of Government poramboke land and built college buildings and the value is above Rs.5 crores.
17. Most importantly, the Collector concluded his report setting out that even if the buildings of the college are demolished, the land is no more useful for the Government and hence, suggested that if the institution gives any other land for exchange of the encroached land, they could consider the same or fix the rate for market value of the land encroached.
18. Based on the report of the Collector, the Special Commissioner and Commissioner of Land Administration took up the issue with the Government on 15.5.2002. The Special Commissioner also invited the attention of the Government to the proposals submitted earlier by him to the Government on 05.11.2001 proposing to collect double the market value from the college, as the lands were encroached by the institution for a long time without paying anything to the Government. The institution also constructed pucca buildings in the encroached lands and the Accountant General, in the audit objections, has been requesting the Government to finalize the assignment of the land and recover cost of the land to save further loss to the Government. The Special Commissioner also drew the attention of the Government to the Revenue Standing Order 15(2)(ii) and suggested to the Government to treat his earlier proposals sent on 05.11.2001 as proposals for alienation of the land under Standing Order 24.
19. It is in response to this proposal sent on 15.5.2002, the Government rejected the proposal by its communication dated 19.12.2002. The order dated 19.12.2002 reads as under :
Your attention is invited to the communications under reference.
2. It has been stated in the letter 2nd under reference that lands in S.No.148, Thirumalaisamudram Village, Thanjavur District and Taluk to the extent of 20.62 acres have been encroached by Shanmuga College of Engineering and it has been recommended that the same may be assigned on collection of double market value. The Government, after duly considering the recommendation, has decided to reject the recommendation to assign the lands to Shanmuga College of Engineering, as assigning lands to encroachers will set a bad precedent.
3. The Government orders that the encroachment made by Shanmuga College of Engineering and Polytechnic College on the lands belonging to the Prison Department may be removed and rent can be collected with interest from the date of encroachment to date of removal, treating the same as lease period.
4. You are required to take appropriate action as per the Governments decision in paragraphs 2 and 3 and send a report to the Government.
20. Sri.G.Rajagopalan, learned Senior Counsel and Sri.N. Venkatraman, learned Senior Counsel would point out that the State Government, through their orders in G.O.Ms.No.142 Revenue (Land 5(1)) Department dated 26.3.2003, passed orders for assignment of 65.26 acres of land subject to collection of single rate market value. The relevant passages from the said Government Order namely paragraphs 3, 4, 5, 6, 8, 9 and 10 read as under :
3. Periyar Maniammai Educational and Charitable Society has encroached poramboke lands of the Government. The society has requested to assign the 44.09 hectares (108.84 acres) of land which is under its encroachment.
4. While the application was under consideration, the Periyar Maniammai Educational and Charitable Society filed Writ Petition Nos.2604 of 1997 and 298 of 1997 seeking directions from the High Court. The High Court, in its order dated 27.3.2002, directed the Government to take action within a period of six weeks.
5. The District Collector of Thanjavur has reported that the request of the society for 44.09.0 hectare need not be considered and only 28.44.5 hectare (70.26 acres) alone need to be assigned and the rest of the land is to be used for public purposes.
Encroachment village (1) Survey No. (2) Type (3) Extent (hectares) (4) Vallam Vadakku Sethe 187/1 Tharisu 16.51.0 187/2 0.24.5 187/3 3.18.5 187/4 0.07.5 195/6 0.16.0 195/2 0.42.0 195/5 0.25.0 193/4 0.86.0 193/8 0.60.0 187/6 1.67.5 194/5 0.43.5 177/12 Forest 2.25.5 177/15 0.22.5 Pillaiyarpatti 115/A5 Quarry 0.55.5 Total 28.44.5 hectares Or 70.26 acres The Collector has also recommended that 28.44.5 hectare (70.26 acres) of land be assigned to Periyar Maniammai Educational and Charitable Society on collection of twice the market value and grant exemption from the Land Ceiling Act. On 21.3.2002, the single market value of the land was Rs.1,39,85,268/-.
6. The Special Commissioner and Land Administrative Commissioner accepted the recommendations of the Collector and recommended assignment of land on collection of twice the market value with all usual conditions under Revenue Board Standing Order 24.
...
8. The Revenue Divisional Officer (RDO), Thanjavur and Chief Educational Officer (CEO), Thanjavur were asked to inspect the lands and send a report to the Government. They inspected and submitted the report that Vallam Government Girls High School has been functioning temporarily in the Panchayat Union Primary School Buildings and therefore, the said land is required for the utility of the Girls' School. The District Collector reported that the land under question has been encroached by Periyar Maniammai Educational and Charitable Society and has been recommended for assignment by the Special Commissioner and Land Administrative Commissioner and hence, the request of the Parent Teacher Association cannot be entertained and 70.26 acres can be assigned to Periyar Maniammai Educational and Charitable Society.
The Government examined the request of the Parent Teacher Association of the Girls High School, the Periyar Maniammai Educational and Charitable Society and the recommendations of the District Collector and Special Commissioner and Land Administrative Commissioner and orders the following :
The sub-divided land of 2.02.4 hectare (5 acres) of Vallam Vadakkusethi Village (survey No. 177/12-5 acres) is to be transfered to Vallam Girls' High School. The transfer is done as per the standing instruction No.23A with usual conditions by not collecting land value etc. i. Subdivision charges like stone fixing etc., have to be collected from the respective Department.
ii. The exemption is granted under Land Ceiling Act.
iii. The entire lands must be used only for the purpose for which it is assigned and bound by the rules and regulations of the Government.
iv. The proposed land or a portion of it when not required has to be handed over to the Revenue Department.
9. The Government assigns the following lands in Vallam Vadakkusethi and Pillaiyarpatti villages of Thanjavur Taluk and Thanjavur District and Taluk to Periyar Maniammai Educational Charitable Society as per the Revenue Board Standing Order No.24, subject to the usual conditions.
Encroachment village Survey Type Extent (hectares) Vallam Vadakku Sethe 187/1 Tharisu 16.51.0 187/2 0.24.5 187/3 3.18.5 187/4 0.07.5 195/6 0.16.0 195/2 0.42.0 195/5 1.25.0 193/4 0.86.0 193/8 0.60.0 187/6 1.67.5 194/5 0.43.5 177/12 Forest 0.22.5 177/15 0.22.6 Pillaiyarpatti 115/A5 Quarry 0.55.5 Total 26.42.1 hectares Or 65.26 acres i. The single market value as on the date of transfer, subdivision charges, stone fixing charges, etc., have to be collected from the society.
ii. The exemption is granted under Land Ceiling Act.
iii. The society must use the entire lands only for the purpose for which it is assigned and bound by the rules and regulations of the Government.
iv. The proposed land or a portion of it when not required has to be handed over to the Revenue Department.
10. The Collector of Thanjavur and the Special Commissioner and Land Administrative Commissioner are requested to take further steps to implement this order.
21. Both learned Senior Counsel appearing for the respondents would submit that this is not the only instance where the State Government passed orders of this nature, but it has passed orders through their G.O.Ms.No.567 Revenue Department dated 20.6.1995 to alienate 119.16 acres of Government land occupied by Sri Ramachandra Medical College and Research Institute, Porur to be alienated to it under the terms and conditions of Revenue Standing Order 24 on collection of land value of Rs.465.29 lakhs as fixed by the Government. It is also urged that there are several such instances where the Government lands encroached upon or occupied were either assigned or alienated. It is also pointed out that through G.O.Ms.No. 112 dated 09.3.2001, 98.80 acres of land have been alienated to Vellore Engineering College on collection of land cost at the prevailing market price. Again, through G.O.Rt.No.208 dated 03.3.2007, the land of an extent of 7.44 acres in Thiruvanmiyur Village has been alienated to Sri Ramachandra Medical College and Research Institute on collection of Rs.6,01,320/- per ground with 9.5% interest per annum. Again, through G.O.Ms.No.8 dated 06.1.2010, the land of an extent of 40 acres has been once again assigned to Periyar Maniammai Educational and Charitable Society on collection of single rate of value.
22. According to both the learned Senior Counsel appearing for the respondents, the case of the writ petitioner Deemed University alone is dealt with distinctly and separately for irrelevant and unconnected reasons and grounds. They would urge that the case of the writ petitioner institution stands on the same footing as that of Periyar Maniammai Educational and Charitable Society, whose case also is covered by the proposals that have been sent by the Chief Commissioner of Land Administration on 25.2.2002. However, while rejecting the proposal in so far as the writ petitioner is concerned on the ground that it will set a bad precedent, the Government found no such difficulty for assigning the lands through their G.O.Ms.No.142 Revenue Department dated 26.3.2003 to Periyar Maniyammai Educational and Charitable Society and it was assigned 65 acres of land. It is also urged that for extraneous reasons and considerations, the writ petitioner institution is sought to be victimized and singled out. When, in respect of two educational institutions, proposals for assignment/alienation have been sent up by the Head of the Revenue Administration, namely the Special Commissioner and Commissioner of Land Administration, the case of the writ petitioner gets rejected on the ground that it sets a bad precedent. Then, the learned Senior Counsel would proceed to state that let the State Government follow the precedent set by them in the case of Periyar Maniyammai educational institutions.
23. Both the learned Senior Counsel appearing for the respondents would submit that the writ petitioner institution cannot be termed or treated as an encroacher, for, the then Honble Chief Minister of the State, upon hearing the representation of the writ petitioner, was kind enough to agree for dropping the proposal relating to construction of open air jail adjoining an educational institution where both boys and girls would be attending. They would also point out that the then Honble Minister of the Cabinet was also present at that meeting and the then Honble Chief Minister instructed the Honble Minister to inform the Inspector General of Prisons as well as the Collector of Thanjavur to take necessary corrective measures. In fact, the Honble Minister had sworn to an affidavit bringing out all these factual developments and the same was filed before the Revenue Divisional Officer. However, that has been brushed aside as an after thought.
24. The learned Advocate General, in reply, would point out that the affidavit of the then Hon'ble Minister cannot be looked into, for, firstly, there is no record to vouch for either the meeting with the then Hon'ble Chief Minister or the instructions issued by the then Hon'ble Chief Minister for dropping the proposal for construction of open air jail. The learned Advocate General would submit that in the absence of any record to vouch for the said fact, it will not be safe to rely upon the unsubstantiated statements of fact asserted to by an Hon'ble Minister in an affidavit. Secondly, such an assertion was not made before the Tahsildar, but was made for the first time in appeal before the Revenue Divisional Officer.
25. We consider that the said submission of the learned Advocate General is not without any merit. It may not be really safe to place reliance upon the contents of an affidavit even though such an affidavit may have been furnished by an impartial and uninterested individual, who had come to occupy a responsible position as Cabinet Minister in the State Government. It will also not be safe to rely upon in any matters relating to alienation of the Government lands, when there is no record for the decisions said to have been taken at the level of the Chief Minister.
26. The learned Advocate General is also right in his submission that the respondent institution has been rightly proceeded against under the provisions of the Act, for the fact remains that they occupied and constructed pucca buildings of college and hostels, etc., on lands not belonging to them, but belonging to the Government. But however, the fact also remains that under Section 10A of the Act, the remedy to prefer a revision is provided against any decision or order passed under the Act either suo motu or on an application -
(a) by the District Collector, if such decision or order was passed by the Deputy Tahsildar or Collector;
(b) by the Commissioner of Land Administration, if such decision or order was made by any officer other than the Appellate Authority; and
(c) by the State Government, if such decision or order was passed by the Appellate Authority or the Commissioner of Land Administration.
27. By virtue of this provision contained in Section 10A(1)(b) of the Act, a revision would lie to the Commissioner of Land Administration on the decision or order passed by any officer other than the Appellate Authority. District Revenue Officer is not the Appellate Authority.
28. In the instant case, that is the precise reason as to why the Special Commissioner and Commissioner of Land Administration has entertained the revision preferred by the respondent institution on 08.2.2001 and also granted an interim order on 20.3.2001. But however, the said revision has been disposed of by the impugned order dated 01.3.2004, which we have extracted in one of the preceding paragraphs.
29. Therefore, the Special Commissioner and Commissioner of Land Administration has been exercising quasi judicial power available to him under Section 10A of the Act. However, he rejected the revision only for the reason that the Government has issued final orders on 19.12.2002 rejecting the proposals submitted earlier for assigning the lands to the writ petitioner institution. That is hardly a satisfactory way of deciding a dispute of the nature raised in the writ petition. The Special Commissioner and Commissioner of Land Administration is required to independently apply his mind to the merits of the matter as canvassed by the writ petitioner in the revision and he is supposed to deal with the same in as objective manner as is possible and arrive at a conclusion. He called for a report from the Collector, Thanjavur, who felt that it would be appropriate to assign/alienate the lands to the institution, as it has built pucca buildings thereon. The Collector also felt that the lands would be useless, even if those buildings, which are worth few crores of rupees are demolished. The Collector recommended to collect double the market rate from the institution. He also valued the lands at Rs.5 Crores. That report was endorsed for acceptance by the Special Commissioner and Commissioner of Land Administration, when he took up the issue with the Government. Hence, he cannot regulate his quasi judicial power only on the premise that the Government has already rejected the proposals submitted by him earlier for alienation of the land in favour of the writ petitioner institution. Therefore, for want of proper application of mind disclosing the true, correct and relevant reasons, which alone can help independently in arriving at a conclusion in a quasi judicial lis, by the Special Commissioner of Land Administration, the impugned order in the writ petition dated 01.3.2004 is not sustainable and it has to be set aside.
30. But however, the problem does not rest there. The Government has been adopting, it appears, different standards for different applicants in the matter of assignment/alienation of land. They adopted one standard in case of Sri Ramachandra Medical College and Research Institute and another standard in the case of Periyar Maniammai Educational and Charitable Society and yet another standard in the case of Vellore Engineering College. An altogether opposite stance in the case of the writ petitioner institution on the ground that it will set bad precedent. Can one reasonably subscribe to the notion that if lands get assigned to the writ petitioner institution, it would be bad and if lands are to be assigned to other institutions it would not be bad. What distinguishing features make the case of the writ petitioner institution 'bad' and what are those special features present in the case of the other educational institutions, which made it appear 'good' for the Government. This and other relevant distinguishing features are conspicuous by their absence on record.
31. It is also really interesting to note that the proposals emanated from the same Collector of Thanjavur District with regard to the writ petitioner institution as well as Periyar Maniammai Educational and Charitable Society in respect of alienation of lands encroached upon by them. While dealing with the case of the writ petitioner institution, the proposals have been shot down on 19.12.2002 as that it will be setting a bad precedent and when it came to Periyar Maniammai Educational and Charitable Trust, in less than three months thereafter, the Government found no such moral or ethical compulsion when it passed orders in G.O.Ms.No.142 to alienate the land of an extent of 65.26 acres of land in favour of Periyar Maniyammai Educational and Charitable Society by collecting single rate of the value whereas the proposal made in respect of the writ petitioner institution was that the land cost was approximately Rs.5 crores and that therefore, double the amount should be collected from the writ petitioner institution. Can one say collection of money at double the market value for the mistake of encroaching upon Government lands is a bad idea!
32. While the Government enjoys certain amount of freedom in the matter of alienation of the land available to it, but at the same time, different sets of standards cannot be adopted for similarly situated applicants. If there are any special or peculiar circumstances available, discretionary power can be exercised. When it came to Sri Ramachandra Medical College and Research Institute, most valuable lands lying in a suburb close to the City of Madras have been allowed to be alienated because a Medical College has occupied the Government land and constructed buildings thereon and when it came to Vellore Engineering College, the same consideration was shown. Further, when it came to Periyar Maniyammai Educational and Charitable Trust, again the same consideration was shown. But, when the writ petitioner is also an educational institution and though it has committed a grave error in encroaching upon the land of the Government and constructed pucca buildings thereon, a completely different yardstick is deployed for treating its claim. That is not fair or reasonable. When the Government is required to treat all claims, which are similar in nature, content and context, they should judge by one single common standard or yardstick, but different yardsticks cannot be devised from time to time. The Government cannot leave an impression that it can pick and choose the beneficiaries in such matters.
33. In these circumstances, we are of the opinion that while setting aside the order dated 01.3.2004 passed by the Special Commissioner and Commissioner of Land Administration, we direct the revision petition filed on behalf of the writ petitioner institution dated 03/08.2.2001 to be made over to the Government for its consideration. Let the Government take into account the various Government Orders passed by it earlier, referred to supra, in respect of Sri Ramachandra Medical College and Research Institute, Periyar Maniyammai Educational and Charitable Society, Vellore Engineering College, etc., and take an appropriate decision with regard to the case and claim of the writ petitioner institution. But however, the Government will take up for consideration of any such claim provided the writ petitioner institution remits a sum of Rs.10,00,00,000/- (Rupees ten crores only) (double the valuation of Rs.5 crores suggested by the Collector, Thanjavur/Chief Commissioner of Land Administration) to the Government, within 30 days from the date of receipt of this order.
34. With the above directions, the writ appeal stands disposed of. No costs. Consequently, the connected MP is closed.
(N.R.R.J.) (S.M.S.J.) 11/8/2017 Office to Note :
Carry out necessary amendment before issuing order copies Speaking (or) Non Speaking Order Index : Yes (or) No Internet : Yes (or) No RS NOOTY.RAMAMOHANA RAO,J AND S.M.SUBRAMANIAM,J RS P.D.JUDGMENT IN WA.No.1451 of 2015 and MP.No.1 of 2015 11/8/2017 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 11.08.2017 Date of Reserving the Judgment Date of Pronouncing the Judgment 04.08.2017 11.08.2017 CORAM THE HONOURABLE MR.JUSTICE NOOTY.RAMAMOHANA RAO and THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM W.A.No.1451 of 2015 & MP No.1 of 2015
1.State of Tamil Nadu, rep. By its Secretary to Government Revenue Department, Fort St.George Channnai 600 009.
2.The Special Commissioner and Commissioner of Land Administration, Chepauk, Chennai 600 005.
3.The District Revenue Officer, Thanjavur.
4.The Revenue Divisional Officer, Thanjavur.
5.The Tahsildar, Thanjavur.
6.The State of Tamil Nadu, rep. By its Principal Secretary to Government Home (Prisons) Department, Chennai 600 009.
7.The Additional Director General of Police/ Inspector General of Prisons, CMDA Tower-II, Egmore, Chennai 600 008.
(Appellants 6 & 7 are impleaded as per order in CMP No.2480/17 vide order dated 11.8.2017) ..Appellants
-vs-
1.Shanmugha Arts, Science, Technology & Research Academy (SASTRA) Deemed to be University, having its main campus at 'Shanmugha Campus' Thirumalaisamudram Thanjavur 613 402,HQ at Madras rep. By its Registrar Prof.R.Kandaswamy
2.VEE SEE BEE Trust administering Shanmugha Polytechnic, having its main campus at 'Shanmugha Campus' Thirumalaisamudram Thanjavur 613 402,HQ at Madras rep. By its Managing Trustee, Prof.R.Sethuraman .. Respondents Writ Appeal filed under clause 15 of the Letters Patent against the order dated 04.09.2014 made in W.P.No.9037 of 2004 & WPMP No. 10545 of 2004.
For Appellants : Mr.K.Muthukumarasamy, Advocate General asstd, by Mrs.Sri Jayanthi, G.P., For Respondents : Mr.G.Rajagopalan, Sr.Counsel for M/s G.R.Associates & Mr.N.Venkataraman, Sr.Counsel *********** J U D G E M E N T S.M.SUBRAMANIAM, J.
I respectfully disagree with the Judgment of my esteemed learned Brother Justice Nooty Ramamohana Rao, and I am proceeding with my separate Judgment.
2.This Writ Appeal under Clause 15 of Letters Patent, is preferred against the order dated 4th September, 2014, passed in W.P.No.9037 of 2004.
3.POINTS OF DIFFERENCE (I)The respondents/writ petitioners are the encroachers of the Government poramboke land to the extent of 58.17 acres in the outskirts of Thanjavur. During the first round of litigation, the respondents/writ petitioners had filed Writ Petitions and thereafter Writ Appeal and lost the ground to proceed further. The respondents/writ petitioners had also exhausted the remedies available under the provisions of Tamil Nadu Land Encroachment Act, 1905. Under these circumstances, whether this Court can entertain the writ petition filed by the respondents/writ petitioners, when all the remedies available were already exhausted and second time, the respondents/writ petitioners have approached the authorities under the said Act, once again in order to create fresh cause of action, filed the present Writ Petition on that basis.
(i)When there is no provision for second round of Appeals provided under the Act, whether the Writ Petition in this regard can be entertained or not ?
(II)The respondents/writ petitioners all along stating that the benefit of assignment by the State was extended to other encroachers, more specifically, few Institutions including Periyar Maniammai College and when the benefit of alienation was extended by the State to other Institutions, discriminating the respondents/writ petitioners-Institutions, is violative of Articles 14 & 16 of the constitution of India or not ?
(i)Whether this Court can accept such a proposition mooted out by the respondents/writ petitioners in respect of encroachment of Government lands ?
(ii)Whether certain instances of wrong precedents created by the State can be cited for the continuance of the same wrong doing in perpetuity by the State ?
(III)The right of property enshrined under Article 300-A of the Constitution of India is to be extended to the State/Union also. State being a person cannot be deprived of the right of property and any intruder is certainly liable to be prosecuted under the provisions of law.
(i)Under these circumstances, whether it is right on the part of the Courts to issue directions to assign/alienate the Government Land in favour of an encroacher ?
(IV)The duties and the responsibilities of the public officials to protect the Public/porambokke Government lands is also a mandate and any failure/lapses on the part of the Public Authorities are to be viewed seriously and action against those officials are certainly warranted.
(i) Whether it is warranted to institute appropriate legal action to initiate appropriate legal action, both under Penal Laws as well as under the Discipline & Appeal Rules, against all Public Officials colluded and connived and paved way to sustain the encroachment of the respondents/writ petitioners.
(V)The respondents/writ petitioners being Commercial Educational Institutions, extending the benefit of alienation/ assignment, cannot be considered even by the State by compromising the interest of the public in general, in view of the fact that the lands belong to 'WE THE PEOPLE OF INDIA'
(i) Whether the State for the private enrichment of a commercial institution part with any portion of the valuable Government land by compromising the public interest ?
(VI)By directing the respondents/writ petitioners to deposit a sum of Rs.10 crores (Rupees Ten Crores only) with the Government, whether the State can alienate the public/ Government lands or consider the case of the respondents/writ petitioners for this purpose when the encroachment itself is an offence under law ?
(VI)When the State/Union are evicting the poor/weaker roadside dwellers and other encroachers living in huts and thatched houses in the Government porambokke lands, the respondents/writ petitioners have encroached the Government land to a large extent of 58.17 acres in a systematic and calculative manner and have adopted all illegal means to sustain and continue the encroachment.
(i)Under these circumstances, whether any leniency can be shown in favour of the respondents/writ petitioners.
4. ENCROACHMENT AS AN ISSUE:-
(1) The Black's Law Dictionary defines encroachment as an infringement of another's rights; an interference with or intrusion onto another's property. The word 'Encroach' is defined as to enter by gradual steps or stealth into the possessions or rights of another; to trespass or intrude; to gain or intrude unlawfully onto another's lands, property or authority. Thus, it is unambiguous that encroachment is an offence. Encroachment amounts to a criminal trespass into the property belongs to another.
(2)The definition of encroachment is also defined in Section 2(1)(c) of the Tamil Nadu Land Encroachment Act, 1905 (Act III of 1905). Encroachment means, unauthorised occupation of land and public land by way of putting temporary, or permanent structure for residential or commercial use or any other use.
(3) The encroachment process gradually gains momentum from the following factors:-
(i) Lack of periodical monitoring;
(ii) Weakening of Social bondage;
(iii) People's justification of their position by citing wrong examples;
(iv) Delayed realisation of the ill-effects caused by encroachments;
(v) Negligence of Government functionaries and lack of timely action. However, it is pertinent to note the fact that the basis of the alarming rise of encroachments is the greed, selfishness, and jealousy of people.
(4) Section 441 of the Indian Penal Code states; whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or, having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit 'criminal trespass'. The term 'criminal trespass' has been defined in Black's Law Dictionary as a person who enters on the property of another without any right, lawful authority or an express or implied invitation or licence. But when trespass is committed with a criminal intention, it is treated as an offence and is made punishable under the Indian Penal Code. A punishment is that whoever commits criminal trespass shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.
(5) The land encroachment is a social evil. Encroachment is a passive form of land grab movement, which mirrors man's innate greed for land and his natural tendency towards aggrandizement of wealth in any form. Encroachment of Government property is a loss not only for the Government but also the public, as huge amount of money would be spent again to acquire new property.
(6)The Government lands are for the welfare of the public in general and to create common infrastructure for the usage and benefit of, we the people of India. Thus, the matter of encroachment of Government land cannot be treated ordinarily and it should be treated as a grave offence against, the State.
(7)Article 300-A of the Constitution of India deals with persons not to be deprived of property save by authority of law. No person shall be deprived of his property save by authority of law. Thus, the State being a person, cannot be deprived of its right of property and any intruder is liable to be prosecuted under the provisions of the Land Encroachment Act as well as under the Penal Law. Thus, this Court is of the opinion that the rights conferred to a person under Article 300-A of the Constitution of India, is certainly available to the State and the State has got every right to initiate appropriate legal action against the encroachers.
(8)The preamble of the Constitution 'WE THE PEOPLE OF INDIA', is the heart and soul of the Constitution. Article 12 of the Constitution provides definition for the State. Accordingly, 'the State' includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. Thus, State is a person and therefore, all public lands belong to the State and we the people of India are the owners of the land. Thus, the right of property provided under Article 300-A is to be extended to the State as a person. In other words, the property belongs to the State is also protected under Article 300-A of the Constitution of India. Thus, any encroacher of a public/Government land is certainly depriving the right of property of the State to possess the same under Article 300-A of the Constitution of India. Therefore, the question of de-linking such encroachers otherwise will not arise at all. Question of extending the equality clause or the discrimination clause will not arise at all to the encroacher as an offender and an offender citing the offence committed by one offender, another one cannot claim that he should also be exonerated from the offence. Such a dangerous proposition, cannot be adopted at any circumstances and in the event of connivance with the officials in this regard also to be viewed very seriously.
(9)This Court wishes to ask a question whether any citizen of this country will allow another citizen to encroach the property owned by him. Litigations in lakhs and lakhs are pending before various Courts in our Great Nation only to establish the rights of such citizen in respect of their property. Such being the law of this country, how a State land can be allowed to be encroached by another citizen and such offences are dealt in a casual manner by the officials. Due to the constant increase of market value of the immovable property in this Great Nation, the public officials are also contributing for the dilution of the implementation of various laws in this regard, more specifically, while dealing with the Government lands. Such actions deserve to be condemned and such officials are to be dealt with iron-heart and no leniency can be shown to such public officials.
5(i) Thiru.Muthukumaraswamy, learned Advocate General appearing on behalf of the Writ Appellants contended that there is no dispute with regard to the encroachment made by the respondents-Institutions. The total extent of encroachment is about 58.17 acres and the land was already handed over to the Prison Department for establishing 'Open Air Jail'. Further, all transfer proceedings were completed and thereafter, the respondents filed W.P.Nos.14178 and 14179 of 1988. Both the Writ Petitions were dismissed on 13.07.1998 and the Writ Appeal Nos. 974 and 975 of 1998 filed by the respondents questioning the order passed in the Writ Petitions were also dismissed on 22.09.1998.
(ii) Though the respondents repeatedly claiming the assignment of land on the ground that the then Hon'ble Chief Minister of Tamil Nadu acceded to the personal request of the Trustees and directed possession to be given to the College and the Electricity Minister Panruti S.Ramachandran, was also present in the said meeting, the respondents herein nowhere in their earlier proceedings has taken this ground. Therefore, such a pleading made in the Writ Petition is after thought and oral promises alleged to have been given by the then Hon'ble Chief Minister, which is not reduced in writing cannot be considered in this Writ Appeal. Even assuming that such an oral promise was given by the then Hon'ble Chief Minister in the year 1985, certainly, the said promise would have been implemented by the Revenue Officials. A word from the Hon'ble Chief Minister will certainly be carried out and implemented by the officials concerned, but, no such thing happened in the case of the respondents herein. Even in earlier writ proceedings, the aforesaid plea had not been taken by the respondents and therefore, now they cannot come out with such an inadmissible contention.
(iii) The learned Advocate General further contended that the respondents are the owners of 60 acres of adjacent land and the entire 60 acres of land are left open for their future developments and usage, intentionally and knowingly that they have encroached the Government land and the respondents had developed construction only in the Government land. In fact is a designed annexation made by the respondents in order to grab the Government land. The intention as well as the manner in which the land measuring 58.17 acres were encroached is unambiguous that the respondents have no respect towards the law.
(iv) The offer made by the respondents with respect to their 70 acres of land in lieu of the encroached land was rejected by the Government in the year 1996 itself in G.O.Ms.No.1030. Initially, the respondents had encroached 20 acres of Government land and subsequently, they have extended the encroachment upto 58.17 acres. Thus, for all these reasons, the respondents are offenders and the actions taken by the State under the provisions of the Land Encroachment Act, 1905 is correct and there is no infirmity in the order. The learned single Judge, without considering all these factors have allowed the Writ Petition, contrary to the provisions of the Act and against the legal principles settled by the Hon'ble Supreme Court in the matter of encroachment.
6(i) Mr.G.Rajagopalan and Mr.N.Venkataraman, learned Senior Counsels appearing on behalf of the respondents-Institutions contended that on 09.05.1985, the then Hon'ble Chief Minister of Tamil Nadu acceded to the personal request of the Trustees and directed possession to be given to the College through the then Electricity Minister Panruti S.Ramachandran, who was present at the meeting. An affidavit dated 10.06.1999 was also filed by Thiru Panruti S.Ramachandran, before the Appellate Authority, under the Tamil Nadu Land Encroachment Act, 1905, confirming the fact that the said decision was provided to the District Collector, Thanjavur in order to convey the lands in favour of the respondents-Trust. On 7.05.1985, the DGP, prisons wrote a letter to the then District Collector, informing the objections of the Trust in having an Open Air Prison in the midst of the Educational Institution. Further, the learned Senior Counsels, urged before this Court that in similar circumstances, the benefit of alienation was granted to various other institutions including Sri Ramachandra Medical College and Research Institute, Periyar Maniyammai College, etc.
(ii) On 24.10.1985, the District Collector, Thanjavur wrote a letter to the Special Commissioner and Commissioner of land Administration, stating that the respondents are encroaching upon the lands set apart for the formation of the Open Air Jail.... On 03.07.1991, the Tahsildar, directed the Village Officials to be present for inspection of the lands to be assigned to the college on 11.07.1991, when the inspection happened. Such correspondences are exchanged between the authorities and therefore, the respondents cannot be treated as encroachers. The respondents are in occupation of the land only by virtue of the oral promise granted by Thiru (late) M.G.Ramachandran, the then Hon'ble Chief Minister.
(iii) In this regard, the Tahsildar sent a notice under sections 6 & 7 of the Land Encroachment Act, 1905 to the respondents in respect of the alleged encroached land in proceedings dated 30.04.1999. The respondents submitted representation to the Hon'ble Chief Minister seeking assignment of the land at free of cost on 04.12.1999. Through the letter dated 13.03.2000, the Commissioner of Land Administration in his letter No.B2/58649/99, stated that it is not possible to consider the request of the said engineering college assignment without cost and on 08.08.2000, the respondents wrote a letter to the Commissioner for Land Administration requesting for assignment of land on payment of cost. On 25.02.2002, the Special Commissioner and Commissioner for Revenue Administration, addressed a letter to the District Collector, Thanjavur, stating that two Educational Institutions Periyar Maniammai College and Shanmugha Arts, Science, Technology and Research Academy, have encroached the valuable Government Land and to take immediate action and inspect whether the lands occupied are essential for running the colleges and if so to send proposals for lease along with the land valuation after securing orders from the appropriate authorities.
(iv) In May, 2002, the Commissioner of Land Administration made another recommendation to the District Collector, Thanjavur, that no useful purpose would be served in the event of demolishing the building of the College situated in the Government land. However, by an order dated 19.12.2002, the Secretary to Government, sent a letter to the Commissioner of Land Administration stating that the Government after duly considering recommendation, has decided to reject the recommendation to assign the lands to the respondents-Institutions, as Assigning lands to encroachers will set a bad precedent and further directed to remove the respondents from the lands belonging to the Prison Department after collection of rent with interest.
(v) All these letters are exchanged between the authorities mainly at the instance of the respondents and at no point of time, the assignment was granted by the Government in favour of the respondents. Though the respondents are able to provide information that similar kind of alienation were granted in favour of other institutions, the same cannot be considered as a Rule or precedent.
(vi) The learned Senior Counsel further states that the admission process of SASTRA is merit-based and transparent and has won the confidence and appreciation from all stakeholders. The University does not college a single rupee as capitation fees or donation and provides various benefits and assistance to the students. 10% of seats are reserved each for students from Trichy and Thanjavur. Further, the Tution fees of SASTRA is the lowest amongst comparable peer institutions in the country. SASTRA student Welfare Fund takes care of student's entire tution fees in the unfortunate event of the student losing his bread winning parent and also giving annual average of Rs.30 lakhs as scholarships to the students.
(vii) The learned Senior Counsel narrated number of scholarships and charities done by the respondents in various respects. However, those pleadings are irrelevant in respect of the legal principles to be considered in the matter of encroachment. The good things done by the respondents are certainly appreciable and this Court has no say on that. Further, this Court appreciate the public services done by the respondents in good faith with all good intention. However, those services done by the respondents cannot have an avail to save their wrong doings, which is an offence under law.
(viii) At the outset, the learned Senior Counsel appearing for the respondents contended that the respondents are not encroachers and they have obtained oral permission given by the then Hon'ble Chief Minister and the respondent -Institution is a world-class institution and serving for the interest of the public and contributed for the growth of education in this Country. Thus, the Government should be directed to assign the land in favour of the respondents.
(ix) However, the learned counsel appearing for the respondent never disputed the title of the Government in respect of the land encroached. Further, all along in the correspondences cited supra, the respondents are repeatedly requesting the Government to alienate/assign the land in their favour. Further, the request is made to receive the alternate land in lieu of the land encroached by the respondents. Thus, this Court is of the clear view that the respondents are encroachers and they have encroached the Government land measuring 58.17 acres in total and thus, the action initiated by the Government under the provisions of the Tamil Nadu Land Encroachment Act, 1905, is in order and there is no infirmity.
7.The Writ Petitioner filed the Writ Petition, challenging the proceedings of the Special Commissioner and Commissioner of Land Administration, dated 01.03.2004, and seeking further direction to assign the lands situated in Survey Nos. 124, 141, 148 at Tirumalai Sumudran Village, Thanjavur District, measuring about 58.17 acres. The Writ Petition was allowed in favour of the writ petitioner in following terms:
21.From the above discussions, this Court is of the view that:-
(i)The petitioners have occupied the said land to an extent of 20 acres and raised superstructure over the said property in which the College is functioning including the ladies Hostel for college students. For constructing the said building, the authority of the Government had granted a building plan and as such, it is evident that the petitioners are in physical position from the year 1985 onwards without any interference from the respondents.
(ii)The petitioners College and polytechnic are reputed and prestigious institutions and the petitioner's Engineering College has also been recognized as a deemed university and established in name and fame at National level. Until now, the College has turned out 20,000 successful engineering graduates and 90% of them were selected through campus interview. It clearly shows that the petitioners' educational institutions have reached paramount importance for developing high caliber engineers for the future in the rural area.
(iii)On 09.05.1985, the petitioners College representative met the then Hon'ble Chief Minister of Tamil Nadu, the late Dr.M.G.R. And deeply requested to allow the Government land situated in Survey No.124, 141, 148, Thirumalai Samudram Village, Thanjavur District to the first petitioner herein, to an extent of 57.19.acres and at that point of time, the then Hon'ble Minister of the State Thiru. Panruti S.Ramachandran was present. After considering the deep request of the petitioner and the then Hon'ble Chief Minister of Tamil Nadu had instructed the concerned officials to observe educational trust for future expansion plan. In order to confirm the same, the Hon'ble Minister Thiru Panruti S.Ramachandran has filed an affidavit before the second respondent herein, viz., the Special Commissioner and Commissioner of Land Administration, Chennai-5, wherein the revision case is pending. The affidavit and is contends have not been controverted or disputed by the respondents. Therefore, the Minister's affidavit which was sworn in his name has to be considered as more than a written order. However, on the strength of oral order given by the then Chief Minister of Tamil Nadu, the petitioners occupied the said land and raised several buildings over the land for establishing the College. This nature of occupation by the petitioners can be treated as permissible possession as it is equivalent to lawful position. Therefore, the eviction proceedings initiated by the respondents herein under the Land Encroachment Act is not maintainable considering the facts of the case and as such, the impugned orders passed by the second respondent is not fit to be proceeded with any further.
(iv)The respondents had allotted the lands for an extent of 96.68 acres under G.O.Ms.No.1, Revenue Department, dated 04.01.2010 to and in favour of South Indian Film Employees' Sammelanam and Tamil Film Producers Sangam. In the instant case, the petitioners' Institution Rules higher in importance due to its higher educational values when compared to cine field and entertaining Section of the society. Therefore, the petitioners-Institutions are entitled to receive similar land assignment order and no discrimination has to be observed against them whatsoever.
(v)Likewise, the respondents herein have also assigned lands to an extent of 98.80 acres to and in favour of Vellore Engineering College run by the North Arcot Educational and Charitable Trust under G.O.Ms.No.112, dated 09.03.2001. As such, the petitioners' educational institutions also have to be treated equally by way of allotting the said land required by concerned writ petitioners.
(vi)The respondents also assigned Government lands to an extent ot 40 acres to an in favour of the Periyar Maniammal Educational and Charitable Trust under G.O.Ms.No.8, dated 06.01.2010 of the Revenue Department. As such, the respondents are ethically responsible to allow the Government lands as required by the writ petitioners at minimum cost as per the Government value for the relevant period for the year 1984.
(vii)The land value is much less in comparison, with the cost of super structure buildings raised on the land. As such, the Government should show the maximum concession in such a deserving case as the Institution is the prestigious Institution besides being a boon to Society and hence, it should not be disturbed since it figures in the category of public institutions.
(viii)It is also seen that even the Collector and the Commissioner for Land Administration have recommended the assignment of land on collection of market value to the Revenue Department.
(ix)This Court is of the further view that the Taluk Tahsildar, Tahanjavur had conducted a spot inspection and enquiry on 24.02.2012, and he collected statements from the Village Administrative Officer and local Public, who have attested in their statements that they have no objections to transfer the said Government land to the petitioners' Educational Institutions. As a matter of fact the State of Tamil Nadu in particular and the whole of India in general can look up with pride at the establishment of a highly reputed and esteemed engineering university and polytechnic, that has gained deemed status in a short period of time. This Court also holds that He who opens the doors of an educational institution closes the doors of a prison. and hence, the running of the institution should not be hampered with in any way.
8.Challenging the same, the appellant-State of Tamil Nadu, preferred the present Writ Appeal. Upon several grounds, it is mainly contended that the Government at no point of time, granted any permission in favour of the respondent-Institution to enter upon the Government porambokke lands and to construct any building or at least for enjoyment. None of the Government Authorities nor the Government have extended any such benefit of occupation in favour of the respondent-Institution. Further, the land in encroachment about 58.17 acres are worth about more than Rs.50 cores, during the relevant point of time and the respondent-Institution have encroached the said land and are in unauthorised occupation and running a private Self Financing Commercial Institution. The Government contended that the encroachment is causing continuous revenue loss to the Public Exchequer and Audit Department also raising objections, periodically. The request of the respondent-Institution for assigning the encroached lands in their favour was duly negatived by the Government and the proposal of the respondent-Institution to alienate alternate site was also not accepted and the same was communicated to the respondent-Institution, vide Government Letter (Ms) No.541 Revenue Department dated 19.12.2002.
9.The reasoning set out in an emphatic manner by the Government was that if the proposal of the respondent-Institution to provide an alternate land in favour of the Government was accepted, that would create a wrong precedent and every encroacher will make such kind of claims in future. Further, the appellant-Government have set out in their Appeal that right from the initial stage, the Government was consistently negativing the claims/proposals of the respondent-Institution. To substantiate the contention, the appellant-Government has stated that various Petitions submitted by the respondent-Institution to the authorities concerned, for assignment of the lands in their favour were rejected, as detailed below:
a)Initially the Revenue Divisional Officer, Thanjavur, has rejected Petition of the respondent-Institution, in proceedings No.A2/7219/99 dated 15.10.1999;
b)The District Revenue Officer, Thanjavur, has rejected the Petition filed by the Vee See Bee Trust,, in his proceedings No.70671/98/A2 dated 26.12.2000;
c)Further, the Revision Petition filed by Shri R.Sethuraman, was rejected by the Commissioner of Land Administration in his proceedings No.T2/6251/2001 dated 20.03.2001; and
d)The Government have also rejected the request of the Shanmuga Engineering College and their recommendation for proposal of assignment in Government Letter (Ms) NO.541, Revenue Department dated 19.12.2002.
10.It is further contended that the encroached land was specifically earmarked for the Open Air Prison in Thanjavur, vide Government Order (Ms) No.1030, Home (Pri-IV) Department dated 25.7.1996, by stating that as the prison site was best suited for setting up of an Open Air Prison and the lands offered by the Shanmugha Arts, Science Technology & Research Academy [SASTRA] (respondents herein) in Pudukottai is far away and therefore, there is no merit in the Petition submitted by the respondent-Institution. The earlier Writ Petition filed by respondent-Institution in W.P.Nos. 14718 and 14719 of 1988, were dismissed on the following grounds:
The petitioner himself has voluntarily offered the alternative site. But he cannot expect the Government to accept the offer or compel the Government to accept the same. When it is open to the Government to situate Open Air Jail in order to rehabilitate the prisoners by engaging themselves in the agricultural operations, naturally the poramboke land would be preferable. Because by free of labour the barren lands can be converted into cultivable lands. As already stated the proposal by the petitioner is for the exchange of the land. It may be pertinent to note that by the exchange the petitioner wants the poramboke lands lying adjacent to their campuses for their development. Hence, the action of the petitioner in challenging the decision of the Government is with ulterior motive of the personal benefit and it cannot be said that the writ petitioner had been filed in the interests of the students, as the initiation of the proceedings is personally motivated. I am of the view that the petitioner is not entitled for any relief, especially, when their rights is not involved in any manner. The respondent-Institution instigated the students also to file W.P.No.14720 of 1988 and since the students studied during the relevant point of time completed their course and left the Institution, the said Writ Petition was dismissed as infructuous.
11.The grounds on which the Writ Appeal has been filed is that in furtherance of the dismissal order of this Court dated 2nd December, 1998 in W.P.Nos. 14718 & 14719 of 1998 (referred supra), following the Tamil Nadu Land Encroachment Act, 1905 (Tamil Nadu Act 3 of 1905), the Government also continuously processed its actions and the order of rejection was issued vide Government Letter Ms.541 Revenue Department dated 19th December, 2002 by clearly stating that the Government rejected the request for alienation of the encroachment made by the Shanmuga Engineering College, would create a bad precedent and also ordered to evict the encroachments and collect the penalty amount as lease amount from 1984 to 2002 for the period they had encroached upon such land.
12.The proambokke lands cannot be assigned in favour of private persons and it is to be used only for the public purpose. The appellant further contended that the encroachment was made in a systematic and crafty manner by the respondent-Institution which is unambiguously established through their conducts, right from the period of encroachment. They have systematically travelled by initiating the proceedings one way or the other, only with an intention to continue in the encroached land and at no point of time, they have realised that it is a Government porambokke land and they have to be evicted under the Act. The attitude and the conduct of the respondents is clear that they are not law abiding and very much confident that they can get over from the legal impediments, by wrongful methods.
13.The respondents filed a detailed counter affidavit in this Writ Appeal and a reading of the entire counter, from page Nos. 1 to 12, the respondent-Institution has enumerated their academic excellence and achievements. Nowhere in the counter they have dis-controverted that they are not the encroachers. Thus, it is to be construed that the encroachment is an admitted fact by the respective parties and it is not disputed at any point of time by the respondent-Institution, nor they have disputed the Title of the Government in respect of the encroached land measuring about 58.17 acres. Thus, it is a clear case of Title in favour of the Government and a porambokke land.
14.Now, the question arose as to whether the encroachment has been dealt in accordance with the Act or not ?
15.The learned Senior counsel for the respondents mainly contended that the respondents occupied the land in question on the strength of the assurance of the then Hon'ble Chief Minister late Sri M.G.Ramachandran, and the Government Officials were aware of the same. In all force, the respondents contended that by virtue of the oral promise extended by the then Hon'ble Chief Minister (late) Sri.M.G.Ramachandran, they occupied the land and put up constructions. Further, reiterated that the alternate land of 70 acres offered in exchange of 58.17 acres is a fertile land and it will be useful to set up an Open Air Prison. The respondent has cited the example of Periyar Maniamma Educational and Charitable Trust, which also encroached the Government land to the extent of 100 acres and the same was subsequently assigned in favour of the said Periyar Maniamma Educational and Charitable Trust, in G.O. Ms.No.140, Revenue 514, Revenue Department dated 26th March, 2003 and the respondent-Institution alone was singled out and the Government has taken a decision that the " regularisation will set a bad precedent" and the Government had treated the respondents in a hostile manner. But, in other cases, they have considered and assigned such encroached land in favour of such institutions.
16.It is useful to note that the respondents never ever contested or denied the fact that they are the encroachers and the land in question is the Government porambokke land. With this back ground, it is necessary to go into the provisions of the Land Encroachment Act (3) of 1905. For better appreciation, Sections 3 & 4 of the Act, reads as follows:
3.Any person who shall unauthorisedly occupy in any area other than the transferred territory any land which is the property of the Government, shall be liable to pay by way of assessment.
4.The decision as to the rate or amount of assessment payable under section 3 shall be recorded in writing and shall not be questioned in any civil Court.
17.Section 6(1) of the Act deals with the summary eviction of persons, who are in unauthorized in occupation of Government Land and the mode of eviction also enumerated in sub-clause (3) of Section 6, which reads as follows:
6(3) Any authorized officer taking proceedings under this section shall make a report in writing containing such particulars as may be specified in rules or orders made under section 8 of the Collector, Tahsildar or Deputy Tahsildar having jurisdiction. Section 7 of the Act deals with the prior notice to the persons in unauthorized occupation, which reads as follows:
7.Before taking proceedings under section 6, the Collector or Tahsildar or Deputy Tahsildar or Revenue Inspector or any authorized officer or any officer of the Highways Department not below the rank of a Section Officer and not being an authorized officer as the case may be shall cause to be served on the person reputed to be in authorized occupation of land being the property of Government a notice specifying the land so occupied and calling on him to show cause before a certain date why he should not be proceeded against under section 6. Thus, it is clear that the Act prescribes a prior notice under section 7 to be issued against an encroacher before initiating eviction under section 6 of the Act. Hence, Notice under section 7 is mandatory under the Act to evict the person under section 6 of the Act. Thus, the provisions of section 2 of the Tamil Nadu Act, defines property of Government, Section 3 of the Act lays down that any person who shall unauthorizedly occupy in any area other than the transferred territory any land which is the property of the Government, shall be liable to pay by way of assessment. Section 5 of the Act, provides for further payment of penalty and section 6 provides for eviction and any crop or other product raised on the land shall be liable to forfeiture and any building or other construction erected or anything deposited thereon shall also, if not removed by him after such written notice as the Collector or subject to his control, the Tahsildar or Deputy Tahsildar or authorized officer may deem reasonable, be liable to forfeiture. Eviction has to be carried out, by serving Notice as provided under section 7 of the Act, after giving him reasonable time to vacate. There is also a provision for Appeal against the Order of the Collector or other Officers and there is also a provision for Revision by the Government.
18.With the above stated statutory provisions, now it is required to find out whether the Appellant-Government had acted in accordance with the procedure contemplated under the said Act or not ?
19.The entire encroachment even as per the respondent-Institution commenced during 1984-85. Even as per the counter filed by the respondents, in paragraph No.20, it is stated that on knowing that an Open Air Jail is being considered in Thirumalai Samudram, a personal representation was made to the then Hon'ble Chief Minister, (late) Dr.M.G.Ramachandran on 09.5.1985, and the then Hon'ble Chief Minister, orally agreed to drop the Open Air Jail proposal and agreed to assign the land to the respondent-Institution. The then Electricity Minister Mr.Panruti Ramachandran, was also present during the meeting and pursuant to the instructions from the Hon'ble Chief Minister, they contacted Inspector General of Prisons and the then District Collector, Thanjavur and conveyed the decision of the Hon'ble Chief Minister taken in the meeting conducted on 09.5.1985 and pursuant to the same, the College was permitted to enjoy the said lands and constructions which were unauthorizedly put up and occupied by them.
20.With this background, it is relevant to note the proceedings of the District Collector in D.O.RC.H.3/58020/83 dated 24.10.1985, addressed to the Special Commissioner and Commissioner of Land Administration, Chepauk, Chennai, to the following effect:
T.R.Ramaswamy, I.A.S., Thanjavur 613 001 District Collector Date : 24.10.1985 D.O.RC.H.3/58020/83 Dear Thiru Ramamurthy, Sub : Land Thanjavur District and Taluk Thirumalai- Samudram Village Transfer of land to Jain Department Proposals sent Permission to enter upon the land requested. Ref :This Office lr.Rc.H.3/58020/83 dated 25.09.1985
I invite kind attention to the reference cited where in I have sent proposals for transferring 23.54.0 Hec.(58.17 acres) of Adi-Dravida Welfare lands of Thirumalai Samudram Village, Thanjavur Taluk to the Jain Department for the formation of open air jail. I have also discussed with you in this matter. I have not yet received orders on this subject.
2. In this connection, I wish to point out that the Government in their G.O.(Ms) No.214 (Education) Dt.12.03.1985 have sanctioned 11.77 lakhs as grant air jail for the construction of Blocks for loading 20 prisioners each, for the construction of office, ration store, kitchen and electric connection for the open air jail and allotment of funds is said to be ready for expenditure. The Inspector General of prisons is also pressing for the early hading over of the lands to the Jail Department.
3. The Shanmugha Polytechnic Authorities, a self financing institution at Thirumalai Samudram have constructed the building adjacent to the lands proposed for transfer. They are encroaching upon the lands set apart for the formation of open air jail day and night by way of construction of buildings, fencing and stacking of hay etc., There is no sufficient Government machinery to prevent the encroachments. They are going on encroaching the Government lands with the result that it is very difficult to protect the interest of the Government lands from land grabbing. They are adopting all sorts of methods to encroach the lands.
4. In this case, the Special Commissioner and Commissioner of Land Administration is competent to order for the transfer of land to the jail department. Unless, the Jail Department is permitted to enter upon the land. I am afraid that the interest of the Government on the land could not be protected. With a view to execute the Government orders urgently and to protect the interest of the Government on the lands I request the jail Department may kindly be permitted to enter upon the land immediately pending formal orders of transfer of classification.
I request for early orders.
Yours Sincerely, Sd/-
(T.R.Ramasamy) ANNEXURE The details of lands granted for Enter Upon Permission to the Prison Department for the formation of Open Air Prison in Thirumalai Village, Thanjavur Taluk, Thanjavur District.
S.No. Extent Hectare.Acre S.No. Extent Hectare.Acre 148/1 0.65.0 148/25 0.65.0 3 0.35.0 26 0.99.0 5 0.65.0 27 0.71.0 6 0.67.0 29 0.26.5 7 1.21.0 31 0.31.0 8 0.50.5 32 0.16.0 10 0.65.0 33 0.18.0 11 0.81.0 34 Part 0.18.5 (Sub Division No.49) 12 0.57.5 35 Part 0.29.0 (Sub Division No.50) 13 0.67.0 36 Part 0.43.5 (Sub Division No.51) 14 0.56.5 37 0.38.5 15 0.56.5 38 0.40.5 16 0.81.0 39 0.32.5 17 0.69.0 40 Part 0.20.0 (Sub Division No.52) 18 0.87.0 41 Part 0.24.5 (Sub Division No.53) 19 0.48.0 42 Part 0.26.5 20 0.81.0 43 Part 0.33.5 21 0.81.0 44 Part 0.20.5 22 0.81.0 45 Part 0.57.5 23 0.81.0 46 Part 0.42.0 24 0.81.0 47 Part 0.38.5 48 Part 0.21.5 140/3 0.24.0 140/4 0.39.5 23.54.0 (or) 58.17 Acre Sd/-
Superintendent Section Officer And the subsequent proceedings of the Special Commissioner and Commissioner of Land Administration, Chepauk, Chennai in proceedings No.G3.51338/85 dated 03.12.1985, reads as follows:
PROCEEDINGS OF SPECIAL COMMISSIONER AND COMMISIONER OF LAND ADMINISTRATION Chepauk, Chennai 5 Present : Thiru V.Ramamurthy, I.A.S., G3.51338/85 dated : 03.12.1985 Sub : Land Transfer Thanjavur District and Taluk Thirumalai Samudram Village Formation of Open Air Prison Proposal for land Transfer -Enter upon permission granted Orders issued.
Ref : From the District Collector, Thanjavur letter No.Na.Ka.No.58020/83/03, dated 25.09.1985.
Order :-
In the letter cited, the District Collector, Thanjavur has sent proposal for transfer of land to the Prison Department for the formation of open Air Prison to an extent of land measuring 23.54.0 Hectare (58.17 Acres) in Thanjavur District & Taluk in Thirumalaisundaram Village.
2. On considering proposal necessary notification has been advertised by the Tahsildhar, Thanjavur on 16.06.1985 and no objections were received from any quarters and the local panchayat has also passed its resolution in favour of the proposal. The lands in Survey Nos.148/34, 148/35, 148/36, 148/40, 148/41 (Part) were recommended for transfer and as far as the remaining extent the encroachments and also informed that a separate report will be sent in connection with Vari Poramboke and Water Course Poramboke which lies in Survey No.148/28. The land cost for the land proposed for transfer has been reported as Rs.2,32,680. He has requested to grant Enter Upon Permission to the Prison Department in his D.O.Letter No.H3/58020/83 dated 24.10.1985.
In view of the above, Enter Upon Permission is granted to the Prison Department for the extent of lands enclosed in the Annexure as per RSO 23 A(ii).
Sd/-
Om.K.Rajaram for Special Commissioner and Commissioner of Land Administration
21.At this point of time, the respondent-Institution filed W.P.Nos.14718 to 14720 of 1988, with a prayer to forbear the respondents to implement the decision to locate the Open Air Prison in close proximity to Shanmuga Engineering College, in Thanjavur District. An interim injunction in W.P.M.P.Nos.22036 to 22038 of 1988 was granted on 2.12.1988, restraining the Government from taking any further steps towards implementation of the decision to locate the Open Air Jail in the premises of Shanmuga Engineering College at Thirumalai Samudram, Thanjavur District.
22.By the strength of the said interim order, the respondent-Institution constructed the buildings. Therefore, one cannot brush aside the wilful idea of the respondent-Institution to encroach the land and retain the same somehow or the other by adopting a wrongful methods. The final order in the Writ Petition was passed by this Court on 13.07.1998, wherein the learned single Judge categorically ruled out the claim of the respondent-Institution and dismissed the writ petition in following terms:
10. In the impugned proceedings the Government has taken into consideration all the relevant aspects and found that practically the proposal given by the Petitioner cannot be accpeted. The grievance of the petitioner that the Government has acted arbitrarily is without any basis. In fact the learned counsel for the Petitioners relied upon a judment reported in KASTURI LAL LAKSHMI REDDY ETC., VS. THE STATE OF JAMMU & KASHMIR AND ANOTHER (AIR 1980 SC 1992). I am of the view that the said judment has no relevance to decide the issue involved in this case, because in that case the Apex Court dealt with the power of the Government in granting larges. While granting larger, it has been held that the Government should not act in an arbitary manner by granting the same to a person of their choice. In this case, there is no doubt that the Petitioner's rights are not involved or said to have been affected. The Government decided to locate the Open Air Jail in their Poramboke Land. When this Court as well as the Apex Court have held that in the Land Acquisition cases, the selection of site is the subjective satisfaction of the eminent domain, it is not open to the petitioners to dictate to the Government as to where the Open Air Jail should be situated. Merely because the petitioner had been heard by the Government under the direction of this Court, it cannot be said that the petitioner is aggrieved person pursuant to the impugned proceedings.
11. The petitioner himself has voluntarily offered the alternative site. But he cannot expect the Government to accept the offer or compel the Government to accept the same. When it is open to the Government to situate Open Air Jail in order to rehabilitate the prisoners by engaging themselves in the agricultural operations, naturally the poromboke land would be preferable. Because by free of labour the barren lands can be converted into cultivable lands. As already stated, the proposal by the Petitioner is for the exchange of the land. It may be pertinent to note that by the exchange the petitioner wants the poromboke lands lying adjacent to their campuses for their development. Hence, the action of the petitioner in challenging the decision of the Government is with ulterior motive of personal benefit and it cannot be said that the writ petition, had been filed in the interest of the students. As the initiation of the proceedings is personally motivated. I am of the view that the petitioner is not entitled for any relief, especially when their right is not involved in any manner.
12. It is further to be noted that along with these writ petitions, the petitioner had set up the students to file another writ petition 14720 of 1988. It is definite that the students might not have spend from their pockets and filed their writ petition. Definitely the petitioner had set up the students to vindicate the petitioners personal cause. Since the students already left the college, that petition had been dismissed as infructuous.
13. For the reasons stated above, I am of the view that the writ petitions are devoid of any merits and are liable to be dismissed. Accordingly, both the Writ petitions are dismissed. However there will be no order as to costs. Consequently, all the WMPs are also disposed as necessary.
23.The respondent-Institution filed Writ Appeal Nos. 974 and 975 of 1998, questioning the Judgment rendered by the learned single Judge in W.P.Nos.14718 & 14719 of 1988. The Division Bench considered the entire issue and passed the final orders on 22.09.1998, confirming the order of the learned single Judge and dismissed the Writ Appeals in the following terms:
8. We have carefully considered the submissions made by the learned counsel for the parties. As observed by the learned single judge and as stated in paragraph 8 of the counter affidavit filed in the writ petitions the appellants were not given the details to show how the location of the Open Air Jail as proposed by the Government would affect the appellant - institutions except stating that the land is in close proximity to the institutions. It is stated in the counter affidavit that the land to the extent of 65.17 acres at Thirumalai samudram was allotted to the prison department for locating the Open Air Prison by the Revenue Authorities in May, 1982 and the appellant Engineering College was started during March 1984-85, that is, almost two years after granting the land to the Prison Department for the purpose. In all probability, it should be taken that the appellant was aware of the fact of allotment of land to the Prison Department for the purpose of Open Air Jail made in May 1982. Further, the defunct Open Air Jail was functioning in Thanjavur Neelagiri Thottam, next to Thanjavur Medical College and Hospital. The Open Air Jail in Singanallur, and Open Jail at Salem were originally away from the towns and are now engulfed by developing townships. The two reports made by the Inspector General of Police dated 17.5.1985 and 26.12.1994, as rightly contended by the learned Special Government Pleader, were only recommendatory in nature. The State Government, having the report dated 19.04.1996 made by the Deputy Inspector General of Prisons, passed the impugned G.O.Ms.No.1030 dated 25.07.1996. Merely because reference is not made to the recommendationary of the Inspector General of Prisons, it is not possible to say that the said impugned G.O.Ms.No.1030 is vitiated, when all the relevant matters have been taken into consideration. It is not the case that selection of the said site for the Open Air Jail was malafide.
9.The respondents have taken the stand that after a due consideration of the representation of the appellants, view of the Collector and bearing in mind the smooth situation prevailing in Open Air Jail, Neelagiri Thottam, Thanjavur, Open Air Jail, Singanallur and report of a vetoram water diviner Dr.S.Murugesh, rejected the representation of the appellants dated 5.2.1992 as devoid of merits, in the impugned G.O.Ms.No.1030, dated 25.7.1998. In paragraph 21 of the counter affidavit extracted above, it is clearly brought about how the appellants-institutions will not be affected in any way. The learned single Judge also observed that merely because the lands offered by the appellants voluntarily as alternative site, the State Government was not bound the accept the same and that it was open to the Government to situate the Open Air Jail in order to rehabilitate the prisoners by engaging themselves in the agricultural operations and that the poramboke land available would be naturally preferable because by free labour, the barren land can be converted into cultivable lands. The learned single Judge has also observed that the action of the appellants in challenging the impugned Government Order was with the ulterior motive to get the poramboke lands adjacent to their campus by offering other lands in exchange which were not considered suitable for the purpose. We do not find any good and valid ground to say that the common order under appeal suffer from any infirmity, either in law or on facts.
10.In the result, for the reasons stated, we dismiss these finding no merit in them, but with no order as to costs. C.M.P.Nos. 10667 and 10668 of 1998 are dismissed. Consequent to the dismissal of the Writ Petitions as well as the Writ Appeals by this Court, the respondent/Institution by not preferring any Special Leave Petition before the Hon'ble Apex Court, seems to have waited for the further action of the Government.
24.The Appellant/Government promptly issued a notice as required under section 7 of the Act and thereafter passed an order of eviction as contemplated under section 6 of the Act. The said order was once again challenged by the respondent/Institution in W.P.Nos. 9287 to 9292 of 1999 and the learned single Judge while passing final orders on 1st June 1999, observed the order passed under section 6 of the Act followed by the mandatory notice under section 7 of the Act. Therefore, there was no irregularity in passing the order of eviction under section 6 of the Act. Further, the learned single Judge observed that the statutory remedy of appeal is contemplated under the Act and further state that the very same issue in respect of the same property was dealt with in the earlier round of writ petitions and the respondent-Institution lost their earlier round of litigation, when they strenuously attempted to prevent the Government from vacating the encroached land for the purpose of Open Air Jail. The claim of the respondent- Institution was considered and rejected. Though the learned Judge dismissed the claim made by the respondent -Institution, granted liberty to the respondent-Institution to prefer an Appeal and till such time, granted the protection from dispossessing the Institution from the encroached land.
25.Pursuant to the above order of this Court in W.P.No.9287 of 1999, the respondent-Institution preferred a Revision Petition before the Commissioner of Land Administration, Chennai. Even a reading of the grounds of Revision, the respondent-Institution solely referred on the oral permission granted by the then Hon'ble Chief Minister late Dr.M.G.Ramachandran, in the year 1985 and there is no dispute with regard to the title of the land in favour of the Government and further it is admitted that the respondent has encroached the lands to the extent of 58.17 acres. The Special Commissioner and Commissioner of Land Administration in his proceedings R.C.No.6251/2001/T2 dated 1.3.2004, rejected the claim of the respondent-College as below:
ORDER:
Thiru R.Sethuraman, Managing Trustee, Bala Seva Educational and Charitable Trust Administering Shanmuga College of Engineering and VEE SEE BEE Trust Administering Shanmuga Polytechnic, Thirumalaisamudram, Thanjavur, has filed Revision Petition against the order of District Revenue Officer, Thanjavur in the reference first cited and requested for granting of stay.
2.The request of the Trust was examined by this Office and stay granted, in this office proceedings third cited stating that the status-quo of the disputed lands be maintained in the disposal of the Revision Petition.
3.In the meantime, the Government, in their letter No.541, Revenue Department dated 19.12.2002, have ordered to evict the encroachment made by the Shanmuga Engineering College and Polytechnic in the disputed lands and also ordered to calculate the lease amount for the period from the date of encroachment to till the date of eviction of encroachment and collect the lease amount along with interest. Since the Government have issued final orders in this case, the stay granted in this office proceedings Roc.No.T2/6251/2001 dated 20.03.2001, is hereby vacated and Revision Petition is dismissed. It is as against the said order, the respondent- Institution filed W.P.No.9037 of 2004, which is the subject matter of the present Writ Appeal.
26.On a perusal of the entire communications of the Appellant- Government, it is very clear that the Government specifically allotted the lands for setting up an Open Air Jail and consistently maintained there position to do so. At no point of time, a suggestion and the proposal made out by the respondent-Institution was considered by the Government and further the encroached portion of the land was already handed over to the Inspector General of Prisons for taking possession and to set up the Open Air Jail.
27.At this stage, it is useful to point out the proceedings of the Revenue Divisional Officer, Thanjavur, in the appeal preferred by the respondent-Institution on 28.6.1999, in proceedings in Na.Ka. No.7219/99/A2 dated 15.10.1999, which is scanned as below:
28.The above order of the Revenue Divisional Officer dated 15.10.1999 was challenged before the District Revenue Officer, Thanjavur, who in turn also considered and passed the following orders in proceedings Na.Ka.No.70671/98 A2 dated 3.1.2000, the relevant portion of the proceedings are extracted below:
Nature of the case:
Action was taken by the Tahsildar, Thanjavur to remove the encroachment of land by Shanmuga Engineering College in Thirumalaisamuthiram Village and under section 5 of Land Encroachment Act the summons was served on 24.9.1999. Notice under (7) of the Act was served on 30.4.99 and show cause notice was issued, why the encroachment were removed and seized and the encroacher was issued with notice to appear in person or submit his written statement on 14.5.99. The Manager of Shanmuga Engineering College wrote a letter stating that the concerned Chairman had gone to Delhi and the examination was being conducted at the time and it has resulted in the concerned person had not been able to reply to this notice and hence they required 4 weeks time. The Tahsildar, Thanjavur ordered to remove the encroachment and imposed fine. The petitioner submitted writ petition in the High Court, Chennai. The writ petitions were dismissed it is ordered to meddle with the property for 6 weeks and directed the petitions to file an appeal against the order issued by Tahsildar, following the petitioner filed an appeal on 28.6.99 before RDO Thanjavur. The appeal was dismissed and the order of Tahsildar was stand through vide Na.Ka.7219/99 A2 dated 15.10.99.
A Revision Petition was submitted in this Court.
Regarding to the notice issued by the Tahsildar U/S 7 dt:30.4.99, the Manager requested to give time till 14.6.99 without issuing any order upon the letter sent by Manager, it was ordered to vacate the encroachment area, this kind of act on the part of Tahsildar is proper and acceptable.
On perusing documents of Taluk Office it was observed that as stated in the notice U/S 7, the objection could not be raised within 14.5.1999. The Manager of the Institution sent a letter dt:8.5.99 stating that the head of the institution was out of station and also to meet the institution advocate considering the above reason the concerned authority may give 4 weeks time. It was received on time. Upon the request made by the Institution Manager Tahsildar could have issued an order granting time or rejecting it. If sufficient time had been given to the institutionary authority so that could lhave been no room for the petitioner complaining of his fundamental right have been affected. Not giving sufficient time to the revision petitioner is not acceptable and petitioner claiming his rights to express his opinion with regard to this case is acceptable.
The order issued by the Tahsildar through Na.Ka.7219/99/A2 dt:15.10.99 is cancelled as time required by the petitioner through the letter dt: 8.5.99 was not considered by the Tahsildar. It is ordered that revision petitioner can raise objection to the Tahsildar in 31.1.2000. Till the vacating of encroachment to be stopped.
If the Tahsildar, Thanjavur receives reply from the revision petitioner, he can consider it. If not proceed action as per the TN Land Encroachment Act 3/1905.
29.Once again, the Chairman of the Institution filed an objection on 24.01.2000. The said objection was dealt with by the Tahsildar, Thanjavur and an order was passed in Na.Ka.No.19391/95/A6 dated 21.02.2000, in which the Tahsildar has categorically observed as follows:
.............The above objection and the order copies were examined. Having known that the encroachment area already given to the prison dept by the Rev.Dept. the argument that the Prison Dept having failed to take possession of the land and which led to encroachment. The argument that land was encroached by oral instruction given by Former CM, the argument that objection having not been raised during construction is not acceptable to Law. The Objection by the Institution is not justifiable. On examining the Revenue orders and standing orders the encroachment is objectionable while the Rev. Dept has failed to recover encroachment and stop the construction work is suggested that the encroached area may be given to the encroacher by collecting the value of land. This rule is applicable to easmentary right encroachment area only. As the encroacher deliberately encroached the land the action was taken against them. Therefore, the claim is not acceptable.
The Institution has not submitted any relevant documents in support of the oral instruction given by Former C.M. The affidavit given by Former Minister is not considered evidentiary one. The objector who has pleaded to entrust the encroached land to him is not acceptable according to Govt. rule. Hence objection raised by the objection has no support hence the objection is rejected.
Against this order the appeal can be made to RDO, Thanjavur.
30.Once again an avenue was created to the respondent-Institution and in order to avail the same, a Revision Petition was filed by the respondent-Institution on 22.3.2000, before the Revenue Divisional Officer, who in turn passed the final order on 26.6.2000. The said appeal was also dismissed, as the Revenue Divisional Officer, Thanjavur, found that there is no justifiable reason to interfere with the orders passed by the Tahsildar on 21.02.2000. Challenging those orders, the respondent-Institution filed an Appeal before the District Revenue Officer, Thanjavur, who in turn passed the final orders in proceedings in R.C.70671/98/A2 dated 26.12.2000, and relevant portion reads as follows:
ORDER:
................
The Advocate for the petitioner Mr.R.Perumal, B.A.B.L., pleading that
1.The encroached area is getting permission of the CM by oral. The B.Memo also issued to the encroached area. The encroacher ready to give alternative land to open prison. The Thanjavur Tahsildar issued notice under section (6) is only after the Building construction work is finished not before. Now the institution having more than 2000 students. The appellate authorities shall not give reasonable time for his party and shall not give detailed orders.
In this reason, take accounts of the welfare of the students, and the encroached land is in the possession of the encroacher in many years also. So there is no loss arise to Government and also pleaded to issue orders any one of the following claims.
1. To accept the alternative land given by the encroacher.
2. To give the land to the institution for long term lease.
3. To give the land to the institution as cost Assignment.
In this case all the documents perusal very carefully and take account of the Advocate's opinion.
In this case the following question will be determined that is if the order of the Tahsildar issued notice under TN Land Encroachment Act section (6) is acceptable or not.
The revision petition filed under TN Land Encroachment Act, 1905 section 10(A). The petitioner accepting his encroachment and constructed building on that land. Now also the encroacher pleading as 1. If the encroachment is removed it may be against the welfare of the student. 2 And claims the land for A cost Assignment or lease. But any place they said the Tahsildar order is incorrect one. The encroachment land is already allotted to prison dept., and the encroachment is objectionable one, so the encroachment is to be removed one so the Court declares that the Thanjavur Tahsildar order is correct and acceptable one and ordered to dismiss this revision petition. The RDO's order is confirmed by this Court.
The petitioner may file appeal against this order to the Commissioner of Land Revenue, Chennai, within 30 days after receiving this order.
31.The respondent-Institution again approached the Commissioner of Land Administration, Chepauk, Chennai, who in turn passed the final orders in Rc.No.6251/2001/T2 dated 20.03.2001, granting an order of interim status quo. Subsequently, in letter No. G2/42065/2001 dated 5.11.2001, the Special Commissioner and Commissioner of Land Administration recommended the case of the respondent- Institution to the Secretary to Government, Revenue Department for assignment of the encroached land. But, the Government has not considered the request made by the respondent-Institution and finally, the order was passed by the Special Commissioner and Commissioner of Land Administration in proceeding R.C.No.6251/2001/T2 dated 1.3.2004, citing that the Government in their letter No.541, Revenue Department dated 19.12.2002, ordered to vacate the encroachment made by the Shanmuga Engineering College and Polytechnic in the disputed lands and ordered to calculate the lease amount for the period from the date of encroachment to till the date of eviction of encroachment and collect the lease amount along with interest. Accordingly, the interim order of status quo granted on 20.03.2001, was also vacated and the Revision Petition of the respondent-Institution was dismissed. This gave raise to the filing of the present Writ Petition No.9037 of 2004.
32.The Tamil Nadu Land Encroachment Act, 1905, is an Act, which provide measures for taking unauthorised occupation of land which are the property of the Government. The preamble of the Act provide measures for checking unauthorised occupation of lands which are the property of the Government, whereas, it has been the practice to check the unauthorised occupation of lands which are the property of the Government and by imposition of penal or prohibitory assessment or charge and whereas, the doubts have arisen as to how far such practice is authorized by law and it is expedient to make statutory provision for checking such occupation. The Act provides for removal of encroachment and and the implementation of the Act by the Government officials are to be done in a manner prescribed under the Act. Any violation of the officials also to be viewed seriously.
33.With this background, it is necessary to go into the legal principles laid down by the Courts on encroachments:
(i)In PANDIA NADAR AND ORS v. THE STATE OF TAMIL NADU AND ORS [ 1974 AIR 2044], the Constitution Bench of the Hon'ble Supreme Cout rendered a Judgment on 30th April 1974 wherein, the very constitutional validity of the Tamil Nadu Land Encroachment Act, 1905 was tested. While dismissing the Appeals filed by land encroachers, the Hon'ble Supreme Court held as follows:
This Court then went on to apply those principles to the statutes under consideration in the following words :
"The statute itself in the two classes of cases before us clearly lays down the purpose behind them, that is that premises belonging to the Corporation and the Government should be subject to speedy procedure in the matter of evicting unauthorized persons occupying them. This is a sufficient guidance for the authorities on whom the power has been conferred. With such an indication clearly given in the statutes one expects the officers concerned to avail themselves of the procedures prescribed by the Acts and not resort to the dilatory procedure of the ordinary Civil Court. Ever, normally one cannot imagine an officer having the choice of two procedures, one which enables him to get possession of the property quickly and the other which would be a prolonged one, to resort to the latter. Administrative officers, no less than the courts, do not function in a vacuum. It would be extremely unreal to hold that an administrative officer would in taking proceedings for eviction of unauthorised occupants of Government property or Municipal property resort to the procedure prescribed by the two Acts in one case and to the ordinary Civil Court in the other. The provisions of these two Acts cannot be struck down on the fanciful theory that power would be exercised in such an unrealistic fashion. In considering whether the officers would be discriminating between one set of persons and another one has got to take into account normal human behaviour and not behaviour which is abnormal. It is not every fancied possibility of discrimination but the real risk of discrimination that we must take into account. This is not one of those cages where discrimination is writ large on the face of the statute. Discrimination may, be possible but is very improbable. And if there is discrimination in actual (1) [1952] SCR 435 (2) [1962] 2 SCR 125 (3) [1960] 2 SCR 646 (4) [1954] SCR 30.
practice this Court is not powerless. Furthermore, the fact that the Legislature considered that the ordinary procedure is insufficient or ineffective in evicting unauthorised occupants of Government and Corporation property, and provided a special speedy procedure therefore is a clear guidance for the authorities charged with the duty of evicting unauthorised occupants. We, therefore, find ourselves unable to agree with the majority in the Northern India Caterers' case."
(ii)In KRISHNAN,L. v. STATE OF TAMIL NADU [2005 (4) CTC 1], His Lordship Justice F.M.Ibrahim Kalifulla, speaking for the Bench, held as follows:
9. In this connection reference may be made to Article 48A of the Constitution which states: -
"Protection and improvement of environment and safeguarding of forests and wild life: - The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country."
10. No doubt the above provision is in the Directive Principles of State Policy, but it is now well settled that the fundamental rights and directive principles have to be read together, since it has been mentioned in Article 37 that the principles d down in the Directive Principles are fundamental in the governance of the country and it is the duty of the State to apply these principles in making laws. The Directive Principles embody the aim and object of the State under a Republican Constitution, i.e., that it is a welfare State and not a mere police State, vide Kesavananda Bharati Vs. State of Kerala, (197 3) 4 SCC 225 (vide paragraphs - 134, 139 and 1714) and embodies the ideal of socio-economic justice, vide Union of India Vs. Hindustan Development Corporation, AIR 1994 SC 988 (990).
11. Though the early decisions of the Supreme Court paid comparatively scant attention to the Directive Principles in Part - IV of the Constitution as they were said to be non-justiciable and nonenforceable in the Courts (vide Article 37), the subsequent decisions of the Supreme Court changed this trend and this new trend reached its culmination in the 13 member bench Judgment of the Supreme Court in Kesavananda Bharati's Case (Supra), which laid down that there is no disharmony between the directive principles and fundamental rights because they supplement each other in aiming at the same goal of bringing about a social revolution and the establishment of a welfare State, which is envisaged in the Preamble to the Constitution. The Constitution aims at a synthesis of the two, and the Directive Principles constitute " the conscience of the Constitution". Together they form the core of the Constitution, vide Markandeya, V. Vs. State of A.P., AIR 1989 SC 1308 (paragraph - 9). They are not exclusionary, but are complementary to each other, vide Unnikrishnan, J.P. Vs. State of A.P., AIR 199 3 SC 2178. It follows therefore that the courts should uphold, as far as possible, legislation enacted by the State which seeks to remove inequalities and attain 'distributive justice', vide, Lingappa Pochanna Appealwar Vs. State of Maharashtra, AIR 1985 SC 389 (paragraphs 1 6 and 20), Manchegowda Vs. State of Karnataka,AIR 1984 SC 1151, Fateh Chand Himmatlal Vs. State of Maharashtra, AIR 1977 SC 1825, etc., In recent decisions the Supreme Court has been issuing various directions to the Government and administrative authorities to take positive action to remove the grievances which have been caused by nonimplementation of the Directive Principles, vide Comptroller and Auditor General of India Vs. Jagannathan, AIR 1987 SC 537 (paragraphs 20-21), Mukesh Advani Vs. State of M.P., AIR 1985 SC 1363, Bandhua Mukti Morcha Vs. Union of India, AIR 1984 SC 802, Animal and Environment Legal Defence Fund Vs. Union of India, (1997) 3 SCC 549, etc.
12. Apart from the above we may also refer to Article 51A(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 (supra, vide para-15).
13......
14. 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 a 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.
(iii)In an important Judgment, the Hon'ble Supreme Court in JAGPAL SING v. STATE OF PUNJAB [ AIR 2011 SCC 1123], has held as follows:
13. We find no merit in this appeal. The appellants herein were trespassers who illegally encroached on to the Gram Panchayat land by using muscle power/money power and in collusion with the officials and even with the Gram Panchayat. We are of the opinion that such kind of blatant illegalities must not be condoned. Even if the appellants have built houses on the land in question they must be ordered to remove their constructions, and possession of the land in question must be handed back to the Gram Panchayat. Regularizing such illegalities must not be permitted because it is Gram Sabha land which must be kept for the common use of villagers of the village. The letter dated 26.9.2007 of the Government of Punjab permitting regularization of possession of these unauthorized occupants is not valid. We are of the opinion that such letters are wholly illegal and without jurisdiction. In our opinion such illegalities cannot be regularized. We cannot allow the common interest of the villagers to suffer merely because the unauthorized occupation has subsisted for many years.
21. For the reasons given above there is no merit in this appeal and it is dismissed.
34. CONCLUSION:
(I)The respondents in this Writ Appeal had exhausted the remedies available both under the provisions of the Tamil Nadu Land Encroachment Act, 1905, and this Court in Writ Proceedings as well as in Writ Appeal proceedings before the Hon'ble Division Bench. The Hon'ble Division Bench concluded the matter in Writ Appeal. Thereafter, they have commenced the second round of litigation, by preferring Appeal before the Appellate Authority. Thus, the Appellate Authority also has erred in entertaining the second round of appeal, which is not contemplated under the provisions of the Tamil Nadu Land Encroachment Act, 1905. Once, the High Court decided the matter both in the Writ Petition as well as in the Writ Appeal, the Authorities ought not to have entertained any Appeal or Revision thereafter, on the same issues. The clever way of slightly modifying the relief in the Application by the respondents will not confer any right for the continuance of the second round of litigation in this regard. The intention of the respondents in this regard is to be construed as if to continue their encroachment and to continue their possession in the encroached Government land. They wanted to keep the litigation pending for ever without allowing the authorities and the Courts to give quietus in the subject matter. Thus, the respondents are to be treated as chronic offenders of encroaching the Government land in view of the fact that they never allowed the litigation to stop and continued the same one way or other in order to continue their possession in the encroached land, measuring to a larger extent of 58.17 acres. Alienation of a public land owned by the State which is by the people and for the people under the Constitution, has got a duty mandatory to protect the public land for the welfare of the public vis., the duties of the Government to protect the public land for public purposes.
(ii)The respondent-deemed University filed lengthy affidavit describing their academic achievements and the charities provided by them to the public in general. This Court wishes to ask a question under whose cost ? Persons stealthily and collectively encroaching Government land and pouring Crocodile tears by stating they are doing charity to the public is nothing but a mockery on the Constitution of this Great Nation and the law in force on the land. It is as bad as a story that a thief after committing a burglary or theft of valuables contributed part of the same for charity. Can the thief be acquitted on this ground under law. Thief is a thief and he should be dealt with in accordance with law. The respondent-University is owning and in possession of more than 60 acres of land adjacent to the Government land and even today they are keeping such a vast extent of land vacant for all future purposes. The attitude and the conduct of the respondent to be weighed and measured in scales. The property encroached by the respondent-Institution is to the extent of 58.17 acres. By directing the respondent-Institution to deposit 10 crores within 30 days cannot be a ground to condone the criminal trespass and the offence of encroachment committed by them. Certainly it will send a wrong message to such land grabbing Mafias to continue the offence of encroachment perpetually. The land to an extent of 58.17 acres in the outskirts of Thanjavur will costs more than 50 crores even as per the statement of the Government filed long back. Now certainly it will fetch double the amount. By paying Rs.10 crores, the respondent-Institution cannot be allowed to take away the valuable Government land measuring 58.17 acres. The respondent-Institution created a land lock to an extent of 20 acres initially and the same no doubt amounts to a systematic encroachment and further extended the encroachment upto the extent of 58.17 acres. This Court is able to find out that the few authorities of the District Administration had colluded with the respondents and had extended their leniency, enabling the respondent-Institution to continue the encroachment and keeping the Government property under their possession for a long time. The claim of the respondent-Institution that they are doing charity to the local people cannot have any significance and this Court would like to state that everyone of the citizen in this Great Nation is doing charity to the extent possible and within his capacity. Even paying one rupee for the public purpose is a charity. Contribution may differ from person to person in accord with his financial position and status. However, an idea of charity cannot be measured in relation to the quantum of money contributed. Thus, such a pleading made by the respondent-Institution seems to be very innocuous and a person doing charity and making a tom-tom in the public has to be characterised in a different manner since he is the person encroached the Government land belongs to the citizen of this country.
(iii)The question of invoking Articles 14 & 16 of the Constitution of India will not arise at all and the principles enunciated therein under the Constitution cannot be extended to the chronic violators of law. In the case on hand, the respondents have not only encroached the Government land to a larger extent of 58.17 acres, but, also continue to occupy the land for many years by abusing the process of law as well as the Courts. Thus, the question of comparison of the issues, citing all other cases shall not be available to the respondents. The respondent-Institution being a chronic encroacher of Government land, adopted many mischievous methods for continuing their encroachment. The benefit of showing a kind of leniency is not available and the case of the respondents has to be dealt with iron heart by applying the law in its strict sense.
(iv)The wrong precedent created by the State in some other cases will not confer any legal right on the respondents to claim encroachment as a matter of right. Encroachment is an offence and the offender cannot cite a wrong precedent so as to to escape from the liability. The encroachment is an offence against the State as well as against we, the people of India. Therefore, the offence of encroaching the Government land should never be spared and such offenders should be dealt strictly in accordance with law and the State is bound to initiate prosecution against all such encroachers. The Constitutional Courts in this regard shall not issue any directions to the Public Authorities to assign the public/porambokke land in favour of an encroacher, which is an offence under the provisions of the Tamil Nadu Land Encroachment Act, 1905.
(v)This Court is of the clear view that alienation by the State shall be provided only for the public welfare and in the interest of public. The State shall not have any power to alienate the land in favour of the private individuals for the purpose of Commercial Establishments or Commercial Institutions. Merely under the guise that the respondents are running an Educational Institution, cannot claim any lenient view, as a mater of right. The test being adopted by the Courts are that the lenient view taken by the State in favour of certain private individuals are genuinely for the public interest and for the public welfare or not. If the test fails and the lands are alienated by the State for commercial purposes to the private individuals, then the State Authorities are also to be held liable for allowing the public lands for such purposes and all required actions to be initiated including to compensate the State. The State shall not provide or contribute the public land for the enrichment of private person. The State being a model and welfare State has to act only in the interest of the public and for the welfare of its people. Thus, the State is duty bound to identify the officials, who are responsible for alienating the Government land in favour of certain private individuals for the purpose of running Commercial Establishment/Institutions etc. The State has no authority both morally and legally to alienate the land in favour of the private individuals for commercial purpose. Thus, this Court is of the opinion that the claim made by the respondents has no relevance or meaning at all, since the respondent-Institution is a sheer commercial educational institution and functioning for their private enrichment and providing of funds to certain charities will not characterise the educational institution as a non-commercial educational institution.
35.In the result,
(a) The Judgment delivered on 04.09.2014 in WP No.9037 of 2004 is set aside and the Writ Appeal stands allowed;
(b) The Appellant/State is directed to vacate the respondents/writ petitioners from the encroached portion of the Government land and take possession of the same within a period of four weeks from the date of receipt of a copy of this order and accordingly fence the Government land and provide 24 x 7 = 365 days security for the Government land;
(c) The Superintendent of Police, Thanjavur is directed to provide adequate protection to the District Administration for the eviction of the respondents from the Government land;
(d)The District Administration, Thanjavur, is directed to recover the appropriate compensation/fees/penalty from the respondents, for the period in which they are in illegal occupation of the Government land by following the procedures contemplated under law;
(e)The Appellant/State is directed to conduct an enquiry in this regard and initiate appropriate penal/disciplinary actions against all the Government officials/employees found to be colluded and involved in support of the encroachment of Government land and its continuance by the respondents, without any further delay.
(f)The Principal Secretary to Government, Revenue Department, Fort St. George, Chennai, is directed to monitor the entire action taken by the officials in this regard.
However, there will be no order as to costs. Consequently, connected Miscellaneous Petition is closed.
(N.R.R.J.,) (S.M.S.J.,)
11.08.2017
Index :Yes
Internet:Yes
svn/rpa
NOOTY.RAMAMOHANA RAO , J.,
and
S.M.SUBRAMANIAM, J.,
rpa
Pre-Delivery Judgment in
W.A.No.1451 OF 2017
11.08.2017