Bar & Bench (www.barandbench.com)
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 19.02.2018
Coram
THE HONOURABLE Mr. JUSTICE M.VENUGOPAL AND THE HONOURABLE Mr. JUSTICE S.VAIDYANATHAN
W.P.No.31114 of 2017 and W.M. P.No.34112 of 2017
1. S.Srinivasan 2. K.Lakshmanan 3. M.Ramu 4. Chinaponnu 5. Mariyammal 6. M.Dhandapani 7. S.Selvam 8. R.Arumugam 9. D.Jeeva 10.M.Rangasamy 11.M.Natarajan 12.C.Muthu 13.Murugan 14.S.Rajeswari 15.S.Ganesa Kumar 16.Ponnarasi 17.Annamalai 18.S.Venkatesan 19.Sekar 20.Rani Jayaraman 21.Selvakumar 22.R.Soundari 23.V.G.Kannaiyan 24.Krishnaveni 25.Ranganathan 26.Punniyakoti 27.Tamilvanan 28.S.Raja 29.A.Anjalai 30.M.Rapheal http://www.judis.nic.in 31.S.Saravanan Bar & Bench (www.barandbench.com)
2
32.B.Sekar 33.D.Ramesh 34.Navaneetham 35.Meganathan 36.J.Sumathi 37.Kumari 38.Krishnamurthy 39.A.K.Rajan 40.K.Natarajan 41.K.Arumugam 42.Dhanalakshmi 43.J.Valli 44.M.Arumugam 45.K.Lakshmi 46.J.A.Valli 47.Srinivasan 48.Annammal 49.S.Kumudha 50.N.M.Kabali 51.Thirumurthi 52.G.Kanniyappan 53.E.Muniyammal 54.Sanjai kumar 55.A.Anandan 56.Jayalakshmi 57.S.Saroja 58.P.Mohanaj 59.P.Saravanan 60.P.Mohanasundaram 61.P.Sekar 62.G.Chandrasekar 63.K.Velusamy 64.K.Vijayaraj 65.C.Vijaya 66.N.Vedagiri 67.S.Vasuki 68.N.Ganapathi 69.K.Ravi 70.D.Mani 71.Thiruvenkadam 72.Selvi 73.Poongavanam 74.Dhuraisamy http://www.judis.nic.in 75.Jagathambal Bar & Bench (www.barandbench.com)
3
76.Shanthi 77.Karunai Selvam 78.G.Sankar 79.K.Vasantha 80.G.E.Balan 81.A.Karupiah 82.P.Sivagami 83.M.Loganayaki 84.Rajaram 85.S.Muniyammal 86.M.Shanker 87.A.Arumugam 88.Malliga 89.S.Govindaraj 90.E.Kannan .. Petitioners
Vs.
1. The State of Tamilnadu Rep. By its Secretary, Department of Housing and Urban Development, Fort St. George, Chennai – 600 009
2. The State of Tamilnadu, represented by its Secretary to Government, Public Works Department, Fort St. George, Chennai- 600009.
3. The Chairman and the Managing Director, Tamilnadu Slum Clearance Board, Kamarajar Salai, Chennai – 600 009
4. The Collector of Chennai Rajaji Salai, Chennai – 6000 001
5. The Commissioner, Corporation of Chennai, Ripon Buildings, Chennai – 600 003
6. The Executive Engineer, PWD (WRO) (Araniyar Basic Division) http://www.judis.nic.in Chepauk, Chennai – 600 005 Bar & Bench (www.barandbench.com)
4
7. The Assistant Commissioner, Zone – XIII, Chennai Corporation Dr.Muthulakshmi Road, Adayar, Chennai – 600 020
8. The Executive Engineer, Division – VI, Tamilnadu Slum Clearance Board, Chennai – 600 018
9. The Tahsildar, Mylapore Taluk, Chennai – 600 028
10. Rajiv Rai ..Respondents
Writ Petition filed under Article 226 of Constitution of India for issuance of a Writ of Mandamus forbearing Respondents 1 to 9 from evicting the Petitioners from their properties situated in Survey No.3961/3, Elango street, Govindasamy Nagar, Chennai – 600 028 and pass further orders.
For Petitioners : Mr.Anirudh
For Respondents : Mr.A.N.Thambidurai, for R1, R2, R4, R6 and R9 Special Government Pleader Mr.K.Soundarrajan, for R5, R7 Mr.S.Prabhu for R3 and R8 Mrs.M.R.Preethi for Mr.Roshan Balasubramaniam for R10
O R D E R
[Order of the Court was made by S.VAIDYANATHAN, J.]
Petitioners have come forward with this Writ Petition, seeking to
forbear the official Respondents from evicting them from the property,
viz., in Survey No.3961/3, Elango street, Govindasamy Nagar, Chennai
– 600 028.
http://www.judis.nic.in Bar & Bench (www.barandbench.com)
5
2. The case of the Petitioners are as follows:-
(i) Petitioners have been residing in Elango Street, Govindasamy
Nagar, Chennai for more than 40 years and that the encroached area
has been notified as 'Slum Area' by Tamilnadu Slum Clearance Board
as per G.O.(Ms) No.163 dated 28.02.1993. While so, the 10th
respondent viz., Rajiv Rai has filed W.P.No.9494 of 2006 before this
Court stating that he is the owner of the property in Re-Survey
No.3957/2 and that there are several encroachments in Elango Street
and sought for a direction to remove the encroachments in the said
area. It has been found by the authorities that there are encroachments
in the subject land in question. Hence, this Court, on 05.04.2006
directed the removal of encroachments in W.P.No.9494 of 2006.
(ii) On 21.07.2006, the Commissioner of Corporation sent a
communication to the 10th respondent and that the encroachments have
been made in the land, which belongs to Public Works Department and
that a letter was addressed to the Collector of Chennai for removal of
encroachments. Yet another Writ Petition was filed by the 10th
respondent in W.P.No.3273 of 2008, wherein, he had contended that he
was residing in Elango street and that the respondents have to remove
the encroachments within a time bound period. This Court, on
13.03.2008 in W.P.No.3273 of 2008 directed the authorities concerned http://www.judis.nic.in Bar & Bench (www.barandbench.com)
6
to remove the encroachments. However, the said order dated
13.03.2008 was challenged by some of the petitioners before the
Supreme Court in SLP(C) No.25401-25403 of 2009. The Supreme
Court had passed an order, dated 11.02.2011 with a direction to remove
the encroachers after providing alternative accommodation.
(iii) The Tamilnadu Slum Clearance Board, by the proceedings
No.G6/11928/2008, dated 01.01.2014, concluded that there are 366
encroachers. Therefore, only 366 persons were removed and the
petitioners have not been removed, since they have not encroached the
canal. In the meantime, the 10th respondent filed a Contempt Petition
before the Supreme Court in Cont.P.Nos.844-846 of 2015 against the
official respondents on the ground that they have disobeyed the orders
of the Supreme Court passed in SLP(C) No.25401-25403 of 2009 dated
11.02.2011.
(iv) Since the petitioners apprehended that they may also be
removed from their property, they filed an Interlocutory Application for
impleadment in the Contempt Petition. However, the Supreme Court in
the Interlocutory Application filed by the Petitioners, on 23.10.2017,
passed an order granting liberty to the Petitioners approach this Court
and establish that they are not encroachers. The relevant paragraph is http://www.judis.nic.in Bar & Bench (www.barandbench.com)
7
extracted hereunder:
“This Interlocutory Application for impleadment is dismissed without prejudice to the liberty available to the applicants to approach the appropriate forum in case they are not encroachers”
(v) That apart, the petitioners' case is that the subject land in
question originally belonged to PWD and the same was acquired by the
Tamilnadu Slum Clearance Board in the year 1973 and thereafter, the
said land was allotted to them and hence they are not encroachers.
However, the respondents have come forward with the contention that
the subject land in question belongs to Slum Clearance Board, more
particularly, the fact that the petitioners were residing for more than four
decades was not been taken into account. Besides the above, fresh
enumeration was done by the Tamilnadu Slum Clearance Board and
only 366 families, who were identified to be encroachers out of 625,
approached this Court earlier and that P.W.D have no jurisdiction to
evict the petitioners, who are in possession of the subject property by
the allotment made by the Tamilnadu Slum Clearance Board.
(vi) The petitioners drew the attention of this Court to the http://www.judis.nic.in Bar & Bench (www.barandbench.com)
8
notification published in the Tamilnadu Government Gazette
G.O.Ms.No.163, Housing dated 28.02.1973 issued by the Tamilnadu
Government Gazette Supplement to Part II-Section I, wherein, Sl.No.59
is mentioned as 'Govindasamy Nagar Slum, Part II' and the area noted
is Block No.37, 3761-3 and the square meter referred to is 2,137 and
41.4.
2. The learned counsel for the petitioners would submit that when
the 10th Respondent filed a Writ Petition, the petitioners herein were
made as parties and that there are two areas in and around
Buckingham Canal and that the area in which the petitioners reside, viz.,
southern side is not one of the subject lands of encroachment.
3. Learned Counsel for the petitioners reiterated that a place has
been allotted to the Slum Clearance Board and when liberty has been
granted by the Apex Court in Contempt Petition C.Nos.844-846 of 2015
dated 23.10.2017, the petitioners have approached this Court to
establish that they are not encroachers. He further submitted that all
the persons have paid necessary property taxes and water charges and
are possessing Aadhar card and other evidences to show that they are
residents of that place and that to an extent of less than 500 Sq.Ft, http://www.judis.nic.in Bar & Bench (www.barandbench.com)
9
there is no need to obtain any permission or plan from any one, much
less from the official respondents in the Writ Petition for constructing
building.
4. Learned Counsel for the Petitioner also drew the attention of
this Court to the communication from the Tahsildar, Chennai to the
Chairman and Managing Director, Tamilnadu Slum Clearance Board,
Chennai – 600 009, wherein it has been stated that 'another row of
houses lying on the Southern Side of Elango street, are not abutting
Buckingham canal etc., and that the plots were measured and each of
the allottee is allotted with only 420 sq.ft and that they have constructed
the building and lands have been allotted to them by the Tamilnadu
Slum Clearance Board' It is contended by the petitioners that when the
area is notified as slum, the petitioners cannot be evicted by any one
much less, the respondents in the writ petition.
5. Per contra, it is stated by respondents 3 and 8, by way of
counter dated 16.02.2018 that the entire encroachers numbering 625
were residing in 3961/3 classified as 'Buckingham Canal' belonging to
PWD and the land till date is not transferred from PWD and not
acquired by the Tamilnadu Slum Clearance Board for taking any one of
the development schemes in that area of Govindasamy Nagar and http://www.judis.nic.in Bar & Bench (www.barandbench.com)
10
Elango street. The entire residents residing in survey no.3961/3 are
presumed to be encroachers and are liable for eviction by PWD. The
Tamilnadu Slum Clearance Board is ready to give allotment to the
encroachers, if they are evicted by the Land Owning Department.
6. Besides the above, respondents 3 and 8 have stated in their
counter that according to the Slum Clearance Board, they have issued
orders to 366 persons out of 625 encroachers, who were residing very
close to the canal. The PWD removed the said 366 persons and the
houses were allotted to them by the Tamilnadu Slum Clearance Board,
under Tenemental Scheme in Okkiyam-Thoraipakkam and the left-out
expanded family members numbering 42 among 366 encroachers also
vacated from the site and allotment was made at Ezhil nagar,
Perumbakkam Scheme. Remaining 259 (625-366) encroachers could
not be evicted by PWD due to heavy resistance from the residents, till
date, even though Tamilnadu Slum Clearance Board is ready for issuing
allotments to the affected families.
7. The 6th respondent has filed a status report dated December,
2017, wherein, it has been pointed out that the site at Survey
No.3961/3, Mylapore village situated on the Buckingham Canal is under
the control of PWD. He further stated that pursuant to the order passed http://www.judis.nic.in Bar & Bench (www.barandbench.com)
11
by the Apex Court in Contempt Petition Nos.315-317/2015 in SLP
Nos.25401 to 25403 of 2009 filed by one Rajiv Rai, about 366
encroachments abutting the canal bank were evicted and rehabilitated
by the PWD during the month of August 2015 and that PWD has
initiated action to evict the remaining 259 encroachments along the
eastern side of Elango Street, Govindasamy Nagar, R.A.Puram,
Chennai – 28. After eviction of encroachments abutting the canal bank,
a clear set back of 40-45 feet space is available from the existing
structures of Elango Street, Govindasamy Nagar. It is also stated that
the Police Department was informed to provide necessary bandobust in
order to remove the encroachments, as due to stiff resistance,
encroachments could not be removed.
8. The 7th respondent has also filed a report dated 09.12.2017,
wherein it has been stated that joint inspection was conducted to
ascertain as to whether super structure / construction has been done in
accordance with the sanctioned plan or not and if sanctioned plan is
available,whether it is in consistence with the sanctioned plan. Further, it
was found that at the time of inspection, the disputed area had 103
dwelling units and the details of the constructions are as follows:-
1. No. of Public Convenience Site – 1 No. 2. No. of pumping state site - 1 No. http://www.judis.nic.in 3. No. of vacant site, dilapidated building – 2 nos. Bar & Bench (www.barandbench.com)
12
4. No. of AC sheet building - 34 nos. 5. No. of permanent structures with partly R.C.C and A.C. Sheet in Ground and first floor - 25 nos. 6. No. of permanent structures with ground floor and first floor – 40 nos.
9. Futhermore, in the report filed by the 7th respondent, it is stated
that Survey No.3961/3, Mylapore village, is situated on the southern
side of Buckingham Canal and the same is under the control of P.W.D.
It is stated that notice has been issued calling for the approved plan on
14.12.2017 and further stated that construction has been made in the
water ways and during the monsoon season and at flood times, all the
encroached areas had caused damage to the people living in that area.
For their relief measure, the Government has incurred heavy
expenditure by providing food and shelter and even though the
petitioners are assessed to property tax, they are not entitled to claim
the property. Merely because roads and basic amenities are provided, it
does not mean that the encroachers are having title over the property
and they cannot reside in the encroached place. The 10th respondent
being the owner of the property at No.6/13, Park Avenue,
Kesavaperumalpuram, Chennai – 28 has approached this Court for
removing the encroachments abutting the Buckingham Canal.
http://www.judis.nic.in Bar & Bench (www.barandbench.com)
13
10. Per contra, the contesting respondent no.10 has filed a
counter, stating that the petitioners are approaching this Court by filing
one writ petition or the other and thereby, not allowing the officials to
complete the removal of encroachments. According to him, there is
suppression of facts with regard to the various proceedings, which has
been disposed of by this Court and the vital facts have not been brought
to the notice of the Apex Court. He further submitted that more than
150 encroachers have approached this Court by filing W.P.No.26725 of
2015 for a positive direction to grant them patta on the basis that the
area in question was notified as 'Slum' and 36 out of 53 persons are
petitioners in this writ petition, including the one, who has filed affidavit.
It is stated that the aforesaid writ petition was withdrawn without any
Leave to file a fresh Writ Petition on the same or similar cause of action,
as could be seen from the order dated 28.09.2016, relevant portion of
which is extracted below:
“The learned counsel for the petitioner seeks to withdraw the writ petition. Endorsement has been made. 2. The writ petition is dismissed as withdrawn. No costs. Consequently, M.P.no.1 of 2015 is closed.”
11. According to the 10th Respondent, the Petitioners in
W.P.No.26725 of 2015 have suppressed the fact that a number of them
were parties to SLP.Nos.25401 to 25403 of 2009 and covered by the http://www.judis.nic.in Bar & Bench (www.barandbench.com)
14
order of the Apex Court, dated 11.02.2011. According to him, the
Hon'ble First Bench of this Court is inclined to impose costs for abuse of
process in addition to dismissing W.P.No.26725 of 2015 on merits, if
pressed. This would also be evident from the order made in
W.P.No.25530 of 2015, which, on the same day was dismissed on
merits (instead of being withdrawn) as the petitioners therein were not
parties to the SLP mentioned supra.
12.The learned Counsel for the 10th respondent submitted that
when the petitioners have lost positive right for obtaining necessary
patta, they are encroachers and they are not entitled to any other relief
seeking a direction not to evict them. Further, when the matter was
heard by the Apex Court, these facts were not brought to their attention.
Had this been brought to the attention of the Supreme Court, it would
not have granted the relief of permitting the petitioners to approach the
appropriate forum. Further, in the counter, the list of names of the
persons were given and that one Srinivasan, who is the first petitioner in
the present Writ Petition was the 2nd petitioner in W.P.No.26725 of 2015
and some of the petitioners, who were parties to the earlier writ petition
were also parties to the Special Leave Petition mentioned supra.
13. According to the 10th Respondent, the petitioners claims to be http://www.judis.nic.in Bar & Bench (www.barandbench.com)
15
the residents in Survey No.3961/3. In the joint inspection report dated
12.03.2008 filed in W.P.No.3273 of 2008, it has been categorically
mentioned by the Tahsildar and P.W.D officials that the said survey
number forms part with Buckingham Canal and it crosses Kamaraj salai
and Greenways salai and that the petitioners have also admitted in
Paragraph No.6 of the Affidavit that the land belongs to PWD, which is
also indicative of the fact that it is actually a water body. There is no
reason as to why joint inspection report has not disclosed that the entire
buckingham canal has been declared as a National Waterway
(Kakinada-Puducherry stretch of Canals and the Kaluvelly Tank,
Bhadrachalam – Rajahmundry Stretch of River Godavari and
Wazirabad – Vijayawada Stretch of River Krishna) Act, 2008 as early as
on 25.11.2008. The said Act was later repealed by the National
Waterways Act, 2016, but the entire buckingham canal continues to
remain nationalised for the purpose of Inland Waterways. Therefore, the
State Government lacks authority in regularising unauthorised
constructions or encroachments on the banks of Buckingham Canal.
The entire issue was in fact, considered and dealt with by the Hon'ble
First Bench by a series of orders passed in W.P.No.6609 of 2014,
wherein, it has been held that the State Government has no power to
regularise encroachments on the Buckingham Canal or its Banks. It is
pertinent to note that despite nationalization of Buckingham Canal, the http://www.judis.nic.in Bar & Bench (www.barandbench.com)
16
responsibility of removing encroachments still lies upon the State
Government / PWD. The State Government ought to have obeyed the
order of the Apex Court, in true letter and spirit. He further submitted
that he had furnished 'fresh enumeration' on 09.01.2014 and that, it
consists of two enumerated parts. The first is dated 09.01.2014 and the
Second one dated 30.01.2014 (which is in continuation of proceedings
dated 09.01.2014) identifies an additional 259 encroachers. The 1st
petitioner knowing the fact that he is in the Second Part of the
enumerated list dated 30.01.2014 had questioned that notification in
W.P.No.22662 of 2015 and the same was disposed of by an order
dated 28.07.2015.
14. According to the 10th respondent, when it has been identified
that there are 259 encroachers, which fact has been admitted by the
petitioners, suppressing those details and approaching this Court by
way of another writ petition and also not disclosing the fact to the Apex
Court and getting an order that the writ petitioners are not encroachers,
would amount to approaching this Court with unclean hands and that
the petitioners should not be shown any indulgence.
15. The 10th respondent further stated that G.O.Ms.No.163,
Housing (F) Department, dated 28.02.1973 deals with different survey http://www.judis.nic.in Bar & Bench (www.barandbench.com)
17
number and the document filed by the petitioners only indicates that
Survey No.3761/3 in Govindaswamy Nagar was declared a slum,
whereas, the petitioners, however, claim in paragraph no.4 of their
affidavit that they reside in Survey No.3961/3 in Govindaswamy Nagar.
He further submitted that the petitioners have not produced any
notification under Section 11 or any Gazette Notification of a declaration
under Section 11 of the Act, which is mandatory, if the Slum Clearance
Board is acquiring any land. In this case, the land belongs to
Government / PWD and that the contention of the petitioners that there
is total violation of the provisions of the Slum Clearance Act, may not be
attracted to the facts of this case. It is further stated that the protection
from the occupants of a slum area, as provided under Section 29 of the
Act, does not apply at all, if it is the Government or a local body that is
carrying out eviction, as Section 33 of the Act excludes the application
of Chapter VII to the Government or any local body.
16. According to the 10th Respondent, all the encroachers have
got to be evicted and that the contention of the petitioners that the 10th
respondent is also an encroacher is not correct and that he has
constructed the building in accordance with the approved plan and the
land has been purchased in terms of the provisions of the Transfer of http://www.judis.nic.in Bar & Bench (www.barandbench.com)
18
Property Act.
17. Heard the learned counsel for all the parties and perused the
documents placed on record.
18. The sum and substance of the issue on hand is that the
concerned 259 persons to whom the allotments are to be made by the
Tamilnadu Slum Clearance Board are encroachers and some of them
are before this Court. The petitioners for reasons best known to them,
on selective basis, have approached this Court and Apex Court by not
making other petitioners as parties to the proceedings, may be they
would like to squat over the property some how or the other without
allowing the authorities to remove the encroachments.
19. That apart, as could be seen from the documents produced
by the parties, more particularly by the Slum Clearance Board, the entire
area was notified as a Slum area by the Slum Clearance Board as per
G.O.(Ms) No.163 dated 28.02.1973. It is no doubt true that the
petitioners have no title over the property and that they are some of the
persons, who have approached this Court and the Apex Court. A
reading of the order of the Apex Court dated 11.02.2011 in
S.L.P.Nos.25401-25403 of 2009 would make it clear that the Petitioners http://www.judis.nic.in Bar & Bench (www.barandbench.com)
19
have not brought to the attention of this Court about the enumeration of
Second list. On a perusal of the pleadings of the Petitioners, this Court
finds that the Petitioners wanted patta, thereafter, not to remove them
except in accordance with law and if they are allotted another place,
they are willing to shift and finally, they have come forward with a plea
that the place in question does not fall under the encroachment area /
Buckingham Canal and it is a different place and that there are only 625
persons, out of which 366 persons have been allotted an alternative
place.
20. A further reading of the pleadings would make it very clear
that 259 persons have been identified as additional encroachers and
some of them have approached this Court, while others including the
petitioners, who are encroachers on the southern side abutting
Buckingham Canal approached the Apex Court. Even though there is a
notification that the area in question is a Slum, there is no declaration
under Section 11 of the Slum Clearance Act.
21. This Court, on 28.07.2015 in W.P.No.22662 of 2015, filed by
the petitioner therein, questioning the enumerated list dated 30.01.2014
identifying that the petitioner's house is on the southern side of Elango http://www.judis.nic.in Bar & Bench (www.barandbench.com)
20
Street, Govindasamy Nagar, R.A.Puram, Chennai, had disposed of the
said Writ Petition [where one of us, M.V.J. was a party to the Writ
Petition] holding that 'without expressing any opinion on the dispute, we
reserve liberty to the petitioner to make representation to the impugned
order and thereafter, the authorities were directed to take fresh decision'
From the said order and from the pleadings, it is very clear that
petitioners are not the owners of the property and that they had sought
for issuance of patta, not to remove them except in accordance with law,
and, if they are allotted another place, they are willing to shift, and
finally, they have come forward with a plea that the place in question
does not fall under the encroachment area / Buckingham Canal and it is
a different place.
22. It is worth referring to a Full Bench decision of this Court in
W.P.No.1294 of 2009, dated 30.10.2015 (T.K.Shanmugam Vs. The
State of Tamil nadu and others), wherein, the Full Bench has
exhaustively dealt with the encroachment on water bodies, relevant
portions of which, are extracted hereunder:
"12. A Public Interest Litigation was filed by one Mr.L.Krishnan seeking for a direction against the Government and the Revenue Officials to remove encroachments made by certain private parties in a Odai Poraomboke in Villupuram District. While disposing http://www.judis.nic.in of the Writ Petition, the Division Bench pointed out that Bar & Bench (www.barandbench.com)
21
ponds, tanks and lakes have been an essential part of the people's natural resources, however in recent years, these have been illegally encroached by unscrupulous persons and this has had adverse effect on the lives of the people. Further, it was pointed out that day in and day out, many petitions are filed by way of Public Interest Litigation alleging encroachments into ponds/tanks/lakes/odai Poramboke etc., in different parts of the State, more particularly in villages. Having regard to the acute water scarcity prevailing in the State of Tamil Nadu, it was pointed out that a time has come where the State has to take some definite measures to restore the already earmarked water storage tanks, ponds and lakes as disclosed in the revenue records to its original states as part of its rain water harvesting scheme. The Court took judicial notice of the action initiated by the State Government by implementing the water harvesting scheme as a time bound programme. It was further pointed out that it is imperative that such natural resources provided for water shortage facilities are maintained by the State Government by taking all possible steps both by taking preventive measures as well as by removal of unlawful encroachments. After referring to the decision of the Hon'ble Supreme Court in the case of Hinch Lal Tiwari Vs. Kamal Devi reported in 2001 (6) SCC 496, it was held that the endeavour of the State should be to protect the material resources like Forests, Tanks, Ponds etc., in order to maintain ecological balance, which would pave the way to provide a healthy environment and enable the people to enjoy a quality life, which is essence of the right guaranteed under Article 21 of the Constitution. It was further held that in the State of Tamil Nadu having regard to the precarious water situation prevailing in the major part of the year, it is imperative that such noted water storage resources, such as tanks, odai, oornis, canals etc are not obliterated by encroachers. Reference was also made to Article 48-A of the Constitution. The Division Bench after referring to the other decisions of the Hon'ble Supreme Court in Kesavananda Bharathi Vs. State of Kerala reported in 1973 (4) SCC 225; Animal and Environment Legal Defence Fund Vs. UOI, reported in 1997 (3) SCC 549; M.C.Metha Vs. UOI reported in 1997 (3) SCC 715, issued certain directions. The directions issued were two fold, firstly, a positive direction to remove the encroachments over odai poramboke which was complained of in the said Public http://www.judis.nic.in Interest Litigation, secondly, a direction to the State Bar & Bench (www.barandbench.com)
22
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......
18. In the case of Jagpal Singh (Jagpal Singh Vs. State of Punjab - 2011 (11) SCC 396), certain trespassers unauthorisedly occupied an extent of land in a village which was a pond and the trespassers filled the village pond and made construction thereon. Action for eviction of the unauthorised occupants was initiated, but the Collector, Patiala, held that it would not be in public interest to dispossess the encroachers and directed the Grama Panchayat to recover the cost of the land, thus regularising the illegality. On appeal by some third parties to the Commissioner, the order of the Collector was set aside, holding that the Grama Panchayat was colluding with the encroachers. The Commissioner held that the village pond has been used for the common purpose of the villagers and cannot be encroached upon by any private parties. Against the order of the Comm, a Writ Petition was filed before the High Court which was dismissed by the learned single Judge and affirmed by the Division Bench. This order was put to challenge before the Hon'ble Supreme Court wherein it was pointed out that the appellants therein were trespassers who illegally encroached on the Grama Panchayat lands by using muscle power and money power in collusion with officials of the Grama Panchayat and such kind of patent illegality must not be condoned and even if houses have been built on the land in question they must be ordered to be removed and the possession of the land must be handed back to the Grama Panchayat. It was further pointed out that many State Governments have been issuing orders permitting allotment of Grama Sabha land to private persons on payment of some money and all such Government Orders are illegal and should be ignored......
20. In the case of R.Lakshmnan (Division Bench of Madurai Bench of Madras High Court in W.P.(MD).No.1496 of 2014, dated 06.08.2014, http://www.judis.nic.in R.Lakshmnan Vs. Government of Tamil Nadu and Bar & Bench (www.barandbench.com)
23
others), a Public Interest Litigation was filed before the Madurai Bench of this Court to restore the capacity of the water bodies as on date of the 1923 survey. The Writ Petition was disposed of by directing the Government to issue appropriate direction which should be mandatory in nature to all local bodies, including Corporation, Municipalities and Panchayats not to grant any planning permission for any construction that is put up in a water body and not to grant approval for any lay out or building plan, if the land is located either in part or in whole, in a water body and directing the Government to contemplate issuing of an order under the Tamil Nadu Town and Country Planning Act making it mandatory to enclose a certificate of the Revenue Authority along with building plan application, certifying that no part of the land is located in a water body and wrong information if provided, the person who issued the certificate to be held responsible......
21...... General Instructions given for Land Administration states that encroachments in poramboke lands like water sources/courses, gracing grounds, temple lands, kalam, etc., are considered as highly objectionable and these encroachments have to be evicted. The Revenue, Public Works and Highways Department authorities and local bodies like Municipalities and Corporation have been empowered to evict unauthorised encroachments after giving due notice under the Tamil Nadu Land Encroachment Act, 1905, for which a District Level Committee under the Chairman of the District Collector has been constituted...... 30...... It is to be noted at this juncture, during summer, water bodies would appear dry, but during rainy days/monsoon, stream would be in place to drain/take the water to the water bodies and percolation takes place which in all probability results in surcharge of ground water. Thus, on account of the default of the Revenue officials or on account of collusion of official machinery with encroachers can hardly be a premium to justify encroachments. The theory of adverse possession, would not stand attracted in such cases. The encroachers are in fact trespassers into Government property. In terms of the Standing Orders of the Board of Revenue, the Village Administrative Officer has a duty to report any encroachment in any http://www.judis.nic.in Government land in his village. The present scenario of Bar & Bench (www.barandbench.com)
24
rampant encroachment is on account of the failure of the Revenue Administration to protect Government lands...... If such acts of trespassers/encroachers are to be treated as pardonable and be rewarded for their illegal act in the form of regularisation/accommodation to say the least, it would be an absolute degradation and collapse of the public trust vested with the State to protect the lands and water bodies. If the Government is interested in allocating the poor and downtrodden, it should bring out a scheme for rehabilitating them and not to condone their act of trespass, reclassify the law and then grant patta to those encroachers...... 32...... Thus it is the duty of the State to protect, conserve and augment traditional water retaining structures...... 44...... Moreover, Article 51-A of the Constitution of India enjoins that it shall be the duty of every citizen of India, inter alia, to protect and improve the national environment including forests, lakes, rivers, wildlife and to have compassion for living creatures. This Article is not only fundamental in the governance of the country but a duty on the State to apply these principles in making laws and further to be kept in mind in understanding the scope and purport of the fundamental rights guaranteed by the Constitution including Articles 14, 19 and 21 of the Constitution and also the various laws enacted by Parliament and the State Legislatures. But unfortunately, the State, by passing the above said Government Orders, actively encourages encroachers of water bodies, to indulge in illegal and unlawful activities and also bent upon regularising their possession which has to be deprecated.
45...... and that the tanks which do not fall within the purview of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007, also require protection from encroachment and any encroachment made in such tanks or water bodies have to be removed by following the provisions of the Tamil Nadu Land Encroachment Act, 1905...... "
http://www.judis.nic.in 23. Further, a Division Bench of this Court, by an order dated Bar & Bench (www.barandbench.com)
25
27.11.2015, in W.P.No.1295 of 2009, following the above said Full
Bench decision of this Court, has held as under:
"3...... Cases of encroachment on water bodies are really alarming. Water bodies are potential source for drinking water for human and cattle. Only with a view to protect the same and to help the environment and develop ecology, the Government has enacted the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007 (Tamil Nadu Act 8 of 2007). The very object of the Act is to find the exact boundary of each Tank in Tamil Nadu and also to detect encroachments for eviction as per the procedure laid down in the said Act. .. .. Occupation of the water bodies by way of encroachment will deprive water to the public in larger interest ignoring the Public Trust Doctrine...... 17. The Hon'ble Supreme Court as well as this Court, in a catena of decisions, have time and again held that no encroachment should be tolerated over the water bodies which constitute part of the precious natural resources. .... 19...... The fact remains that the encroachers have been issued with eviction notice in accordance with the provisions of the Act. Therefore, the petitioner in the guise of representing the encroachers, has got no vested right to prevent the encroachment being removed, that too, to restore the water body. On the other hand, the encroachers are bound to vacate and hand over vacant possession of the property.
20...... Further, assuming that the said families have been in possession of the property for a considerable period, that would not confer any right on them over the land for the simple reason that admittedly, they are encroachers, that too, in a water body, which needs to be protected in the interest of public...... 26. At this juncture, this Court, taking judicial notice of the fact that even during the hearing of this case, the State of Tamil Nadu is seriously affected by unprecedented floods, i.e. during November 2015, http://www.judis.nic.in and because of that, number of people were dead Bar & Bench (www.barandbench.com)
26
and many people lost their property, is compelled to put its views that the entire loss due to the flood was due to maladministration and the prevailing practices by the authorities as almost all the water bodies and water courses were allowed to be encroached upon resulting in reduction in their flood storing and carrying capacity, forcing the water to deviate from its regular course and enter the residential areas causing devastating effects. The authorities have permitted construction of houses in the water bodies. This resulted in inundation of these areas during flood and all these houses submerged under the flood water. This shows that despite the orders of the Court, the authorities pretend to act swiftly in removing encroachments but only in a selective manner and not in a planned and determined manner.
27. It has become inevitable for this Court to put on record that the authorities in power cannot destroy the water bodies or water courses formed naturally for the benefit of mankind for ever and it is beyond the power of the State to alienate or re- classify the water bodies for some other purposes without compensating the effect of such water bodies.
28. That apart, while answering the reference in a Writ Petition filed at the instance of the petitioner herein, viz., T.K.Shanmugam Vs. State of Tamil Nadu (2015 (5) LW 397), the Full bench of this Court, after considering the various Government Orders and the judgments of this Court and also following the observations and directions issued by the Hon'ble Apex Court, vide order dated 30.10.2015, has held that even the tanks which do not fall within the purview of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007, also require protection from encroachment and any encroachment made in such tanks or water bodies have to be removed by following the provisions of the Act.
29...... Having regard to the acute water scarcity recurring in the State of Tamil Nadu as a whole, we feel that a time has come where the State has to take some definite measures to restore the already earmarked water storage tanks, ponds and http://www.judis.nic.in lakes, to its original status as part of its rain water Bar & Bench (www.barandbench.com)
27
harvesting scheme, which has already been initiated...... "
24. Considering the submissions of the respective parties and
upon perusal of the counter affidavits / status report / report filed by the
respective respondents, this Court is of the view that the petitioners are
encroachers and they are not entitled to reside / continue to occupy in
the present place. It is open to the petitioners to take the alternative site
provided by the Slum Clearance Board within a period of one month
from the date of receipt of a copy of this order and occupy the place
before 15th June 2018, as there is a possibility of the children of these
encroachers, taking up examination in the months of March and April
2018.
25. Also, this Court makes it clear that, if no consent is given by
any of the encroachers within the time stipulated supra, it is open to the
concerned respondent to allot the site to some other person based on
their seniority and that the petitioners cannot plead at a later date, that
they have not been allotted alternative site. Further, this Court is of the
view that there is suppression of facts by the violators, not only before
this Court, but also before the Apex Court. However, taking note of the
arguments advanced by the learned Junior Counsel in a pleasing
manner, we are not inclined to impose any costs. http://www.judis.nic.in Bar & Bench (www.barandbench.com)
28
With the above said directions and observations this Writ Petition
is disposed of. No costs. Consequently, connected miscellaneous
petition is closed. Post under the caption 'for reporting compliance' on
13.07.2018.
(M.V.J.) (S.V.N.J.) 19.02.2018 Speaking order / Non speaking order Index :Yes / No Internet :Yes / No
ssd
To 1. The State of Tamilnadu, Rep. By its Secretary, Department of Housing and Urban Development, Fort St. George, Chennai – 600 009
2. The State of Tamilnadu, represented by its Secretary to Government, Public Works Department, Fort St. George, Chennai- 600009
3. The Chairman and the Managing Director, Tamilnadu Slum Clearance Board, Kamarajar Salai, Chennai – 600 009
4. The Collector of Chennai, Rajaji Salai,Chennai – 6000 001
5. The Commissioner, Corporation of Chennai, Ripon Buildings, Chennai – 600 003
6. The Executive Engineer, PWD, (WRO) (Araniyar Basic Division) Chepauk, Chennai – 600 005
7. The Assistant Commissioner, Zone – XIII, Chennai Corporation, Dr.Muthulakshmi Road, Adayar, Chennai – 600 018
8. The Executive Engineer, Division – VI, Tamilnadu Slum Clearance Board, Chennai – 600 018
http://www.judis.nic.in9. The Tahsildar, Mylapore Taluk,Chennai – 600 028 Bar & Bench (www.barandbench.com)
29
M.VENUGOPAL, J. and S.VAIDYANATHAN, J.
ssd
W.P.No.31114 of 2017 and W.M. P.No.34112 of 2017
19.02.2018
http://www.judis.nic.in