Sholinganallur Kumaran Nagar Pakuthi Vaal Makkal Nala Munnetra Sangam v. State of Tamil Nadu rep. by the Secretary to Government Revenue Department

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.1.2008 CORAMTHE HONOURABLE MR.JUSTICE P.D.DINAKARAN ANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIW.A.No.1081 of 2006, MP.No.2 and 4/2006 in WA 1081/2006W.P.Nos.27143 to 27146 of 2006 & MP.No. 1/06 in WP.No. 27413 to27143/06 and Cont.P.No.1000 of 2006W.A.No.1081 of 2006Sholinganallur Kumaran Nagar Pakuthi Vaal Makkal Nala Munnetra Sangamrep. by its Secretary T.ManiPilliar Koil 2nd StreetKumaran Nagar, SholinganallurChennai 600 119...AppellantVs.1. State of Tamil Nadu rep. by the Secretary to Government Revenue Department, Secretariat Fort St.George, Chennai 9.2. The Special Commissioner and Commissioner of Land Acquisition Chepauk, Chennai 600 005.3. The District Collector Kancheepuram District Kancheepuram.4. Haaciendaa Infotech and Realtors (P) Ltd. Rep. by its Director RM.Palaniappan Rani Seethai Hall, V Floor 603, Anna Salai, Chennai 6...Respondents W.P.No.27143 of 2007 https://hcservices.ecourts.gov.in/hcservices/ Gandhi Nagar Residence Welfare Assocationrep. by its President BubalanDurgai Amman Koil AreaOld Mahabalipuram RoadGandhi Nagar, SholinganallurChennai 600 119...Petitioner Vs.1. The District Collector Kanchipuram District Kanchipuram.2. The Tahsildar Tambaram Taluk Tambaram, Chennai 600 045.3. The Revenue Inspector Pallikaranai Firka Sholinganallur Chennai 600 119.4. The Village Administrative Officer Sholinganallur-I Sholinganallur, Chennai 600 119.5. The Executive Officer Sholinganallur Special Village Panchayat Sholinganallur Chennai 600 119...RespondentsW.P.Nos.27144 to 27146Kanniappan..Petitioner inW.P.No.27144/06Subramani..Petitioner inW.P.No.27145/06Chockalingam..Petitioner inW.P.No.27146/06Vs. https://hcservices.ecourts.gov.in/hcservices/

1. The District Collector Kanchipuram District Kanchipuram.2. The Tahsildar Tambaram Taluk Tambaram, Chennai 600 045.3. The Revenue Inspector Pallikaranai Firka Pallikarani Chennai 601 302.4. The Village Administrative Officer Sholinganallur Village Sholinganallur, Chennai 600 119.5. The Executive Officer Sholinganallur Village Special Panchayat SholinganallurRespondents in Chennai 600 119...all W.Ps.Cont.P.No.1000 of 2006Haaciendaa Infotech and Realtors (P) Ltd.rep. by its Director RM.PalaniappanRani Seethai Hall, V Floor603, Anna Salai, Chennai 6...PetitionerVs.1. S.Aathikeshaiah Secretary to Government Revenue Department Secretariat, Fort St.George Chennai 600 009.2. Rameshram Mishra Special Commissioner and Commissioner for Land Acquisition Chepauk, Chennai 5. https://hcservices.ecourts.gov.in/hcservices/

3. Pradeep Yadav The District Collector Kancheepuram District Kancheepuram...RespondentsPRAYER:Appeal under Clause 15 of the Letters Patent againstthe order of this Court dated 13.7.2006 made in W.P.No.21140 of2006.The Writ Petition presented under Article 226 of theConstitution of India for the issuance of a writ of mandamusdirecting the respondents to forthwith remove the encroachmentsin eri porum boke land situate in Survey No. 428 and 439 (part)at Sholiganallur Village Tambaram, Kancheepuram District andprevent any encroachment in future by appropriately protectingit.W.P.No.27143 of 2006 under Article 226 of the Constitutionof India for a writ of Prohibition prohibiting the respondentsfrom evicting the residents from their respective dwellings putup in the schedule Area, consisting of more than 700 familieswithout following the procedure established by law.Schedule of propertyAll part and parcel of land and the 700 thatched housesthereon in the area known as “Gandhi Nagar” Comprised in SurveyNo. 439 in Sholanganallur Village Tambaram Taluk, KancheepuramDistrict, in the Schedule Property.W.P.Nos.27144 to 27146 of 2006 under Article 226 of theConstitution of India for a writ of Certiorari to call for therecords relating to the notice under Section 7 of the Land Encroachment Act, 1905 dated 21.7.2006, issued by thethird and fourth respondent and the consequential notice dated6.8.2006 under Section of the Land Encroachment Act, 1905 inrespect of WP.No. 27413/06 and oral insturuction inrespect ofWP.No. 27144/06 to 27446. issued by the second respondent withrespect to the Schedule property and quash the same. https://hcservices.ecourts.gov.in/hcservices/ Schedule of PropertyAll the part and parcel of land and thatched house there onbearing Door No. 310, 324 and 84 respectively Gandhinagar,Yerikarai (Kulakkarai Salai) comprised of Survey No. 439/3A1A1A1measuring to an extend of 4.5 cents, 2.5 Cents and 2.0 Centsrespectively in Sholinganallur Village, Tambaram Taluk,Kancheepuram District in the Schedule property.Contempt Petition filed under Section 10 & 12 of ContemptAct against the wilful disobedience of the order of this Courtdated 13.7.2006 made in W.P.No.21140 of 2006.-----For Appellant in WA : Mr.Ravi Anantha PadmanabhanFor Petitioners in all W.Ps. : Mr.C.RajagopalanFor Contempt Petitioner & R4 in W.A.No.1081/06 : Mr.Satish ParasaranFor R1 to R3 in W.A.No.1081/06, R1 to R4 in all W.Ps.& R1 to R3 in Cont.Petition : Mr.K.Ilango, Spl.G.P.For R5 in all W.Ps. : Mr.J.Raja KalifullaJ U D G M E N T(Delivered by P.D.DINAKARAN,J.)Whether the appellant in writ appeal and the petitioners inrespective writ petitions, who are alleged to be unauthorisedoccupants of the lands, being the property of the Government,are liable to be evicted under the provisions of the LandEncroachment Act, 1905 (in short the 'Act') is a question thatarise for our consideration in the above batch of cases.2.1. The writ appeal is preferred by a third party, viz. https://hcservices.ecourts.gov.in/hcservices/ Sholinganallur Kumaran Nagar Pakuthi Vaal Makkal Nala MunnetraSangam, a registered body under the provisions of the SocietiesRegistration Act against the order dated 13.7.2006 made inW.P.No.21140 of 2006, preferred by a company/fourth respondentin the writ appeal, which proposed to set up an industry forInformation Technology Park of international standard in theCyber corridor established by the State at SholinganallurVillage, Tambaram Taluk, Kancheepuram District.2.2. According to the writ petitioner in W.P.No.21140 of2006, adjacent to the land allotted to them, there are Eri andPeriya Eri poramboke lands (water bodies) in Survey Nos.428 and439 (Part) at Sholinganallur Village, Tambaram KancheepuramDistrict and the same act as a water body for harvesting rainwater around the catchment area. But, unfortunately, the saidwater body have been encroached by the unauthorised occupantswhich compelled the petitioner in W.P.No.21140 of 2006 toapproach this Court seeking a writ of Mandamus directing therespondents therein to forthwith remove the encroachments in EriPoramboke lands situate in Survey Nos.428 and 439 (Part) atSholinganallur Village, Tambaram Kancheepuram District andprevent any encroachment in future by appropriately protectingit.2.3. The learned single Judge, after hearing the learnedGovernment Advocate and based on the written instruction fromthe Collector, ordered the said writ petition, as hereunder:"The statement made by the learned GovernmentAdvocate is recorded. The encroachment is said tobe on the "water body" and it is also aconstitutional duty of every citizen to safeguardthe "water body" under Article 51(A)(G) of theConstitution of India.Therefore, this Court direct the respondentsto remove the encroachment in Eri Porumboke landssituate in Survey Nos.428 and 439 (Part) atSholinganallur Village, Tambaram, KancheepuramDistrict, after following due process of law inorder to preserve the water body, as enshrinedunder Article 51(A)(G) of the Constitution ofIndia."(emphasis supplied) https://hcservices.ecourts.gov.in/hcservices/

2.4. Aggrieved by the said order of the learned singleJudge, a third party, viz. Sholinganallur Kumaran Nagar PakuthiVaal Makkal Nala Munnetra Sangam preferred W.A.No.1081 of 2006on the main ground that the members of the Sangam are residingin the impugned land in Survey Nos.428 and 439 (Part) for morethan thirty years and therefore, before evicting them, they areentitled for proper notice to explain their case, ascontemplated under the provisions of the Act.2.5. The above writ appeal came for admission on 22.8.2006.However, the same was not admitted, but, stood adjourned fromtime to time. In the meanwhile, the petitioner in W.P.No.21140of 2006 moved Cont.P.No.1000 of 2006 for non compliance of theorder dated 13.7.2006 made in W.P.No.21140 of 2006, complainingthat the Collector has not initiated any action to removeencroachments in Eri poramboke land situated in S.No.428 and 439(Part) of Sholinganallur Village, Tambaram Taluk, KancheepuramDistrict. When the contempt came up for admission on 3.1.2007,the learned Government Advocate took notice. As the respondentshad not taken any action, statutory notice was ordered torespondents on 23.1.2007. 2.6. By that time, four more writ petitions came to befiled. W.P.No.27143 of 2006 was filed by Gandhi NagarResidents Welfare Association on behalf of 700 families forissue of a writ of Prohibition prohibiting the respondents fromevicting the respondents from their respective dwellings put upin the Schedule area, consisting of more than 700 families,without following the procedure established by law.W.P.Nos.27144 to 27146 of 2006 were filed by individualoccupants challenging the respective notices dated 27.1.2006issued under Section 7 of the Act and the consequentialproceedings passed under Section 6 of the Act on the ground thatthey are residing in S.No.439, Sholinganallur Village for morethan sixty years and therefore, the impugned land should havebeen classified as natham land and the Government shouldregularise the encroachment. 2.7. It is pertinent to note in this regard that eventhough the petitioner Sangam in W.P.No.27143 of 2006specifically claims that the impugned land in S.No.439 has beenoccupied by more than 700 thatched houses, they had furnished https://hcservices.ecourts.gov.in/hcservices/ in the writ petition only the name and addresses of 240 persons.In W.P.Nos.27144 to 27146 of 2006, where the notice issued underSection 7 of the Act and the consequential order passed underSection 6 of the Act were challenged, the said petitionerscontend that the Revenue Inspector has no authority to issue theimpugned notice under Section 7 of the Act. Hence, these writpetitions, writ appeal and the contempt petition were heardtogether and disposed of jointly.3. Heard all the parties.4. For the purpose of convenience, the appellant and thewrit petitioners are referred to as the unauthorised occupantsof the land, being the property of the Government, which is notdisputed by them.5.1. With regard to the contention advanced by the learnedcounsel for the appellant that the members of the appellantSangam are residing for more than 30 years in Survey Nos.428 and439 (Part) and therefore, they should not be evicted without anynotice in compliance of the procedure contemplated under theAct, it would be appropriate to refer to the order of thelearned single Judge, wherein, the Collector was directed toremove the encroachment in Eri poramboke in S.No.428 and 439Part, after following the due process of law, which includes thecompliance of the procedure contemplated under the provisions ofthe Act, viz. the issuance of a notice under Section 7 of theAct and holding a summary proceedings. 5.2. On the other hand, the challenge made to the noticeissued under Section 7 of the Act and the consequential orderspassed under Section 6 of the Act in W.P.Nos.27144 to 27146 of2006 runs counter to the submissions made by the appellant, asthe Collector had rightly issued a notice under Section 7 of theAct to the petitioners in compliance of the direction of thelearned single Judge, viz. to follow the due process of lawbefore removing the encroachments in the Eri poramboke.5.3. Ponds, tanks and lakes are being used by the people,particularly in rural areas, for collecting rain water for theuse of various purposes. They form an essential part of thepeople's natural resources. It provides proper and healthyenvironment. The encroachment upon such places by unscrupulouspersons have an adverse effect on the lives of the people. https://hcservices.ecourts.gov.in/hcservices/ Therefore, it is imperative that such natural resourcesproviding for water storage facilities shall be maintained bytaking all possible steps both by taking preventive measures aswell as by removal of unlawful encroachments. The legal bodiesand the revenue authorities are under an obligation to protectthe public properties and to remove the encroachments. Ofcourse, while doing so, the authorities are under statutoryobligation to follow the due process of law, which has beenrightly taken note of by the learned single Judge, while givingappropriate direction in the order under appeal.5.4. The Apex Court in Hinch Lal Tiwari v. Kamala Devi &Others [2001 (6) SCC 496], has laid down the law relating tothe maintenance of the ecological balance in order to providehealthy environment and enable the people to enjoy the lifeguaranteed under Article 21 of the Constitution of India.5.5. Following the decision of the Apex Court in Hinch LalTiwari case, a Division Bench of this Court in L.Krishnan v.State of Tamil Nadu [(2005) 4 CTC 1], where the Government landwas encroached, viz. Eri poramboke or Periya eri poramboke(water bodies), directed the Government to remove all theillegal encroachments from the water bodies, viz. ponds, lakes,eri and eri poramboke, which would adversely affect the lives ofthe people, in order to maintain ecological balance, which isprotected under Article 48-A of the Directive Principles ofState Policy and cast a duty on the State to protect and improvethe natural environment under Article 51-A(g).5.6. Concededly, the petitioners have encroached theimpugned land, which is a water body. Even though it is nowshown as a residential area for the purpose of the guidelinevalue, we are of the considered opinion that the same would notchange the classification and character of the land as per therevenue records. The unauthorised occupation by the encroachersin water body, viz. the area which is meant for public purposegoes a long way in thwarting the goals sought to be achievedunder Article 48A of the Constitution of India, referred toabove. 5.7. Mr.K.Ilango, learned Special Government Pleader,appearing on behalf of the Government, on instruction, fairlyconcedes that the Collector would adhere to the procedure https://hcservices.ecourts.gov.in/hcservices/ contemplated under the provisions of the Act, viz. issuance ofnotice under Sections 5 and 7 of the Act before passing an orderunder Section 6 of the Act strictly and also in conformity withthe principles of natural justice. Hence, the only apprehensionof the learned counsel for the appellant and the writpetitioners fails.6.1. Incidentally, the learned counsel for the appellantalso contends that the unauthorised occupants are entitled tothe benefit of G.O.Ms.No.854, Revenue Department, dated30.12.2006 for alternative accommodation. In our consideredopinion, the same cannot be construed as a promise by the publicauthorities, particularly when the Act empowers the authoritiesto remove the unauthorised occupants of the lands being theproperty of the Government. 6.2. Once we disagree that there is any promissory estoppelon the part of the authorities either against the evictionproceedings or in favour of providing alternative accommodationto the unauthorised occupants, the unauthorised occupants arenot clothed with any legal right for rehabilitation or seekingany alternative accommodation. The provision of alternativeaccommodation, therefore, is purely a policy decision to betaken by the Government and decided by the authoritiesconcerned. Whether the petitioners are entitled to or not, itmay not be proper for this Court to indicate anything in favourof the unauthorised occupants in the present proceedings. 6.3. At this point, it is pertinent to note that theCollector has stated that encroachments in water bodies were sorampant and it may not be possible to chalk out rehabilitationscheme for all such encroachers and as there was a ban onassignment of land within 32 kms from the Chennai city limit, itwould not be possible to provide alternative site to theseencroachers. 6.4. In view of the above, on receipt of the notice underSection 7 of the Act as to why they should not be evicted, theunauthorised occupants are at liberty to submit theirexplanation objecting to the impugned eviction proceedings,placing reliance on G.O.Ms.No.854, Revenue Department, dated30.12.2006 and thereafter, it is for the Collector to decide onthe claim of the unauthorised occupants and pass appropriateorders as expeditiously as possible, in the manner known to law. https://hcservices.ecourts.gov.in/hcservices/

7. With regard to the other contention that the RevenueInspector has no authority of law, we do not find any substancein the same, as the second proviso to Section 7 of the Act makesit clear that the Revenue Inspector or any officer specified inthat regard is also authorised to issue a notice to theunauthorised occupants. Therefore, all the contentions advancedon behalf of the petitioners in W.P.Nos.27144 to 27146 of 2006fail.8. That apart, we wonder how a writ of Prohibition ismaintainable in law prohibiting the authorities, viz. theCollector who proposed to exercise his lawful power conferredunder the Act to remove the unauthorised occupants of the land,being the property of the Government. The prayer and the reliefsought for in this regard, in our considered opinion, is totallymisconceived and also bereft of facts, as the contention thatthere are 700 families residing in the impugned land isuntenable on the facts furnished by the petitioner inW.P.No.21743 of 2006. 9. In the circumstances, we do not see any reason tointerfere with the order of the learned single Judge nor anymerit in the grievance much less the relief sought for either bythe writ petitioners or the writ appellant. Therefore, except toconfirm the direction of the learned single Judge to takeappropriate steps to remove the encroachment in eri poramboke inS.Nos.428 and 439 (Part), Sholinganallur Village, TambaramKancheepuram District, of course, after following due process oflaw, in order to preserve the water body as enshrined underArticle 48A and cast duty under 51-A(g) strictly in accordancewith law, viz. following the procedure prescribed under the Actand in compliance of the principles of natural justice, nofurther order is required. 10. As the respondents have taken possession, we do notsee any contempt, and accordingly, the same is closed. https://hcservices.ecourts.gov.in/hcservices/ In the result, writ appeal and writ petitions are disposedof. No costs. The contempt petition is closed. Consequently,M.P.Nos.1 of 2006 in W.P.Nos.27143 to 27146 of 2006, M.P.Nos.2and 4 of 2006 in W.A.No.1081 of 2006 are closed.kplSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo1. The Secretary to Government Revenue Department, Secretariat Fort St.George, Chennai 9.2. The Special Commissioner and Commissioner of Land Acquisition Chepauk, Chennai 600 035.3. The District Collector Kancheepuram District, Kancheepuram.4. The Tahsildar Tambaram Taluk Tambaram, Chennai 600 045.5. The Revenue Inspector Pallikaranai Firka Sholinganallur, Chennai 600 119.6. The Village Administrative Officer Sholinganallur-I Sholinganallur, Chennai 600 119.7. The Executive Officer Sholinganallur Special Village Panchayat Sholinganallur Chennai 600 119.•2 ccs to M/s. Sathish Parasaran, Advocatae sR 4006•One cc to Mr. K. Ravi Ananda Padmanaban, Advocate sR 3842RS (co)sg 20/02/08W.A.No.1081 of 2006, W.P.Nos.27143 to 27146 of2006 & Cont.P.No.1000 of 2006 29.1.2008.