Kaalvaithurai Kudisai Vazh Makkal Pothu Nala Sangam (Reg.No.378/1991) v. The Managing Director

6. The Managing Director, Chennai Metropolitan Water Supply and Sewerage Board, Chennai – 600 002. ..RespondentsPRAYER: Petition filed under Article 226 of theConstitution of India for the issuance of a writ ofcertiorarified mandamus to call for the records relatingto the order dated 26.05.2009 issued by the 3rd respondentherein in Na.Ka.No.03/57403/08; to quash the same andconsequently, direct the 3rd and 4th respondents herein togrant pattas to the members of the Petitioner Associationand regularize the encroachments in Kaalvaithurai area inSurvey Nos. 62, 63/1 (Part) and 63/2 (Part), EgmoreVillage, Egmore-Nungambakkam Taluk, Chennai in terms ofG.O.Ms.No.854 dated 30.12.2006 read with G.O.Ms.No.579dated 03.10.2008 issued by the 1st respondent herein andto issue such further or other orders that are necessaryand proper to meet the ends of justice. For Petitioner :: Mr.N.G.R.Prasad for Mr.K.ElangoFor Respondents – 1 to 3:: Mr.J.Raja Kalifulla, Govt. Pleader For Respondent – 4:: Mr.L.N.PraghasamFor Respondent – 5 :: Mr.Jai Venkatesh For Respondent – 6 :: Mr.I.Paranthaman O R D E R THE HON’BLE THE CHIEF JUSTICE The petitioner is a registered association constituted for thewelfare of the hutment dwellers of an area known as Kaalvaithuraisituated at Water Tank Road in Kilpauk area of Chennai. Thisassociation, through its President has filed this writ petition tochallenge the order dated 26th May, 2009 passed by the 3rd respondent –District Collector, Chennai. The petition thereafter seeks to directthe 3rd respondent and the 4th respondent (Municipal Commissioner ofChennai) to grant pattas to the 772 members of the petitionerassociation and to regularize their encroachments in KaalvaithuraiSalai situated near Aspiran Garden in S.Nos.62, 63/1 (part) and 63/2(part) of Egmore Village, Egmore – Nungambakkam Taluk, Chennai interms of G.O.Ms.No.854 dated 30th December, 2006 read withG.O.Ms.No.579 dated 3rd October, 2008 issued by the 1st respondentGovernment of Tamil Nadu. The 2nd respondent to the petition is theState of Tamil Nadu through its Public Works Department, 5threspondent is the Tamil Nadu Slum Clearance Board and the 6th https://hcservices.ecourts.gov.in/hcservices/ respondent is the Managing Director of the Chennai Metropolitan WaterSupply and Sewerage Board (hereinafter referred to as “CMWSSB”). 2. The above referred to land on which the hutments of these 772persons are situated admittedly belongs to the 6th respondent CMWSSB.The Managing Director of the CMWSSB has opposed this petition byfiling his counter affirmed on 9th June, 2009 and the DistrictCollector, Chennai has also defended her order, which is impugnedherein, by her counter affirmed on 15th June, 2009. The President ofthe petitioner association has filed a rejoinder to these affidavits.All necessary documents and orders are filed by the parties by way oftyped sets of papers. The petitioner association has also reliedupon the photographs of the structures which are occupied by itsmembers, whereas the respondents have relied upon the photographs ofthe tenements which are offered as alternative accommodation to thoseoccupants who are eligible for the alternative tenement. 3. The short facts leading to this petition are as follows: A writ petition bearing W.P.No.1923 of 2008 was filed byFederation of K.K.Nagar Residents’ Welfare Association in publicinterest against the State of Tamil Nadu, CMWSSB and the Tamil NaduSlum Clearance Board seeking steps to remove the unauthorizedencroachments in S.Nos.63/2, 63/3 and 62/2 of Kaalvaithurai Salai,Aspiran Garden, Egmore Village, Kilpauk, Chennai – 10. This was onthe ground that the main water pipeline which supplies water to thecity of Chennai passes through these lands. There are large sizewater supply pumping mains located in these lands and that there isan extension programme under the Krishna Water Project. It wassubmitted that a number of hutment dwellers have encroached uponthese lands, and that too, on the pipelines, which is likely tocontaminate the pure water supply to the residents of the city. Itwas submitted that the structures put up by the encroachers over thepipelines are mostly made up of plastic sheets and other non-degradable substances and they have no proper lavatories, and this isposing a great health hazard to the residents of Chennai. It wassubmitted that initially the number of encroachers was less than 100and the Government of Tamil Nadu was expected to act underG.O.Ms.No.1488 dated 3rd November, 1988 to direct the removal of theseencroachments and rehabilitate all the encroachers who haveencroached upon the land prior to the cut off date viz., 30th June,1984. This was, of course, subject to the fulfilling of the criterialaid down in that Governmental Order. 4. Another writ petition in W.P.No.12288 of 2006 was filed byDr.Ambedkar Nagar Kalvaithurai Salai Colony Kudiyirupor Sangam rep.by its President M.C.Mani having address at Dr.Ambedkar Nagar, 2ndStreet, Aspiran Garden Street, Kalvaithurai Salai Colony, Kilpauk,Chennai – 10. This was filed against the Government of Tamil Nadu,Tamil Nadu Slum Clearance Board, and CMWSSB. This petition sought a https://hcservices.ecourts.gov.in/hcservices/ direction to the 2nd respondent Tamil Nadu Slum Clearance Board togive effect to their commitment to an alternative site at OkkiyamThuraipakkam as contained in their letter dated 8th January, 2006. 5. Both these writ petitions were disposed of by a DivisionBench of the then Chief Justice A.P.Shah, J. and Smt.Prabha Sridevan,J. In its order on the first writ petition viz., W.P.No.1923 of 2008the Division Bench noted that the Slum Clearance Board had carriedout a survey of the encroachers on S.Nos.63/2, 63/3 and 62/2 inpursuance to the order dated 19.8.1991 passed in an earlier writpetition viz., W.P.No.3248 of 1990 and some 88 families were found inthe 1984 Voters’ List. The Court noted that the encroachers had filedtwo suits in the City Civil Court, Chennai one suit bearingO.S.No.5880 of 2004 had been dismissed for non-prosecution, whereasanother suit bearing O.S.No.1305 of 2001 had been decreed with adirection to the CMWSSB not to evict the encroachers except in termsof G.O.Ms.No.1488 dated 3rd November, 1988. The Court recorded thestatement of the Government Pleader that the CMWSSB was agreeable toprovide alternative accommodation to those, whose cases are coveredby G.O.Ms.No.1488 dated 3rd November, 1988. The Court, therefore,passed the following operative order on 12.03.2008: “8. Having regard to the fact that the encroachmentsare likely to endanger the supply of drinking water to thecity of Chennai, we are of the opinion that urgent stepsneed to be taken to remove the encroachments on the landsof the second respondent – CMWSSB. We direct respondents 1and 2 to remove all the encroachers from the lands inSurvey Nos.63/2, 63/3 and 62/2, Kalvaithurai Salai, AspiranGarden, Egmore Village, Kilpauk, Chennai – 10 within aperiod of six months from today. It is needless to say thehutment dwellers who are in a position to produce the proofregarding their occupation of any portion of the said landsprior to the cut-off date, viz., 30.06.1984 will beentitled to the alternative accommodation as perG.O.Ms.No.1488 dated 03.11.1988. It is left to the StateGovernment to decide whether the encroachers who haveoccupied the lands subsequently to the cut-off date shouldbe given any alternative accommodation or not.” 6. As stated above W.P.No.12288 of 2006 sought alternativeaccommodation in terms of G.O.Ms.No.1488 dated 3rd November, 1988. TheDivision Bench, therefore, by its order passed on the same day viz.,12.03.2008 disposed of that petition after noting its order passed inW.P.No.1923 of 2008 that it had directed the removal of encroachmentsand to provide alternative accommodation to the eligible slumdwellers in terms of G.O.Ms.No.1488 dated 3rd November, 1988. 7. Another Writ Petition No.34592 of 2007 was filed by the sameDr.Ambedkar Kalvaithurai Salai Colony Kudiyiruppor Sangam, now https://hcservices.ecourts.gov.in/hcservices/ represented by its Secretary Mr.I.Alexander Selvaraj. This petitionsought that the respondent – District Collector, Commissioner,Municipal Corporation of Chennai, CMWSSB and Tamil Nadu SlumClearance Board restore the petitioner Sangam members’ dwellinghutment units situated in those aforesaid parcels of land. Thepetition was dismissed by the same Division Bench by referring itsearlier order passed in W.P.No.1923 of 2008 and observing that thoseencroachers who were on the site on 30th June, 1984 will be entitledto the protection of G.O.Ms.No.1488 dated 3rd November, 1988. 8. The order passed in W.P.No.1923 of 2008 was challenged inPetition for Special Leave to Appeal (Civil) No.20124/2008 before theApex Court. The Division Bench of the Apex Court consisting of theHon’ble the Chief Justice and Hon’ble Mr.Justice P.Sathasivam on26.09.2008 passed the following order thereon. “O R D E R“The learned counsel appearing for the Tamil Nadu Slum ClearanceBoard says that the Members of the petitioner Association have beengiven alternative accommodation at Kannagi Nagar in OkkiamThoraipakkam and the petitioners may move to the newly allottedplace. The petitioner may shift to the alternative place offered tothem.Subject to that the SLP is disposed of.” 9. The present petitioner Sangam (i.e., Society) through itsSecretary A.Bhoopalan filed one earlier writ petition bearingW.P.No.30792 of 2008. This petition sought a direction as per theorder of this Court in W.P.No.1923 of 2008 dated 12th March, 2008 toprovide alternative accommodation to those who have encroached after30th June, 1984 on S.Nos.63/2, 63/3 and 62/2 of Kalvaithurai Salai,Aspiran Garden, Egmore and Purasawalkam Village, Kilpauk, Chennai –10. The Division Bench consisting of V.Dhanapalan, J. andM.Sathyanarayanan, J. noted the order in W.P.No.1923 of 2008 andobserved that the order had made it clear that it was left to theState Government to take a decision as to whether the encroachers whohave occupied the lands subsequent to the cut-off date should begiven any alternative accommodation or not. The Court, however, notedthat the petitioner Sangam has not enclosed any proof regarding theirclaim for alternative accommodation to show whether they are inoccupation of the land in question. The Court, however, granted themliberty to file any proof for their claim to the respondents withintwo weeks, and disposed of that petition by its order dated 30thDecember, 2008. 10. One more writ petition by Samidosspuram Harijan KudiyirupporNala Sangam bearing W.P.No.737 of 2009 was filed praying not todisturb the occupants of the members of the petitioner Sangam uponS.Nos.63/2, 64 and 3150/2 of Aspiran Garden, Egmore and Purasawalkam https://hcservices.ecourts.gov.in/hcservices/ Village, Kilpauk, Chennai – 10. They claimed to be residing intothose lands over 100 years. The matter was heard by S.J.Mukhopadhaya,Acting Chief Justice and V.Dhanapalan, J. The Court noted that nodocument relating to the right or title was produced and in theabsence of the same no protection could be given. The Court dismissedthe petition on 21.01.2009, however, observed that the order will notstand in the way of individual members to move before the appropriateauthority/forum. 11. One more petition was thereafter filed by the petitionerSangam bearing W.P.No.2825 of 2009. This petition for the first timeprayed that the action of the respondents to vacate them was illegaland contrary to G.O.Ms.No.854 dated 30.12.2006. It also sought adirection to respondents 3 and 4 i.e., the District Collector,Chennai and the Municipal Commissioner, Corporation of Chennai togrant pattas to the members of the petitioner Sangam and toregularize their encroachments in S.Nos.62, 63/1 (part) and 63/2(part) of Egmore Village, Egmore-Nungambakkam Taluk, Chennai in termsof G.O.Ms.No.854 dated 30.12.2006 read with G.O.Ms.No.579 dated03.10.2008. This petition first came before S.J.Mukhopadhaya, ActingChief Justice and V.Dhanapalan, J., who by their order dated 12thFebruary, 2009 restrained the respondents from carrying out furtherevictions. The petition, thereafter, came before a Division Benchconsisting of one of us (H.L.Gokhale, C.J.) and F.M.IbrahimKalifulla, J. The petition was stoutly opposed by the respondents byfiling a counter. The respondents referred to the judgment inW.P.No.1923 of 1998 and that it was left undisturbed by the ApexCourt. It was pointed out that this very Association had filedearlier referred to W.P.No.30792 of 2008 which sought that therespondents should go beyond the cut-off date. It was also pointedout that the respondents had taken steps to shift all the eligibleoccupants to the colonies which have been constructed. Last but notthe least, it was submitted that once a finding of fact was given, itwas not open to re-open the same question once again. 12. The Division Bench, however, noted that it was a major humanproblem wherein some 772 families were sought to be evicted. TheCourt noted the submission of the petitioner’s counsel that they werenot represented in the earlier matters (though this was disputed bythe respondents). The Court, therefore, was of the view that anopportunity should be given to the members of the petitioner Sangamand their representation dated 7th February, 2009 ought to be lookedinto by the District Collector, Chennai and be decided once and forall. The Court permitted the petitioner Sangam to furnish additionalparticulars, if they wanted to furnish, within two weeks, and theDistrict Collector was asked to decide the representation within fourweeks thereafter by a speaking order. The occupants were to beprotected in the meanwhile. This representation has been consideredby the District Collector, Chennai. The Collector has issued a noticeof enquiry to the petitioner Sangam, recorded the statement given by https://hcservices.ecourts.gov.in/hcservices/ the President of the petitioner Sangam, and thereafter, passed anorder on 26th May, 2009 to the effect that the request made by theSangam cannot be granted. It is this order dated 26th May, 2009, whichis under challenge in the present writ petition. 13. Submissions by the parties:- (a) Mr.N.G.R.Prasad, learned counsel appearing for thepetitioner association submitted that when the High Court directedthe Collector to afford a hearing to the petitioner association, theCollector was expected to consider the submission of the petitionerin all seriousness. He submits that though the members of thepetitioner association had furnished the documents to show their longstay on the disputed survey numbers, to claim the pattas theCollector has not considered this material at all. The statement ofthe President of the petitioner association was recorded on 26th May,2009, and on the same day, the impugned order came to be passed. TheCollector had in fact met the members of the District Level Committeeon the previous day i.e., on 25th May, 2009 with regard toregularization, and therefore, the opportunity afforded could not besaid to be a genuine opportunity. The decision was in fact pre-determined. (b) It was then submitted by Mr.N.G.R.Prasad that whether theland bearing these survey numbers was required in public purpose wasto be decided by the concerned Government Officers as perG.O.Ms.No.854 dated 30th December, 2006. In the instant case,initially writ petition bearing no. W.P.No.1923 of 2009 was filed atthe instance of some other residents of another housing society. Itwas disputed on behalf of the petitioner association that at anypoint of time there was any complaint of contamination or leakage ofwater because of occupation by the encroachers in the concernedsurvey numbers. (c) It was then submitted by Mr.N.G.R.Prasad that the pipe linesat Kilpauk had been laid during the British period. The latest pipelines were laid for improving the water supply during 1996 and 2004.These pipe lines are very much below the ground level. Besides, thefourth respondent/Corporation of Chennai was permitted to lay tarroad in this area in the year 2005. It was, therefore, submitted thatthe CMWSSB was not acting on its own volition, but at the behest ofvested interests. (d) Lastly, it was submitted that the facilities at KannagiNagar were inadequate. There was a problem of adequate drinking waterand electricity. The persons concerned were well settled in Kilpaukarea for the last so many years doing small sundry jobs and now theywill be required to go to a place which is situate at a distance ofabout 20 kilometers, which will be totally inconvenient to them, https://hcservices.ecourts.gov.in/hcservices/ since, they are all small wage earners. Even the 132 families who hadshifted to Kannagi Nagar have also now returned to Kaalvaithurai. 14. The submissions of Mr.Prasad were stoutly countered byMr.Raja Kalifulla, learned Government Pleader in the following way -(a) Countering the first submission of Mr.Prasad, Mr.RajaKalifulla submitted that the material placed by the petitionerassociation has been considered by the Collector, and the Collectoralso held a meeting with the concerned Government Officers on 25thMay, 2009, which was necessary as per G.O.Ms.No.854 dated 30thDecember, 2006. Thus, it cannot be, said that there was non-application of mind on the part of the Collector in considering therelevant material. Her decision cannot be said to be pre-mediated,merely because she held a meeting with the concerned officers on25.05.2009 and recorded the statement of the President of thepetitioner association on 26.05.2009. (b) With respect to the second submission of Mr.Prasad thataction was not in public purpose, Mr.Raja Kalifulla, submitted thatin the initial petition i.e., W.P.No.1923 of 2008 filed by a PrivateFederation of Housing Societies the submissions therein were acceptedby the High Court and that the order had been left undisturbed by theApex Court when the same was challenged. The order passed by theCollector did reflect that the pattas could not be granted on thesesurvey numbers as there were chances of the drinking water gettingpolluted due to encroachments and the lands were required for futureuse. Once that was clearly stated by the concerned officers fromdifferent departments, there was no occasion to dispute the publicpurpose in shifting the encroachers. That apart, the encroachers haveno right whatsoever, and yet they were being accommodated elsewhere.G.O.Ms.No.854, which provided for the grant of patta, was subject tothe clause that the concerned land must not be required for publicpurpose. (c) With respect to the third submission of Mr.Prasad withregard to laying of tar road in the concerned area, Mr.Raja Kalifullasubmitted that it had no relevance to the petition. It has beenspecifically pleaded in para-23 of the counter filed by the ManagingDirector of CMWSSB that the black topping of a service road waspermitted between the water treatment plant and its annex buildingshaft. Merely because encroachers had occupied the lands and used thestretch of the service road, it cannot be magnified to the status ofother public roads. (d) Countering the last submission of Mr.Prasad with regard tothe facilities at Kannagi Nagar, Mr.Raja Kalifulla took us to thephotographs of the buildings which have been put up at Kannagi Nagar.The photographs show that the buildings consist of ground + twofloors. The tenements appear to be well constructed. There are other https://hcservices.ecourts.gov.in/hcservices/ facilities like schools, medical facilities, open areas and so on. Itwas also pointed out that for shifting to the place also transportwas provided and every care was taken to assist the families whichwere shifting. It was submitted that it was only because of thepressure of the petitioner association that some of the families,which had shifted earlier, had returned. (e)It was in any case submitted that all throughout the plea onbehalf of the encroachers were that they should be rehabilitated. Thesubmission that they should be granted patta was not raised at anypoint of time, but it is being raised now. Such an after though andan improvement cannot be permitted even in a public interest matter.The submissions of the Government Pleader were adopted by the counselappearing for the other respondents. 15. We have considered the submission of both the counsel. Todeal with the same, it is firstly necessary to refer to the concernedG.O.Ms.No.854 dated 30th December, 2006, on which much emphasis hasbeen laid by the counsel for the petitioner. Paragraph-4 of this G.Owhich is the relevant one in this behalf reads as follows: -“4. The Government has seriously considered theissue of regularizing the encroachments of thosewho have been residing for more than 10 years inhouses constructed on government land based onthe demand which is on the rise to grant patta tosuch persons through members of legislativeassembly, question before the State LegislativeAssembly and the public. If the aforesaid landsare not required by the Government, in order toregularize the encroachments relaxing the banorders for granting assignments in the aforesaidlands alone, a special scheme has been announcedfrom period from January, 2007 for six months forthose encroachers on government lands orders areissued with the following conditions: -(i)Excluding poromboke lands around temples,churches and mosques those lands under thepanchayat/panchayat unions/municipalities andCorporations which are objectionable governmentlands which were allotted for public purposes buthad not been utilized and had remained as Nathamand if persons have been residing in such landsby constructing houses for more than 10 years, ifthey produce necessary evidence, such lands ifthey were not required for public purposes may beexamined by the committee headed by the DistrictCollector and consisting of District RevenueOfficer, Thasildar and District Senior Officer of https://hcservices.ecourts.gov.in/hcservices/ the relevant department may be regularized by theDistrict Collector who should also consider theorder of the Madras High Court, order of theMadurai Bench of the Madras High Court and theresolution of the local bodies based on theeligibility of such persons. (ii)The ban orders issued with regard to assignmentof house sites in Municipalities and within thejurisdiction of Chennai, Coimbatore, Madurai,Tiruchirapalli, Salem and TirunelveliCorporations are being relaxed for this purposeof issuing house sites patta alone. (iii)While regularizing these lands, particularlythose classified as water ways poromboke, thecommittee headed by the District Collector shouldensure that such lands are not required by theGovernment. (iv)While granting house site pattas, those who arenot eligible for getting free house site pattashould be assessed on the value for such land asgiven in the guideline register. If the eligiblepersons have encroached upon land which is morethan the permissible allotment as per the rules,such part of the excess land should be assessedbased on the guideline register. (v)The band order issued against assignment of landwithin 16/8 kms radius from the district headquarters of the newly formed districts namely,Dindigul, Virudunagar, Sivagangai and Thuthukudiand the conditions laid down for transferringMeychal poromboke lands from other departmentsare relaxed for this purpose alone. (vi)Rest of the rules/order applicable for grantinghouse site patta will apply for this scheme also. (vii)This scheme will be implemented only as a onetime scheme.”16. District Collector’s order dated 26th May, 2009 impugned inthis petition: (a) As can be seen from the above referred to paragraph, thisscheme was to regularize the encroachments of those who had beenresiding for more than 10 years on Government lands only as a onetime scheme. Before grant of any such patta, the committee headed by https://hcservices.ecourts.gov.in/hcservices/ the District Collector was to examine as to whether any such landsare required for public purpose. The Committee was to consist ofDistrict Revenue Officer, Tahsildar and District Senior Officers ofthe Revenue Department. In the instant case, the submission of thepetitioner for regularization has been considered by the DistrictCollector in accordance with this Government Order, as can be seenfrom the impugned order. The impugned order shows that the Collectordid call the meeting of the concerned officials on 25th May, 2009. Theimpugned order refers to the earlier High Court orders in paragraph-1thereof. It also refers to the order passed by the High Court inW.P.No.2825 of 2009 directing that the representation of thepetitioner sangam should be considered. In paragraph-3, it refers tothe fact that the petitioner sangam had submitted representationdated 29th April, 2009 enclosing their ration cards and otherdocuments, as proof of their residence and had sought house sites andpattas as per G.O.Ms.No.854 dated 30th December, 2006. (b) Paragraph-4, of the order, which is relevant for ourpurpose, reads as follows: -“4. The District level committee for regularization met on25.05.2009 to take action as per the order dated 3.4.2009 of theMadras High Court and G.O.Ms.No.854 of the Revenue Departmentdated 30.12.2006 the following officials from variousDepartments participated in the said meeting. Name of the DepartmentDesignation of theOfficialsC.M.W.S.S.B Executive DirectorRevenue DepartmentDistrict Revenue OfficerChennai CorporationSpecial Tahsildar for LandAssets Departments.Tamil Nadu Slum ClearanceBoardExecutive EngineerPublic Works Department, Water Resources Organisation,Chennai-5Assistant EngineerP.W.D.Palar Basin Circle,Chennai-5Assistant EngineerC.M.D.A, Chennai -2.Assistant Project OfficerT.N.H.B, Chennai – 35.Head Surveyor.Land Survey and RecordsDepartmentAssistant DirectorAs the Chennai Metropolitan Water Supply and Sewerage Boardto whom the lands belong and the Chennai Corporation statedthat the encroachers cannot be given patta since the land which https://hcservices.ecourts.gov.in/hcservices/ has been encroached upon by the Kaalvaithurai Kudisai VazhMakkal Sangam may be required for future use by the Governmentand if the encroachments are allowed to continue, the drinkingwater supplied to the people of Chennai City may be polluted.The District level committee decided that orders cannot bepassed to regularize the encroachments as per G.O.Ms.No.854issued by the Revenue Department dated 30.12.2006. Thereafter to take action on the representation dated29.4.2009 given by the slum dwellers, notice was sent to thePresident of the Association to appear for the enquiry on26.5.2009. President of the Association and other officebearers appeared for the enquiry and gave a statement that the772 families residing in their area should be granted freehouse site patta as per G.O.Ms.No.854 dated 30th December, 2006issued by the Revenue Department. The opinion of the officials of the various departmentsconstituting the committee for regularizing the encroachmentswere considered. As the Chennai Metropolitan Water Supply andSewerage Board and Chennai Corporation have not consented forissue of patta saying the lands are required for future use andthat there are chances for the drinking water supplied toChennai City being polluted due to these encroachments, it ishereby informed that the Association request cannot be grantedas per the Government Order. Sd/- District Collector 26.05.2009”(c) Thus, as can be seen from the above paragraph the submissionsmade by the petitioner association have been referred to by theCollector, and the Collector has called all the relevant officials atthe time of meeting of the District Level Committee. The Collectorhas considered the submission of the petitioner that 772 familiesshould be granted free house site pattas, as against the submissionof CMWSSB and that of the Chennai Corporation that the encroachersshould not be given patta for two reasons namely (i) that the landsmay be required for future use and (ii) that the drinking watersupply may get polluted. The Collector has accepted the submission ofthe Chennai Corporation, as well as the CMWSSB and informed thepetitioner association that its request cannot be accepted as perGovernment Order. We would also like to mention that G.O.Ms.No.579dated 3rd October, 2008 relied upon by the petitioner is incontinuation of G.O.Ms.No.854 for the purpose of granting patta. Ifthe requirements of G.O.Ms.No.854 are not satisfied, there is nooccasion to seek any benefit under G.O.Ms.No.579 dated 3rd October,2008. https://hcservices.ecourts.gov.in/hcservices/

17. A counter has also been filed by the Collector of Chennai,wherein it is stated that in the District Level Committee, therepresentations of the petitioner association were deeply discussedand the opinion of the officials were heard with reference toG.O.Ms.No.854 dated 30th December, 2006. If the lands are not requiredfor any public purpose in future, then only the encroachments couldbe regularized as per G.O.Ms.No.854 dated 30th December, 2006. In para– 7 it is specifically stated that “the officials insisted that thelands under encroachments are needed for the future of CMWSSB andCorporation of Chennai”, and that if the encroachments were allowedto continue it will contaminate the water supply to entire Chennaicity. The Collector has also stated that an opportunity was given tothe petitioner and members of the association were heard in personand the hearing was not a farce as alleged in the writ petition. TheCollector has stated that after considering all facts only, theimpugned order had been passed. 18. A counter has also been filed by the Managing Director ofthe CMWSSB. He has in terms stated that the issues raised havealready been considered. The occupants, who were in possession priorto the cut-off date of 30th June, 1984, were provided with alternateaccommodation in pursuance to the directions in W.P.No.1923 of 2008,which has been confirmed by the Apex Court. It is stated inparagraph-7 of his affidavit that in this particular parcel of landthere are large size water supply pumping mains two of which measureabout 48” and one about 60”. The additional pump lines were alsoadded as part of the expansion programme under the Jawaharlal NehruNational Urban Renewal Machine Water Project. They are main supplychannels for providing water to the entire population of Chennaicity. In this land, approximately 200 families have encroached andare living in the premises of the Kilpauk Water Works adjacent to thewater treatment plant. They have put up temporary shelters made ofplastic and other non-biodegradable substances and are causingnuisance by their acts and activities. They are using the premises asan open-air toilet without any sense of cleanliness and hygiene. 19. It is, further, stated in paragraph-10 of the counter thatout of the 772 members of the petitioner association, the eligiblemembers were identified and 134 of them have already been providedwith alternate accommodation at the tenements of the Tamil Nadu SlumClearance Board at Ookium Thoraipakkam. They are provided withelectricity, protected water supply, underground sewerage, and otherfacilities such as school, hospital, transport, fair price shops,children play ground, etc. The encroachers have been issued withindividual notices to vacate. Thereafter, they filed Writ PetitionNo.2825 of 2009 wherein this new plea has been raised to grant thempatta which should not be permitted. 20. We have noted the submissions made by CMWSSB, which is theowner of these survey numbers. The Managing Director has clearly https://hcservices.ecourts.gov.in/hcservices/ stated the need of removing the encroachment from the concernedparcel of lands. The Collector has stated that necessarydeliberations were held with the District Level Committee members.The Collector has also stated that the petitioner association hasalso been provided with an opportunity and their representation hasbeen considered. It is no doubt true that the particulars of thedocuments submitted by the petitioner association showing their longstanding stay on the concerned survey numbers are not reflected inthe impugned order. The fact, however, remains that the land belongsto CMWSSB. The CMWSSB has given reasons as to why it wants theencroachment to be removed. Mr.Prasad has submitted that thesehutments are there for a long time and there have not been anycomplaints so far. Even so, if the CMWSSB wants to keep landadjoining the pipe lines and pumping stations intact and clean andwants the encroachments removed, the decision cannot be faulted with.As has been seen, the number of encroachments earlier was less than100. Over the years, it has gone into 772 families as claimed by thepetitioner association themselves. If this growth continuesunchecked, it will be difficult for the CMWSSB to progress with anyexpansion work or to do any further work to the water works and pipelines. These pipe lines and the water works supply water to theentire Chennai city. This being the position, if the CMWSSB submitsthat it would like the particular survey numbers to be kept clear ofencroachments, the Board cannot be faulted in that nor the Collectorbe faulted in accepting that submission, which is fully in accordancewith G.O.Ms.No.854 dated 30th December, 2006. 21. The petitioner association had been afforded an opportunityby the High Court under its order dated 3rd April, 2009 in W.P.No.2825 of 2009, so that its representation is considered by theappropriate authority. The G.O.Ms.No.854 dated 30th December, 2006requires the District Level Committee to examine whether theparticular parcel of lands were required for any public purpose. Toseek regularization of the encroachments, it had been submitted onbehalf of the petitioner association that the initial action in theinstant case was at the instance of the private parties, which led tothe High Court’s order in W.P.No.1923 of 2008. It was also submittedthat the present petitioners were not parties to the earlierproceedings, though that was stoutly disputed by Mr.Raja Kalifulla,learned Government Pleader. He pointed out that one Mr.Mani, who isthe office bearer of the present association was also the officebearer of the associations, which filed the earlier proceedings. Hesubmitted that one of the earlier writ petitions, being W.P.No.30792of 2008, was filed by the very petitioner association seekingalternate accommodation. This being the position, the petitionercould not be allowed to raise a new submission at a later point oftime. As held by the Apex Court in State of Karnataka v. All IndiaManufacturers Organisation reported in 2006 (4) SCC 683 that ifprevious litigation was in respect of a right in public interest andwas bona fide it would be a judgment in rem and would bar a https://hcservices.ecourts.gov.in/hcservices/ subsequent PIL raising same issues as were raised in the previouslitigation or connected issues by persons interested in such right.This would be particularly so after the judgment in W.P.No.1923 of2008 was left undisturbed by the Apex Court. 22. Yet, in the instant case, an opportunity has been affordedto the petitioner association, under the order dated 3rd April, 2009in W.P.No.2825 of 2009, since, none of the encroachers or theirassociations were party to the original Writ Petition No.1923 of2008. It is a human problem and it should not be said that thepetitioners had no opportunity to make a representation before theappropriate authority. Besides under the G.O.Ms.854 dated 30thDecember, 2006 the public purpose had to be ascertained beforerejecting the request for pattas. 23. Now, the representation of the petitioner association hasbeen considered. The requirements of the CMWSSB have also beenexamined and only thereafter the Collector has rejected therepresentation of the petitioner association. As stated earlier, thepetitioners have no right on the concerned parcel of lands. Theirright to get patta is under a Government Order, which is also subjectto the first claim of the State for its public purpose. In theinstant case, that public purpose has been specifically spelt out,and therefore, the order of the District Collector cannot be faultedwith. 24. We may note that on a somewhat similar matter, the shiftingof dairies, which was necessary to prevent the possibility ofcontamination/pollution of drinking water carried out through pipelines was upheld by the Apex Court in the case of Ramji Patel v.Nagrik Upbhokta Marg Darshak Manch reported in 2000(3) SCC 29. Wehave no reason to take a different view in the present matter. 25. Mr.Prasad, drew our attention to the observations made inparagraph-112 of the judgment of the Apex Court in the case ofN.D.Jayal v.Union of India reported in 2004 (9) SCC 362, wherein inthe context of the matter, the Court observed that “it is, therefore,necessary that when a big multimillion dam project is undertaken togenerate electricity and for providing water for irrigation anddrinking, we should not leave those living by the side of the riverfrom generations to suffering by displacement to a far-off placewhich would deprive them of their life and lifestyle”. 26. On perusal of the relevant materials, we are satisfied inthe facts of the present case that the persons, who are eligible, areprovided with good alternate accommodation in a housing colony knownas Kannagi Nagar, which has come up at an area, which is around 20kilometers or so from the present place where the encroachers arestaying. Those who want to shift to those premises are to be affordedwith necessary transport facilities. This has been done with respect https://hcservices.ecourts.gov.in/hcservices/ to those who have already been shifted and we have been shownphotographs in that behalf. It can not be said to be displacement toa far off place depriving them of their life and lifestyle.27. Shifting from a place from where one is already residing isundoubtedly not very comfortable. At the same time, in the instantcase, we do not see any reason for the encroachers to make anyserious grievance in that behalf. They are provided with goodalternate accommodation, which is not very far off and all necessaryassistance for shifting purposes has been provided. 28. For the reasons stated above, the two fold prayers in thispetition cannot be entertained, and the petition is accordinglydismissed, though without any order as to costs. Consequently,connected miscellaneous petitions are also dismissed.sm/pv 26.10.2009This matter having been listed on Wednesday, the Twenty Fifthday of November, 2009 for being mentioned before the Division Benchcomprising of the Hon'ble Mr. H.L. GOKHALE, The Chief Justice and theHon'ble Mr. Justice N. PAUL VASANTHAKUMAR pursuant to the order ofthis Court dated 26.10.2009 and made herein and in the presence ofthe aforesaid counsels on the either side, the Court made thefollowing Order:-ORDER (By The Honourable the Chief Justice)Though this matter is on the board, it is taken up at theinstance of Mr. N.G.R. Prasad, learned counsel appearing for thepetitioner.2. This writ petition, was disposed of by a Division Bench byjudgment dated 26.10.2009, to which one of us (H.L. Gokhale, C.J.)was a party. Consequent upon the judgment, the Managing Director ofthe Chennai Metropolitan Water Supply and Sewerage Board, the sixthrespondent herein, has issued individual notices dated 25.11.2009asking the members of the petitioner-Association to vacate the areaunder their respective occupation on or before 1.12.2009.3. Mr. N.G.R. Prasad informs us that the petitioner-Associationhas preferred a Special Leave Petition against the judgment inW.P.No.9851 of 2009 on 16.11.2009, which has been assigned DiaryNo.35084 of 2009. He states that the matter is taking some time to betaken up. He makes a request that the aforesaid eviction notices maynot be enforced until 16.12.2009. https://hcservices.ecourts.gov.in/hcservices/

4. Mr. Raja Kalifulla, learned Government Pleader opposes thisrequest pointing out that all the occupants who are eligible arebeing offered alternate accommodation. According to the learnedGovernment Pleader, this matter has already gone through a number ofrounds of litigation and what is now being done now is only inpursuance to the orders of the Supreme Court passed earlier.5. We have noted the submissions made on either side. Even so,considering the human problem involved in this matter, we direct thesixth respondent-Chennai Metropolitan Water Supply and Sewerage Boardnot to enforce the aforesaid eviction notices until 16.12.2009.Mr. N.G.R. Prasad states that the petitioner-Association will abideby whatever orders that are passed by the Supreme Court in theaforesaid Special Leave Petition pending before it.ab 25th November, 2009Sd/-Asst.Registrar/True Copy/Sub.Asst.RegistrarTo1. The Secretary to Government, Government of Tamil Nadu, Department of Revenue, Fort St.George, Chennai – 600 009.2. The Secretary to Government of Tamil Nadu, Department of Public Works, Fort St.George, Chennai – 600 009. TO BE3. The Collector, SUBSTITUTED Chennai District, Chennai – 600 001. FOR THE 4. The Commissioner, Corporation of Chennai, Chennai – 600 003. ORDER 5. The Chairman, Tamil Nadu Slum Clearance Board, ALREADY Chennai – 600 005. DESPATCHED ON6. The Managing Director, Chennai Metropolitan Water Supply and Sewerage Board, 28.10.2009 Chennai – 600 002.+ 1 c.c. to Mr. K. Elango, Advocate.SR.63567+ 1 c.c. to The Government Pleader. S.R.No.63709. W.P.No.9851 of 2009 PA(CO)EM/28.10.09PA(CO)GSK 26.11.2009.