THE HONOURABLE MR v. The District Revenue Officer

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 25.03.2008CORAM:THE HONOURABLE MR.JUSTICE P.JYOTHIMANIW.P.No.59 of 20041.K.P.Vijayan2.C.Muniyandi3.V.Seethayan4.M.Chinnaiah5.A.Palaninathan6.A.Arulandu7.AL.Thavasumani8.AL.Gurusamy9.PR.Pandian10.RM.Rukmani11.S.Palsamy12.R.Eakambareswari13.R.Ramesh14.M.Abdul Jaffar15.RM.Murugan16.M.Chokkan17.S.Ganesan18.K.Pachai Muthu19.K.Annapoorani20.TR.Neethipathi21.TR.Ganapathy22.Maideen23.S.Balgis Begam24.E.Syed Ibrahim25.S.Raja Mohammed26.A.Ayyavu27.AR.Vaithiyanathan28.PR.Subbiah29.M.Ramayee30.M.Selvi31.RM.Bakkiammal32.M.Palniammal33.A.Mariya Selvam34.A.Alagammal35.M.Arjunan36.K.Mariya Selvam37.M.Pappa38.RM.Nagammal... Petitionersvs. https://hcservices.ecourts.gov.in/hcservices/

1.The District Revenue Officer,Sivagangai District,Sivagangai – 623560.2.The Tahsildar,Tirupattur Taluk – 621105,Sivagangai District.3.The Revenue Inspector,Ilayathankudi,Sivagangai District.4.S.M.S.V.Srinivasan... RespondentsR.4 impleaded as per order dated 13.2.2008 in WPMP.2580/07Writ Petition filed under Article 226 of the Constitution ofIndia praying for the issuance of a writ of certiorari, calling forthe records relating to the order of the 1st respondent in proceedingsNo.Na.Ka.E4/61531/2000 dated 26.12.2003, which was received by thepetitioner on 01.01.2004 only, confirming the order of the 2ndrespondent in Proceedings No.R.F.XIV-C-1-2,26,200-MADURAI-2002 dated24.01.2003 and quash the same.For Petitioner:Mr.R.ParthibanFor R1 to R3:Mrs.Geetha,Addl. Government PleaderFor R4:Mrs.Vijayakumari NatarajanO R D E RThis writ petition is directed against the order of the firstrespondent, the District Revenue Officer, Sivagangai, dated26.12.2003, rejecting the revision filed by the petitioners. 2.The petitioners are stated to have been in possession of anextent of 2.19.0 hectares of land in S.No.218 in A.Thekkur Village,which was originally classified as Panchayat Poramboke and thecontention is that each one of the petitioners are in possession of 3cents of land and their possession relates back to many years. Someof the petitioners have also put up shops in front of the portions oftheir houses, which are their source of livelihood. After manyrepresentations, the second respondent Tahsildar, by an order dated16.12.1982 has regularized the occupation of the petitioners andaccording to the petitioners, the plots occupied by them are not https://hcservices.ecourts.gov.in/hcservices/ objectionable in character. The petitioners have put up constructionsand have also been paying property tax to the authorities. In August2000, the District Revenue Officer issued press news stating that theGovernment has decided to give patta to all the occupants of smallpieces of land, who are in occupation for more than 10 years. It wasbased on the said press release, the petitioners have also givenapplications to the second respondent and the second respondent isstated to have directed the Survey Department to measure small pieceof land in order to grant patta to the petitioners. In the meantime,the fourth respondent, one N.Alagappan, who has been impleaded inthis writ petition, representing the Trustees of Nagarathar SivanKoil and claiming that the said lands belonged to the Temple hasfiled a suit in O.S.No.108 of 2000 on the file of the District MunsifCourt, Tirupattur for an injunction and possession. There was anothersuit in O.S.No.183 of 2000 before the Sub-Court, Sivagangai.3.The case of the petitioners is that the suit filed by thesaid Alagappan was dismissed and thereafter he moved this Court byfiling W.P.No.2159 of 2001 for a direction against the first andsecond respondents to take action in evicting the petitioners fromS.No.218 of A.Thekkur Village on the basis that they are encroachersand claiming that the property is a OORANI LAND belonging to theSivan Temple formed by the Nagarathar community, represented by thefourth respondent. While disposing of the said writ petition, thisCourt, by order dated 06.02.2001 has directed the authorities to takeaction in evicting unauthorised encroachers, who are in illegaloccupation.4.Pursuant to the order of this Court as stated above, thesecond and third respondents have issued notice against thepetitioners under Section 6 of the Encroachment Act. The petitionershave in fact filed W.P.No.8477 of 2001 on the ground that Section 7notice was not given prior to the issuance of notice under Section 6of the Encroachment Act. This Court, by order dated 28.02.2002 hasallowed the writ petition filed by the petitioners and directed theauthorities to take fresh action by giving notice under Section 7 ofthe Encroachment Act. The third respondent has accordingly issuednotice to the petitioners and in fact, the petitioners have submittedtheir reply and thereafter the order under Section 6 of theEncroachment Act came to be passed on 14.01.2003. Even though, thesecond respondent has passed individual orders under Section 6 of theEncroachment Act, a single appeal was filed by all the 38 petitionersherein to the first respondent, who, by an order dated 11.04.2003 hasinformed the petitioners that he has no jurisdiction to entertain theappeal. It was against the said order, the petitioners filedW.P.No.18943 of 2003 to quash the proceedings of the first respondentdated 11.04.2003, signed by the first respondent on 16.06.2003. Thesaid writ petition came to be allowed on 09.07.2003 and the order ofthe first respondent, dated 11.04.2003 signed on 16.04.2003 was setaside with a direction to the first respondent to dispose of the https://hcservices.ecourts.gov.in/hcservices/ appeal on merits giving fair and a reasonable opportunity to thepetitioners. In the meantime, the fourth respondent who has earlierfiled the writ petition in W.P.No.2159 of 2001 has filed ContemptPetition No.504 of 2003 against the Revenue Divisional Officer andthe Tahsildar, in which notice was issued.5.Pursuant to the order dated 09.07.2003 passed inW.P.No.18943 of 2003, the first respondent has issued notice to thepetitioners and thereafter, the impugned order came to be passed on26.12.2003, which according to the petitioners was received by themon 01.01.2004. The impugned order passed by the first respondent andthe revision were challenged by the petitioners on many groundsincluding, that the first respondent has failed to take intoconsideration that the Tahsildar has regularised the occupation ofthe petitioners by order dated 16.12.1982; that as per the NewsReport given by the first respondent, the Government has decided togive patta to all occupants of small pieces of government landsprovided, they continue to be in occupation for more than 10 yearsand in spite of the News Report, the first respondent has not takenthe same into consideration; that the 4th respondent has falselyclaimed the possession of the property as if it belonged toNagarathar Sivan Temple, which has been rejected by the Civil Courtand having failed in his attempt before the Civil Court, he hasapproached this Court, wherein a direction was issued to therespondents 1 and 2 to take immediate action to evict the encroachersfrom S.No.218 of A.Thekkur Village and pursuant to the said order ofthis Court, a direction was issued in W.P.No.8477 of 2001 to theauthorities for issuance of notice under Section 7 of theEncroachment Act for removal of encroachments.6.The respondents 1 to 3 have filed counter affidavit. Whilethe facts narrated above are not denied, it is the case of therespondents 1 to 3 that it was as per the direction of this Court toremove the encroachments, the respondents have taken action. It isstated that after the notice issued under the Land Encroachment Actwas received, one of the petitioners, namely, K.P.Vijayan has filed asuit in O.S.No.69 of 2002 in the District Munsif Court, Tirupatthur,claiming title on the suit property and it was in the meantime, thefourth respondent has filed C.R.P.No.1365 of 2002 under Article 227of the Constitution of India against the said suit and ultimately thesaid petitioner has withdrawn his suit. In the meantime, thepetitioners have filed appeal petition before the District Collector,Sivaganga not to remove the encroachments. On 11.04.2003, the firstrespondent had disposed of the appeal petition stating that he has nojurisdiction and ultimately that order was set aside by this Courtwith a direction to the first respondent to pass orders on merits andit was thereafter the first respondent after hearing the petitionersand after conducting enquiry passed the impugned order. https://hcservices.ecourts.gov.in/hcservices/

7.The respondents 1 to 3 have denied the allegation of thepetitioners that in respect of S.No.218 their possession wasregularised in the year 1992, on the basis that the possession of thepetitioners is highly objectionable and the petitioners are onlyunauthorised occupants. It was only after finding that thepetitioners are in unauthorised occupation, the proceedings under theEncroachment Act were initiated and final order passed by therespondents, which is impugned in this writ petition.8.When the matter was taken up for final disposal, this Courthas directed the learned Government Advocate appearing forrespondents 1 to 3 to produce the entire files relating to theenquiry conducted regarding the encroachment as per the orders ofthis Court passed earlier. Accordingly, the learned GovernmentAdvocate has produced the files.9.Mr.R.Parthiban, learned counsel for the petitioners wouldsubmit that the petitioners have raised a specific ground in therevision petition before the first respondent that the petitionershave been in possession for a long period and in fact they haveacquired title by adverse possession and in spite of the specificplea raised in the grounds before the first respondent, the firstrespondent has not chosen to consider the same. He would also submitthat referring to a legal opinion given by the Government Advocate tothe District Collector as it is seen in the file, wherein it wasstated that after perusing the entire papers and also various orderspassed by this Court, there is reason to believe that thepetitioners have been in possession for many number of years andaccording to the learned counsel for the petitioners, the firstrespondent ought to have considered the same before passing theorder. According to him, the order of the first respondent is notpassed by proper application of mind. It is his contention that infact some of the petitioners have produced the orders of theTahsildar of the year 1982, by which regularisation has been made.10.Mrs.Geetha, learned Additional Government Pleader appearingfor respondents 1 to 3, on producing the files would submit that theimpugned order came to be passed only as per the direction of thisCourt, but on enquiry it was found from the Revenue records that theplace in occupation of the petitioners are Oorani lands and as perthe established principles of precedence and also the advent of thenew legal system, anybody who is in occupation of water courses,river beds, etc have no right to continue to be there and therefore,the action taken is in accordance with law and order passed aftergiving opportunity to the petitioners and the petitioners havesubmitted their objections.11.Mrs.Vijayakumari Natarajan, learned counsel appearing forthe fourth respondent would submit that it is true that originally, https://hcservices.ecourts.gov.in/hcservices/ the fourth respondent had filed a writ petition in 2001 on the basisthat the property which is the subject matter of dispute in this casebelonged to the Sivan Temple of Nagarathar community of A.ThekkurVillage and subsequently when it was found that the said land wasOorani land, the fourth respondent has given up the plea that thesame belonged to the Sivan Temple. But her contention is that, whenthe land is categorised as Oorani land, it has to be retained in theinterest of the general public and therefore, she would submit thatamong the petitioners, an enquiry was conducted and some of thepersons were declared as persons eligible for alternate sites andalternate plots were allotted and therefore, the petitioners cannothave any grievance. It is her further submission that if thepetitioners desire to establish that they have been in possession fora long time by acquiring title by prescriptive possession, it is forthem to establish before the competent Court of law.12.Heard the learned counsel on either side and perused theentire material records.13.It is not in dispute that the impugned order was passed bythe first respondent as per the direction of this Court. Theaverment of the petitioners is that the enquiry was not properlyconducted, especially when the petitioners have taken the stand thatthey have been in possession for many years. It is true that if thepetitioners have been in continuous possession of the property for along time as per law and that they are entitled for relief in theappropriate forum. But, the question is whether the first respondentwho has passed the impugned order has any such power to make suchdeclaration. It is well settled that in case where the petitionersare in continuous possession for more than 30 years in respect of thepublic land, the same requires appreciation of evidence by thecompetent court of law. Neither the first respondent deciding as arevisional authority nor the Court exercising jurisdiction underArticle 226 of the Constitution of India have any such power. 14.Admittedly, no one has filed any suit for declarationclaiming title by long possession, even though a suit was filed inO.S.No.69 of 2002 challenging the earlier notice given under Section6 of the Encroachment Act. In such circumstances, it is not for thisCourt at this stage to hold that the petitioners are entitled forpossessory title. Mr.Parthiban, learned counsel for the petitionershas also referred to some of the messages received by the Sub-Collector from the District Collector, in which the DistrictCollector has directed the Sub-Collector to find out as to whetheralternate place is available to those occupants and as to whether theOorani is really in existence and also inform as to whether thegovernment buildings which have been put up in Oorani lands can bevacated. In the absence of any such query by the Collector, it isnot open to the first respondent to come to the conclusion. Eventhough it is true, that these are all internal communications between https://hcservices.ecourts.gov.in/hcservices/ the officials, it is seen in the file that the District Collector hasconducted an enquiry regarding granting of alternate sites and infact some of the petitioners have been considered for granting ofalternate sites in respect of S.No.65 of 2001. Even then, it is forthe respondents to decide about the granting of alternate sites tothe petitioners considering the long time they have been inpossession, but that cannot be the reason for the petitioners tocontinue to be in possession of Oorani lands.15.In T.N. Act No.8/2007, namely, Tamil Nadu Protection ofTanks and Eviction of Encroachment Act, 2007, the measures forchecking the encroachment, eviction of encroachment in tanks havebeen enshrined. Under Section 2(l) of the Act, the term 'tank' hasbeen defined as a storage structure built in for harnessing water foruse and includes supply channel and its cross masonries, tank sluice,surplus water, surplus course and its cross masonries; field channeland its cross masonries besides the drains and tank poramboke landswhich are under the control and management of Public WorksDepartment. For the purpose of evicting any person who has occupiedsuch tank, the procedure is the same as that of the procedure laiddown under the Encroachment Act and therefore, the action taken bythe respondents in giving notice to the petitioners under Section 7of the Act and thereafter issuing notice under Section 6 of theEncroachment Act cannot be said to be an action against theprovisions of the Tamil Nadu Protection of Tanks and Eviction ofEncroachment Act, 2007 and therefore, it cannot be said that theprocedures followed is against law.16.In the case of L.Krishnan vs. State of Tamil Nadu, rep. byits Secretary, Chennai 600 009 reported in 2005 (4) CTC 1, a DivisionBench of this Court consisting of Justice Markendey Katju (as HisLordship then was) and Justice F.M.Ibrahim Kalifulla has held thatArticle 51-A(g) of the Constitution makes it a fundamental duty ofevery citizen to protect and improve natural environment includingforests, lakes, rivers and wild life. By referring to a judgment ofthe Supreme Court in the case of Animal and Environment Legal DefenceFund vs. Union of India reported in 1997 (3) SCC 549, this Court inthe operative portion of the judgment stated above has held as under:"12.Apart from the above we may also refer to Article51-A(g) of the Constitution which makes it a fundamentalduty of every citizen "to protect and improve the naturalenvironment including forests, lakes, rivers and wild life."This duty can be enforced by the Court, vide Animal andEnvironment Legal Defence Fund vs. Union of India."17.The Supreme Court in the case of Intellectuals Forum,Tirupathi vs. State of A.P. and others reported in 2006 (2) CTC 71has held that the tank is a communal property and the StateAuthorities are Trustees to hold and manage such properties for the https://hcservices.ecourts.gov.in/hcservices/ benefit of community and cannot be allowed to commit any act oromission which will infringe the right of community and alienateproperties to any person or Body. By referring to the criticisms ofsome of the environmental activists that the Judges are carried awayby the money spent on projects and mega projects, that harm theenvironment are not condemned, the Supreme Court by applying theruling in the earlier judgment in Virender Gaur & Others vs. State ofHaryana and others reported in 1998 (1) CTC 143, has held thatdirections have been issued by the Supreme Court to ensure itsenforcement by nothing short of demolition or restoration of statusquo ante. The operative portion of the said judgment reads as under:"42.However, some of the environmental activists,as noted in the 'The Environmental Activities Hand Book'authored by Gayatri Singh, Kerban Ankleswaria and ColinsGonsalves, that the Judges are carried away by the moneyspent on projects and that mega projects, that harm theenvironment are not condemned. However, this criticismseems to be baseless since in Virender Gaur & Others vs.State of Haryana and others, 1998 (1) CTC 143 : 1995 (2)SCC 577, this Court insisted on the demolition ofstructure which have been constructed on the landsreserved for common purposes and that this Court did notallow its decision in several cases issuing directionsand ensuring its enforcement by nothing short ofdemolition or restoration of status quo ante. The factthat crores of rupees was spent already on developmentprojects did not convince this Court while being in azeal to jealously safeguarding the environment and inpreventing the abuse of the environment by a group ofhumans or the authorities under the State for thatmatter."18.In view of the consistent view of the Apex Court and alsothe law laid down therein, there is no difficulty to come to theconclusion that the impugned order of the first respondent isperfectly in accordance with law. In such circumstances, thereference made on behalf of the petitioners in the judgment passed bythe Full Bench of this Court in the case of Ramaraju vs. The State ofTamil Nadu reported in 2005 (2) CTC 741 is of no use to thepetitioners in this case, for the reason that it was a case whereinfor removal of encroachment notice was issued by public addresssystem and through beat of drums or by general notice in newspapers.The Supreme Court in its decision in Ahmedabad Muncipal Corporationvs. Nawab Khan Gulab Khan, AIR 1997 SC 152 has held that individualpersons who are encroachers are entitled to reasonable notice.19.In the present case, it is not in dispute that thepetitioners have been given notice as per the principles of theEncroachment Act and procedures have been followed. In view of the https://hcservices.ecourts.gov.in/hcservices/ same, there is no illegality or irregularity in the order passed bythe first respondent dated 26.12.2003 and the writ petition isdismissed. It is always open to the petitioners to work out theirremedy in the manner known to law either by claiming possessory titleor by seeking alternate sites by approaching the concernedauthorities. No costs. Consequently, connected W.P.M.P.No.73 of 2004 isclosed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.abeTo :1.The District Revenue Officer,Sivagangai District,Sivagangai – 623560.2.The Tahsildar,Tirupattur Taluk – 621105,Sivagangai District.3.The Revenue Inspector,Ilayathankudi, Sivagangai District.+ 1 CC To Mr.R.Parthiban, Advocate SR NO.16851+ 1 CC to the Government Pleader SR NO 16783+ 1 CC To Mrs.Vijayakumari Natarajan, Advocate SR NO.16295W.P.No.59 OF 2004bvn[co]gp/8.4.