M.Vairamuthu v. The Collector,Kancheepuram, Kancheepuram District.2.The Tahsildar,Chengalpattu, Kancheepuram District

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 02-12-2008Coram: The Honourable Mr.Justice M.JAICHANDRENW.P.No.223 of 2003M.Vairamuthu.. Petitioner. Versus1.The Collector, Kancheepuram, Kancheepuram District. 2. The Tahsildar, Chengalpattu, Kancheepuram District... Respondents. Prayer: Petition filed seeking for a writ of Certiorarified Mandamus, tocall for the records relating to the impugned order of the secondrespondent, dated 2.12.2002, and quash the same and consequently directthe first respondent to issue patta for the land in petitioner'spossession in S.No.230/2, Alathur, Chengalpattu Taluk, as per the ordersof the Government of Tamil Nadu in G.O.Ms.No.168, Revenue [(Ni.Mu.1(2)]Department, dated 27.3.2000, and Government Letter No.11414/Ni.Mu.1(2)/2000-5, dated 2.5.2000. For Petitioner : Mr.P.Rajendran For Respondents : Mr.P.Muthukumar Government Advocate

O R D E RHeard the learned counsel appearing for the petitioner and thelearned counsel appearing for the respondents.2. This writ petition has been filed by the petitioner stating thathe is residing at 1/121, Old Mahabalipuram, Alathur, ChengalpattuTaluk, Kancheepuram District. The land under the occupation of thepetitioner is comprised in S.No.230/2. The said land has been classifiedas `Thangal' (Eri Poramboke) in the revenue records. The land which isoccupied by the petitioner is at a higher level. Therefore, at no pointof time it is flooded by water. https://hcservices.ecourts.gov.in/hcservices/

It has also been stated that the Alathur Panchayat has laidroads and has also provided water connection to the house situated inthe poramboke land. Sodium Vapour lamps have also been installed alongthe roads. All the expenditures were incurred by the Panchayat aftergetting the due sanction from the Block Development Officer, Thirupporur. The Alathur Panchayat had also constructed a room providinga television set enabling the public to view the televised programmes.

It has also been stated that the petitioner has been residing inhis house for the past more than 20 years. He is paying the House Tax, the Water Tax, Library Cess etc., to the Alathur Panchayat. The penalassessment has also been levied for the land and the petitioner has beenpaying the same, regularly. The Tamilnadu Electricity Board has providedelectricity connection to the premises of the petitioner. The revenueauthorities had given a no objection letter to the Electricity Board. AFamily Ration card has also been issued to the petitioner and his nameis found in the voter's list.

It has also been stated that in the year 2000, the Government of Tamilnadu had issues orders in G.O.Ms.No.168, Revenue [Ni.Mu.1(2)]Department, dated 27.3.2000, directing that the persons who hadconstructed houses on poramboke lands and residing there for more than10 years may be assigned house site pattas for the said lands. Thereafter, the Government had issued further orders in GovernmentLetter No.11414/Ni.Mu.1(2)/2000-5, dated 2.5.2000, to clarify that evenpersons who had constructed houses and are staying for a period of twoyears on a poramboke land can be assigned patta, if the said land iscomprised in the same survey number in which the persons had constructedthe houses and residing for more than ten years. Since the petitionerhas been residing in the said house for several years, he had submittedan application to the District Collector, Kancheepuram, on 12.8.2002,requesting him to grant patta for the said land. Similarly, applicationshave been given by all the occupants residing in the said area. However, no action had been taken by the authorities concerned to grant patta tothe petitioner and to the other similarly placed persons.

While so, the Tahsildar, Chengalpattu, the second respondentherein, had issued a notice, dated 12.9.2002, under Section 7 of the Tamilnadu Land Encroachment Act, 1905, calling upon the petitioner toshow cause as to why he should not be proceeded against, under Section 6of the said Act. The petitioner had submitted his explanationimmediately after the receipt of the said notice. However, the secondrespondent had issued an order, dated 2.12.2002, under Section 6 of the Tamilnadu Land Encroachment Act, 1905, directing the petitioner tovacate the land under his occupation, within seven days of the receiptof the said order, stating that if he fails to do so, he would besummarily evicted from the said place. The order was served on thepetitioner, on 20.12.2002. Since the impugned order is contrary to law, illegal, unjust and liable to be set aside, the petitioner has preferred https://hcservices.ecourts.gov.in/hcservices/ the present writ petition before this Court, under Article 226 of the Constitution of India7. No counter affidavit has been filed on behalf of the respondents.

The learned counsel appearing for the petitioner has submittedthat the issuing of show cause notice, under Section 7 of the TamilnaduLand Encroachment Act, 1905, is not an empty formality. When the statutestipulates issuing of a show cause notice, it follows that the reasonsgiven by the concerned person, in his reply to the show cause notice, must be considered before a decision is arrived at. In the present case, the second respondent had issued the impugned order in a printed formatwithout applying his mind to the explanation submitted by thepetitioner. Hence, the impugned order is arbitrary and illegal. Thepetitioner has been paying the House tax to the Alathur Panchayat forseveral years. The Tamilnadu Electricity Board had provided electricityconnection to the premises of the petitioner after obtaining a `NoObjection Certificate' from the revenue authorities. Family ration cardhad also been issued to the petitioner and his name finds a place in thevoter's list. The Alathur Panchayat had laid roads and provided waterconnection to the house site in the poramboke land. Sodium vapour lampshad been fixed along the roads. All the expenditures were incurred bythe Panchayat after getting due sanction from the Block DevelopmentOfficer, Thirupporur. The petitioner has been paying House Tax, WaterTax, Library Cess etc., to the Alathur Panchayat. Penal assessment hasalso been levied for the said land and he has been paying the sameregularly. Further, no useful purpose would be served by evicting thepetitioner from the land under his occupation. It is not causing anyobstruction or hindrance to the free flow of water as the land under thepetitioner's occupation is at a higher level. The second respondent hadpassed the impugned order without considering the relevant Governmentorders in favour of the petitioner, including G.O.Ms.No.168, Revenue[(Ni.Mu.1(2)] Department, dated 27.3.2000, and the Government LetterNo.11414/Ni.Mu.1(2)/2000-5, dated 2.5.2000. In such circumstances, theimpugned order of the second respondent is liable to be set aside.

The learned counsel appearing for the respondents had submittedthat the petitioner has no right over the land as he is occupying thesame as an encroacher. Even if certain facilities had been provided bythe local authorities, it does not vest any right in the petitioner ashe is occupying the Eri Poramboke which belongs to the Government. TheGovernment order in G.O.Ms.No.168, Revenue [(Ni.Mu.1(2)] Department, dated 27.3.2000, only states that the Government may allot the land tovarious persons, who are in occupation of the land, if it is found thatthe land is not required for any other purpose. Further, the petitionerought to have filed an appeal, under Section 10 of the Tamilnadu LandEncroachment Act, 1905, challenging the order passed, under Section 6 ofthe said act. In such circumstances, the writ petition is notmaintainable. https://hcservices.ecourts.gov.in/hcservices/

In view of the submissions made by the learned counsel for thepetitioner, as well as the learned counsel appearing for the respondentsand on a perusal of the records available, this Court is of theconsidered view that the petitioner has not shown sufficient cause orreason for this Court to grant the reliefs, as prayed for the in thewrit petition.

Since there is no right vested in the petitioner to occupy theland, categorised as Eri Poramboke, the present writ petition cannot bemaintained. However, in view of the various reasons stated by thepetitioner, it is open to the petitioner to file an appeal before thefirst respondent, invoking Section 10 of the Tamilnadu Land EncroachmentAct, 1905, within a period of four weeks from the date of receipt of acopy of this order. On such appeal being filed, the first respondentshall dispose of the same, on merits and in accordance with law, aftergiving the petitioner an opportunity of personal hearing, within aperiod of twelve weeks thereafter. Accordingly, the writ petition standsdismissed. No costs. Sd/Asst. Registrar/true copy/Sub Asst. RegistrarcshTo1.The Collector, Kancheepuram, Kancheepuram District. 2. The Tahsildar, Chengalpattu, Kancheepuram District.1 cc To The Government Pleader, SR.67775.W.P.No.223 of 2003 NM(CO)RVL 26.12.2008