WP(MD)/24234/2017 of P.VASANTHA, Vs THE DISTRICT COLLECTOR, on 28 December 2017

Conclusion

COMMON ORDER

[Order of the Court was made by S.VAIDYANATHAN, J.]

As the issue involved in all these cases is one and the same,the Writ Petitions are taken up for disposal by a common order, withthe consent of the learned counsel on either side.

2. These writ petitions have been filed, seeking to quash theimpugned notices passed by the Respondent No.2 under Section 6(1) ofthe Tamil Nadu Protection of Tanks and Eviction of EncroachmentRules, 2007 dated 22.12.2017 in respect of the properties in WardNo.B, Block No.5, Survey No.2 in Paramakudi, RamanathapuramDistrict.

3. Mr.T.S.Mohamed Mohideen, learned Additional GovernmentPleader takes notice for the respondents.

4. For the sake of brevity, facts are being taken up from W.P.(MD) No.24234 of 2017, which read as follows:(i) It is stated by the petitioner that her father-in-law hadbeen residing in the said Survey Number in a thatched roof, which isclassified as Water Land near riverside and after the death of herhusband, she started living in the said property, which is dulyassessed to house tax and electricity connection has also beenprovided to it;

(ii) While so, a notice was issued on 26.05.2005 by the PublicWorks Department (PWD), calling upon her to vacate her dwellinghouse without any prior notice, which forced her to file a writpetition in W.P.(MD) Nos.4879 and 4950 of 2005 and the same weredisposed of on 16.04.2007, remitting the case to the competentauthority for fresh consideration. Subsequently, on 12.04.2013,another notice under Section 6 of the Tamil Nadu Encroachment Act,1905 was issued by the Revenue Inspector, Paramakudi for vacatingthe house within 15 days, pursuant to which, the petitioner filed awrit petition in W.P.(MD) Nos.7965 and 7966 of 2013, which weredisposed of by this Court on 03.05.2013, granting liberty to thepetitioner to file an appeal to the District Collector within 30days with further direction not to dispossess the petitioner fromthe premises.

(iii) To add fuel to the fire, on 10.07.2013, the Tahsildar,Paramakudi sent a letter to the petitioner, simply rejecting herappeal, which necessitated to once again file a writ petition inW.P.(MD) No.13505 of 2013, in which, this Court was pleased todirect the 1[st] respondent therein to entertain the appeal and disposeof the same as per law with an interim order of not to dispossessher from the premises. When the matter stood thus, all of a sudden,the 2[nd] respondent has issued the impugned order dated 22.12.2017under Section 6(1) of the Tamil Nadu Protection of Tanks andEviction of Encroachment Rules, 2007 for commencing eviction processhttps://hcservices.ecourts.gov.in/hcservices/and arranged heavy machineries for demolition of the dwelling house.Aggrieved by the same, the petitioner is before this Court.

5. Learned counsel for the petitioners would submit that thepetitioners are in occupation of the land in question for more than40 years and the impugned order issued under the provisions of theTamil Nadu Protection of Tanks and Eviction of Encroachment Rules,2007 is not at all sustainable, as the land is not earmarked for anyTank by the 2[nd] respondent.

6. Per contra, the learned Additional Government Pleaderappearing for the respondents would submit that the petitioners areonly encroachers on the public land and residing in the Governmentland in question for so many years without any title, does notentitle them to claim right over the property, as, such unautorizedencroachments create big havoc/problems during rainy season andtherefore, these writ petitions are to be dismissed, in limine.

7. Heard the learned counsel for the parties and perused thematerial documents available on record.

8. It is no doubt true that encroachments on public propertiesseverely obstruct and upset the planned development, ecology andalso sanitation, which needs to be preserved and protected at anycost. Unless stringent actions are adopted, there could not be nosolution for prevention of such unauthorized encroachments. Paymentof property tax, provisions of water connection or electricity bythemselves cannot be construed as conferring any independent right,if the encroachment is otherwise unauthorised, as no person hasright to encroach by erecting a structure or otherwise on footpathsand pavements or other places reserved or earmarked for a publicpurpose.

9. The learned counsel for the petitioners has cited a judgmentof the Hon'ble Division Bench of this Court, consisting of JusticeM.Venugopal and Justice Abdul Quddhose, to emphasize that therespondents were earlier directed not to disturb the possession ofthe petitioners. A careful scrutiny of the said judgment wouldunfold that such order was passed on the basis of the representationbefore the Bench that appeals filed by the petitioners are pendingbefore the Appellate authority, as the petitioners have projected,as if the proceedings have been initiated under the Tamil Nadu LandEncroachment Act, 1905, which has appeal provision. However, a closereading of the proceedings now initiated against the petitionerswould go to show that the proceedings are pending under theprovisions of the Tamil Nadu Protection of Tanks and Eviction ofEncroachment Rules, 2007, not under the the Tamil Nadu LandEncroachment Act, 1905, as visualized by the petitioners.Admittedly, there is no appeal remedy provided under the Tamil NaduProtection of Tanks and Eviction of Encroachment Rules, 2007 andtherefore, the question of filing appeals does not arise at all.

10. It is stated that the petitioners are said to have beenhttps://hcservices.ecourts.gov.in/hcservices/residing in the lands in question for more than 40 years and theirchildren are pursuing their studies, but at the same time, it is to

be remembered that sympathetic view cannot be taken, when it affectspublic at large and therefore, the petitioners cannot be permittedto continue to reside in the Tank area. After verification of theentire records, the authorities concerned have decided to cast sucha notice of eviction to the petitioners, which cannot be faultedwith, at any stretch of imagination. A Hon'ble Division Bench ofthis Court, while dealing with the similar issue, in the case ofM/s.Aara Silk, Chennai vs. The Principal Director, Southern Command,IDES Guest House, Cross Road, Pune, Maharashtra State and another inWrit Petition No.29985 of 2016 decided on 29.09.2016, was pleased tohold as under:

“22. In view of the decisions cited supra, this Court is of the view that the violatedportions have got to be razed to the ground. Interms of the provisions of the Cantonment Act,the police shall give full protection for thedemolition of the building and the petitioner isgiven a week's time from today, to remove thebelongings in the building, otherwise, it will beconstrued that the belongings have been vacatedby the petitioner. This Writ Petition isdismissed with the above direction andobservation.

23. Since the petitioner has played fraudwith regard to construction of building, bygrossly violating the sanction plan, this Courtimposes fine of a sum of Rs.50,000/- (RupeesFifty Thousand only) on the petitioner to bepayable by him in favour of Government HigherSecondary School for the Blind, Poonamallee,Chennai - 600056, 044-26272080 within a period ofone week from the date of receipt of a copy ofthisorder.Consequently,connectedW.M.P.No.25954 of 2016 is closed.

11. In the present case on hand, from the records available onrecord, it is apparent that it is a clear case of encroachment onthe Tank. Hence, the petitioners are liable to be evicted forthwith.Though it is a fit case to impose costs on the petitioners forfiling litigations one after the other, considering their longresidence in the locality, this Court refrains itself from suchimposition. Hence, finding no merits in these writ petitions, theyare dismissed as devoid of merits.

12. At this juncture, the learned counsel for the petitionerswould submit that since the petitioners' children are studying invarious schools, the petitioners may be permitted to reside in theproperty till the end of the academic year and they undertake tovacate the premises on or before 1[st] of May 2018. Learned counselhttps://hcservices.ecourts.gov.in/hcservices/also prayed for consideration of allotment of alternative sites tothe petitioners on humanitarian grounds.

13. With regard to the alternative site, it is for theGovernment to decide and this Court has no power to issue suchdirection to the Government in a case of this nature. Since thechildren of the petitioners' are stated to be studying, someleniency is shown to the petitioners and they are directed to vacatethe premises on or before first of May 2018 and if they fail tovacate the premises as undertaken above, the respondents areentitled to seek the assistance of Police Force for removal ofencroachers.

14. It is made clear that if the encroachers are not evictedwithin the stipulated period as stated supra, suitable disciplinaryproceedings will have to be taken against the officials, who areresponsible for evicting the encroachers. It isalso made clear thatfailure on the part of the immediate higher ups in initiation ofdisciplinary action against the erring officials, responsible forremoval of encroachment, will result in dismissal of such higher upsthemselves. No costs. Consequently, connected miscellaneouspetitions are closed.

Sd/-Assistant Registrar(CSI)

/True Copy/

Sub-Assistant Registrar

To:

1. The District Collector, Ramanathapuram District, Ramanathapuram.

2. The Assistant Engineer, Public Works Department / Water Resource Organisation, Parthipanoor Reservoir Section, Paramakudi, Ramanathapuram.

3. Tahsildar, O/o. The Tahsildar, Illayankudi Main Road, Paramakudi, Ramanathapuram District.

+One cc to The Special Government Pleader, SR.no.95159ssl/gk/ar/aebRL/5C/5P/KKR/SAR1/29/1/2018