IN THE HIGH COURT JUDICATURE AT MADRAS DATED 10.11.2010 CORAM THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN W.P.No.776 of 2010 & M.P.No.1 of 2010 Anna Makkal Nala Sangam Represented by the President V.Chinnaiah, Perumpakkam Village, Sholinganallur Taluk, Kancheepuram District .. Petitioner Vs 1.The Secretary to Government Revenue Department Fort St.George, Chennai 600 009. 2.The District Collector, Kancheepuram District, Kancheepuram. 3.The Tahsildar, Sholinganallur-Taluk, Kancheepuram District. 4.Tamil Nadu Slum Clearance Board, Represented by the Chairman, Kamaraj Salai, Chennai 600 005. .. Respondents Prayer: Writ petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus to call for the records in G.O.Ms.No.393 dated 19.8.2010 passed by the first respondent and quash the same and consequently directing the third respondent to issue patta in favour of the petitioner by implementing the G.O.Ms.No.854 Revenue 1(2) Dept. dated 30.12.2006, G.O.Ms.No.34 dated 23.01.2008 and G.O.Ms.No.43 dated 29.1.2010 passed by the Revenue LD.1(2) Department (Amended as per the order of this Court dated 20.9.2010 in M.P.No.1 of 2010 in W.P.No.776/2010) https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.N.G.R.Prasad for Mr.M.Rajendran For Respondents : Mr.S.Gopinathan, Additional Govt. Pleader for R1 to R3 Mr.P.S.Raman, Advocate General for Mr.R.Chellamuthu for R4 O R D E R The petitioner Association representing the cause of their members, who are residing in Nookampalayam, Anna Street, Nethaji Nagar, Muthamil Nagar, Krishnaveni Nagar coming under Ward No.3 in poromboke land Survey Nos.536, 537 and 538 of Perumbakkam Panchayat, Sholingnallur Taluk, Kancheepuram District, had filed this writ petition praying for quashment of G.O.Ms.No.393 dated 19.8.2010 passed by the 1st respondent and consequently directing the 3rd respondent to grant patta in respect of the land in Survey Nos.536, 537 and 538 by implementing the G.O.Ms.No.854 Revenue 1(2) Dept. dated 30.12.2006, G.O.Ms.No.34 dated 23.01.2008 and G.O.Ms.No.43 dated 29.1.2010 passed by the Revenue LD.1(2) Department. 2. The facts necessary for disposal of the writ petition are as follows: 2.1. According to the petitioner Association, it is registered under Tamil Nadu Societies Registration Act, 1975 and it has been formed to take care of the needs of the people, who are residing in the above said places. 2.2. The petitioner would aver that the members of the petitioner Association are poor and down trodden and they are socially and economically backward and they are below the poverty line and most of them are struggling for the basis needs i.e., food, cloth and shelter. It is further averred that the members of the petitioner Association have been occupying small areas of poromboke lands for more than 15 years and by constructing permanent structures, they are residing in their respective houses and they are residing within Survey Nos.536, 537 and 538 of Perumpakkam Village. The said lands are poromboke lands and classified as 'Tharisu', coming under Ward No.3 in Perumpakkam Panchayat. 2.3. The petitioner would further aver that the above said residents are provided with electricity connection, family card, voter identity card and almost all of them are paying property tax to the local bodies and it has also constructed three water tanks to provide water supply to the residents. The Hon'ble Minister for Housing Board, Government of Tamil Nadu has also promised the residents that the Government will build houses for them or they will https://hcservices.ecourts.gov.in/hcservices/ be provided with 2 cents of land each. The children of the residents are studying in local school and there are temples, mosques and churches to cater to the religious needs of the residents. 2.4. During August 2009, the Government authorities came to Nethaji Nagar and Krishnaveni Nagar all of a sudden and demolished more than 500 houses without any notice whatsoever and when the residents questioned, they were informed that the 4th respondent is going to construct tenements. 2.5. According to the petitioner, the residents are entitled to patta in terms of the above said G.O's and the action on the part of the Government authorities are high-handed. Therefore, the petitioner came forward with the present writ petition. 3. In the typed set of papers filed along with this writ petition, copies of ration cards, property tax receipts, electricity board white cards have been enclosed to substantiate the contention of the petitioner. 4. The petitioner has filed an affidavit dated 25.3.2010, alleging that though they had obtained ad-interim injunction in respect of the above said Survey Nos., some of the residents in Survey No.538 were evicted by the 4th respondent on 20.2.2010 and 21.2.2010 and the water supply are also disconnected and so also the electricity supply. Therefore, prayer has been made to restore the electricity service connection and the water supply. 5. This Court vide order dated 25.3.2010, has appointed an Advocate Commissioner to ascertain whether the electricity and water supply are disconnected and as to the present status. In pursuant to the warrant issued by this Court, the Advocate Commissioner has visited the spot and filed his report dated 26.3.2010 stating that out of 11 electricity service connections in Survey No.538, power is available only in respect of 2 houses and that all houses were demolished except a few. The Advocate Commissioner further submitted that though water supply is available in Survey Nos.536 and 537, there is no water supply for the houses situated in the above said Survey Nos. 6. The 1st respondent has filed its counter affidavit dated 30.1.2010 and it is stated among other things that the Government of Tamil Nadu have given permission to the 4th respondent to enter upon the lands bearing Survey Nos.479, 482 to 485, 508 to 511, 516 to 518, 523, 524, 527, 528, 538 to 544 and 546, admeasuring to an extent of 46.65 hectares (115.23 acres) in Perumpakkam Village of Sholinganallur Taluk, Kancheepuram District, for implementing a Housing Sheme to rehabilitate the poor slum dwellers living upon the objectionable lands along Adyar, Cooum river and Buckingham Canal and Tsumani victims vide G.O.Ms.No.51, Revenue [LA5(1)] Department, dated https://hcservices.ecourts.gov.in/hcservices/ 24.1.2007. The 4th respondent intend to develop township consisting of 19928 tenements with all necessary infrastructures on the said lands under Jawaharlal Nehru National Urban Renewal Mission (JNNURM) on top priority basis. Accordingly, the officials of the 4th respondent and the Revenue officials went to the scheme area to carry out the process of evicting the encroachers, but they faced steep resistance. Anti social elements are also started obstructing/preventing the Government officials from discharging their duties and some of them are also indulging in illegal sale of Government lands to others. The 1st respondent further stated that the said persons are trying to grab the lands in the names of poor and escalation of the land cost is a prime factor, leading to the said illegal acts. 7. In respect of Survey Nos.536, 537 and 540 are concerned, the said land admeasuring roughly about 85.90 acres and according to the 4th respondent, the lands in those Survey Nos. are absolutely necessary for the proposed multi-storied tenement constructions. Hence the 4th respondent vide letter dated 7.10.2009 has applied to the 2nd respondent for alienation of the said lands and necessary proposals were also submitted after complying with the procedural formalities. The officials of the 4th respondent visited the lands in the above said Survey Nos. for inspection and enumeration of the newly proposed additional scheme area. 8. In so far as the Government Orders relied by the petitioner Association for grant of patta to the occupants, the 1st respondent have stated that the above said Government Orders are very clear that eligible Government Poromboke lands are available for the assignment of house site, provided that the said lands are no more required for any other public purpose. However, the lands in above said Survey Nos. are required for public purpose for the construction of multi- storied tenement apartments with full infrastructure facilities for the benefit of 20,000 families living in Chennai slums. The 1st respondent would further state that the lands in Survey No.536 is measuring 17.90.0 hectares and is classified as Government Manavari Tharisu and there are about 100 huts which are in damaged condition and they have been put up by way of unauthorized occupation. Survey No.537 measures 18.84.0 hectares and it has been classified as Government Manavari Tharisu and there are approximately 200 authorized occupants, out of which 150 huts lies vacant with damaged condition and encroachments are there in that lands also. Survey No.540 measures 1.62.0 hectares and it comes under the same classification and there are encroachments by way of a church and 10 huts. 9. It is the specific stand of the 1st respondent that all these encroachments and the acts of the members of the petitioner Association/residents are nothing but land grabbing of the public property. The 1st respondent has also stated that this Court vide https://hcservices.ecourts.gov.in/hcservices/ order dated 26.8.2009 and 27.8.2009 in W.P.No.21480/2008 has passed an order for removal of the encroachments in Survey Nos.541, 542, 543, 544 and 546 for the purpose of handing over the same to the 4th respondent for construction of tenements and in respect of the balance Survey Nos. the 4th respondent has done enumerations and identified the persons in actual possession and enjoyment of the portion of the lands and photo identity cards with particulars will be issued to the encroachers and after completion of the construction on the said lands, eligible persons will be allotted tenements. The above said order passed in the writ petition makes it clear that the claim of the persons who are in actual possession and the enjoyment of the lands and who have filed writ petition for grant of patta, should be considered by the 4th respondent for allotment on completion of the project, subject to the condition that they produce sufficient material evidence to prove their possession and enjoyment for 5 years or more on the date of issuance of the Government Order and as per the condition enumerated in G.O.Ms.No.34, Revenue [LD1(2)] Department dated 23.1.2008. 10. The sum and substance of the stand taken by the 1st respondent is that only in the Poromboke lands, which are no longer required for public purpose, the question of considering grant of patta would arise, but in the case on hand, enter upon permission has been given to the 4th respondent to construct 23,864 tenements at a cost of Rs.990/- Crores and enumerations will take place and the eligible persons will be given allotment of tenements. Therefore, the 1st respondent prayed for dismissal of the writ petition. 11. The 4th respondent has filed two counter affidavits dated 9.7.2010 and 4.10.2010 and 2nd additional counter dated 30.8.2010. As per the said counter affidavits, the Perumpakkam lands which is also known as Nookampalayam were handed over to the 4th respondent by Revenue authorities on 9.2.2007 in terms of G.O.Ms.No.51, Revenue LA (5) Department dated 24.1.2007. This scheme site is situated very near to Rajiv Gandhi Road (Old Mahabalipuram Road) and is adjacent to Semmanchery Scheme, which was completed by the 4th respondent for the benefit of the poor and Tsunami victims. 12. The 4th respondent would state that when their officials along with the Revenue officials visited the area for fixing the boundaries, soil testing and to enumerate the encroachers, they found that there are already some encroachers and some fresh encroachers were also attempting to illegally occupy the lands and they along with anti-social elements prevented the officials from discharging their duties. The Nethaji Nagar Kudisai Vazh Nalintha Pirivinar Nala Urimai Sangham represented by its Secretary, filed W.P.No.21480/2008 and this Court has disposed of the said writ petition on 27.8.2009 stating that as and when tenements are constructed, the claim of the petitioner Sangham should be considered, subject to the condition that they shall produce sufficient material evidence to prove their https://hcservices.ecourts.gov.in/hcservices/ possession and enjoyment for 5 years or more on the date of issuance of the above said G.O.Ms.No.51 Revenue LA(5) Department dated 21.4.2007. 13. In so far as Survey Nos.536, 537 and 538, which are the subject matter of the present writ petition, the 4th respondent has stated that Survey No.538 is vested with them and Survey No.536 & 537 are likely to be handed over to them for extending the project area. Enumeration has already been done in Survey No.538 and total number of persons are 167 in numbers and they were issued with tokens and they voluntarily dismantled their residential structures and moved away. The 4th respondent has also denied the demolition of houses and disconnecting electricity service connection and water supply. 14. In the 2nd counter affidavit, the 4th respondent would state that as per G.O.Ms.No.51, Revenue LA(5) Dept. dated 21.4.2007 and G.O.Ms.No.393 dated 19.8.2010, enter upon permission has been given to the 4th respondent for the purpose of implementing the project. In so far as the allegation levelled by the petitioner that Survey No.537 were allotted to Film Employees Federation of South India (FEFSI) and the 4th respondent would state that the said allotment was cancelled. In the 2nd additional counter, the 4th respondent would state that enumerations has been done in Survey No.538 and 167 persons and 18 families were issued with tokens and they refused to receive the tokens issued by them. In so far as grant of patta is concerned, the 4th respondent would state that unless there is no requirement for public purpose, the question of grant of patta would arise. In the case on hand, the lands in question are absolutely required for implementing the scheme for public purpose. 15. In response to the counter affidavit filed by the 1st and 4th respondent, the petitioner has filed a common reply stating among other things that Survey No.537 is likely to be handed over to FEFSI and later on it was cancelled and that Survey No.536 & 537 are still classified as poromboke land. It is further stated that if Survey No.537 is likely to be allotted to FEFSI, the Authorities are under obligation to give patta to the residents of Survey Nos.536 & 538, who are there for more than 15 years. Hence prayer has been made to allow the writ petition. 16. Mr.N.G.R.Prasad, learned counsel appearing for the petitioner would submit that after passing of the G.O.Ms.No.393 dated 19.8.2010 by the first respondent, the prayer made in the writ petition was amended. The learned counsel would further submit that once a decision was taken to hand over possession of lands in Survey No.537 to FEFSI, it has been made clear that the said land is no longer required for public purpose. Once a decision has been taken to cancel the allotment given to FEFSI in respect of the said survey number, the respondents are under obligation to give patta in respect of the lands in the above said survey number along with the adjacent https://hcservices.ecourts.gov.in/hcservices/ lands in Survey Nos.536 & 538 to the members of the petitioner Association. Since Survey No.538 has already been handed over to Slum Clearance Board, the plea made by the petitioner Association for grant of patta in respect of lands in Survey Nos.536 & 537 may sympathetically be considered for the reason that the respective members of the petitioner Association is in occupation of the lands for 15 years by constructing permanent superstructures and they were also provided with electricity service connections and water supply connections and were subject to statutory levies by the local bodies and other authorities and hence they acquire a right to get patta. The attention of this Court was also drawn to various Government Orders. 17. G.O.Ms.No.854, Revenue 1(2) Department, dated 30.12.2006, issued by the 1st respondent makes it clear that persons who are in occupation of Government lands by constructing houses are to be given house site patta. G.O.Ms.No.51, Revenue (5) Dept. dated 21.4.2007, issued by the 1st respondent would state that in respect of Survey No.479/2, Perumbakkam Village, enter upon permission has been given to the 4th respondent to construct tenements for Tsunami victims. The 1st respondent has issued G.O.Ms.No.34, Revenue 1[LD1(2)] Department dated 23.1.2008 stating that the eligible criteria period for regularization of encroachments in Government lands by way of dwelling houses has been reduced from 10 years to 5 years. The said period of 5 years was further reduced to 3 years by G.O.Ms.No.43 dated 29.1.2010 issued by the 1st respondent and the validity of the said G.O is challenged by the Sivakasi Region Tax Payers Association by filing a public interest litigation and operation of the order has been stayed by this Court. 18. In so far as G.O.Ms.No.393 dated 19.8.2010, which is the subject matter of challenge in this writ petition, the learned counsel would submit that the said order came to be issued in the malafide object of evicting the petitioners who are in occupation for more than 15 years and there is no public purpose involved. It is further submitted by the learned counsel appearing for the petitioner that inspite of interim orders, which are in operation, enter upon permission has been given to the 4th respondent in respect of lands in Survey no.536 & 537 and the said act on the part of 1st respondent would indicate that the 1st and 4th respondent are bent upon to evict the members of the petitioner Association and other residents. It is the further submission of the learned counsel appearing for the petitioner that the act on the part of the respondents are actuated by malafides and bristled with arbitrariness which are in violation of Articles 14 and 15 of the Constitution of India. The learned counsel appearing for the petitioner would further contend that in the event of eviction of the members of the petitioner Association, the respondents are not providing with any alternate accommodation as done earlier and as a result, the children of the members of the petitioner Association, are the persons who are ultimately affected, https://hcservices.ecourts.gov.in/hcservices/ as they are studying in nearby schools/colleges. Therefore, for the above said reasons, the learned counsel appearing for the petitioner prayed for quashment of the impugned Government order and grant of consequential reliefs. 19. Per contra, Mr.P.S.Raman, learned Advocate General appearing for the 4th respondent would vehemently contend that the lands in Survey Nos.536 & 537 are admittedly Government Manavari Tharisu lands and they are required for the above said public purpose i.e., for the noble object of providing housing accommodation to slum dwellers and persons who are on the banks of Adyar, Cooum river etc., and also to Tsunami victims. Since the water ways are going to be cleaned, the persons living on the banks of those rivers are being evicted and they will be given accommodation along with other eligible persons, as and when construction of the tenements by the 4th respondent is completed. The learned Advocate General would further submit that the members of the petitioner Association and others are rank encroachers and it is false to contend that they are in occupation for more than 15 years. The sole object of the members of the petitioner Association is to occupy the lands illegally and sell the same to some land sharks by taking advantage of the fact that the lands are situated very close to Rajiv Gandhi Road (Old Mahabalipuram Road) and cost of those lands has increased manifold due to establishment of number of industries, especially Information Technology Parks. 20. As regards the claim made by the members of the petitioner Association for grant of Patta is concerned, the learned Advocate General would submit that only if Government lands are not required for public purpose, their claim can be considered, subject to the fulfillment of the eligibility norms. The learned Advocate General has also drawn the attention of this Court to the order dated 26.8.2009 passed in W.P.No.21480/2008, wherein similar issue arose for consideration and the learned Judge after taking into consideration of the rival submissions made therein and in the consent of the respective counsel has passed the following order: “7..... (1) The members of the petitioner's sangam who are in actual physical possession of the portions of the lands, in Survey No.541, 542, 543, 544 and 546 as per the learned Advocate Commissioners would be relocated to Semmanchery immediately. The undertakings given by the petitioner's sangam on behalf of all the members are binding and that they would abide by the same. (2) The request of the members of the Sangam who are in actual physical possession and enjoyment of the lands, in the above said survey numbers as per the report of the learned Advocate Commissioners and who have filed the present writ petition for grant of patta through the petitioner's sangam https://hcservices.ecourts.gov.in/hcservices/ should be considered by the resondents for allotment of tenements, on completion of the project, subject to the condition, that they produce sufficient material evidence to prove their possession and enjoyment for five year or more, on the date of issuance and as per the condition contained in G.O.Ms.No.51 Revenue (5) Department dated 24.1.2007 on the same terms and conditions, which are intended to be imposed on the beneficiaries of the above said project. (3) As the learned Advocate Commissioners, with the help of the concerned officials have identified the persons in actual physical possession and enjoyment of the portion of lands in above said survey numbers, the services of the learned counsel shall be utilized for the purpose of identifying and relocating those who are in actual physical possession, as per their report. 8. In as much as, the order is passed, with the consent of learned Senior Counsel appearing for all the parties, and having regard to the undertaking given by the petitioner's sangam admitting that its members would subject themselves for relocating without any objection whatsoever, there is no need for continuance of injunction, which has stalled the implementation of the project. Hence the injunction granted by this Court on 29.8.2008 in M.P.No.2 of 2008 dated 29.8.2008 is vacated. It is open to the respondent to implement the project and complete the same as expeditiously as possible.” 21. The learned Advocate General would submit that in pursuant to the enter upon permission given to the 4th respondent in terms of the impugned Government Order under JNNURM Scheme, the officials of Revenue and the 4th respondent are permitted to visit the site, do their enumerations to find out the numbers of structures, period of/state of encroachers on those lands. If the persons, who are residing there for more than 5 years and subject to the production of proof of residence, will be issued with identity cards and on being vacated from the respective premises, superstructures will be put up and they will be given allotment. With regard to providing alternate accommodation is concerned, the learned Advocate General on instructions would submit that as on date no flats are available in Okkiyum, Thoraipakkam or any other places. However, steps will be taken in right earnest to find out alternate accommodation to accommodate persons who may face eviction. 22. In response to the said submission, the learned counsel appearing for the petitioner, has drawn the attention of this Court to the decision rendered by the Division Bench of this Court in Sivakasai Region Tax Payers Association v. State of T.N reported in (2008) 5 MLJ 1425, wherein challenge was made to the impugned https://hcservices.ecourts.gov.in/hcservices/ Government Orders issued by the Revenue Department with regard to the assignment of water course poromboke lands and regularization of certain encroachments. In para 28 to 30, it has been observed as follows: “28. We do not think it may laid down as a matter of general principle of law that irrespective of the question as to whether the land in question is required for any public purpose or not, there should be eviction. It should not be understood for a moment that we are suggesting that all encroachments should be regularized or encouraged. But, if the State Government takes a conscious decision to regularize certain encroachments, which have continued for a pretty long period after the appropriate authority comes to a conclusion that such land is not required for any public purpose or