IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.12.2009 CORAM: THE HON’BLE MR.JUSTICE K.CHANDRU W.P.Nos.27523,27524,27260,27253,27269, 28950 to 28955,18154 to 18156,20426 to 20429, 21926 to 21929,22256,25102 of 2007, 30121 of 2005 and connected miscellaneous petitions K.Subramani ... Petitioner in W.P.27523/2007 K.Arumugam ... Petitioner in W.P.27524/2007 M.Marinuthu ... Petitioner in W.P.27260/2007 C.Rajendran ... Petitioner in W.P.27253/2007 R.Soundar ... Petitioner in W.P.27269/2007 A.Kalaiyappan ... Petitioner in W.P.28950/2007 G.Sivakumar ... Petitioner in W.P.28951/2007 G.Sekar ... Petitioner in W.P.28952/2007 G.Venkatachalam ... Petitioner in W.P.28953/2007 A.Murugesan ... Petitioner in W.P.28954/2007 C.Madhaiyan ... Petitioner in W.P.28955/2007 K.Venkatachalam ... Petitioner in W.P.18154/2007 A.Mohan ... Petitioner in W.P.18155/2007 P.Manimegalai ... Petitioner in W.P.18156/2007 M.Narayanan ... Petitioner in W.P.20426/2007 R.Rameshkumar ... Petitioner in W.P.20427/2007 M.Nallammal ... Petitioner in W.P.20428/2007 P.Molaiya Gounder ... Petitioner in W.P.20429/2007 M.Rani ... Petitioner in W.P.21926/2007 Ramani @ Ramaniyammal ... Petitioner in W.P.21927/2007 Jayalakshmi ... Petitioner in W.P.21928/2007 C.Kunju Muthan ... Petitioner in W.P.21929/2007 Kaliyammal ... Petitioner in W.P.22256/2007 R.Ramesh Kumar ... Petitioner in W.P.25102/2007 M.Marimuthu Sekar, Annammal C.Madhaiyan ... Petitioner in W.P.30121/2005 G.Sivakumar Murugesan Kalaiyappan Vs 1.The District Collector, Collectorate, Salem District. 2.The Tahsildar, Omaluk Taluk Office, Salem District. ...Respondents in all Wps except W.P.25102/07 & WP 30121/2005 https://hcservices.ecourts.gov.in/hcservices/ 1 THE DISTRICT COLLECTOR COLLECTORATE SALEM DISTRICT. 2 THE TASHILDAR OMALUR TALUK OFFICE, SALEM DISTRICT. 3 THE BLOCK DEVELOPMENT OFFICER OMALUR UNION OFFICE OMALUR TALUK, SALEM DISTRICT. ... Respondents in W.P.25102/2007 1 THE DISTRICT COLLECTOR SALEM DISTRICT. 2 THE TASHILDAR OMALUR TALUK OFFICE, SALEM 3 THE COMMISSIONER, UNION OFFICE, OMALUR, SALEM DISTRICT. ... Respondents in W.P.30121/2005 W.P.27523,27524/2007, 27269/07: Petition under Article 226 of the Constitution of India praying for a Writ of mandamus, to direct the respondents to issue patta to the petitioner house site, Survey No.57 situated at Majulapallam, Vellakalpatti Post, Omalur (Taluk), Salem District as per G.O. (Nilai) No.854 dated 30.12.2006. W.P.NO.27260/2007; 27253/2007: Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Mandamus,to direct the respondents to issue patta to the petitioner house site Survey No.176/2 situated at Boominayakkanpatti Omalur Taluk and Salem Dist. as per G.O. (Nilai) No.854 dated 30.12.2006. W.P.NO.28950/2007, 28951/2007, 28952/2007, 28953/2007, 28954/2007, 28955/2007: Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Mandamus,to direct the respondents to issue patta to the petitioner house site, survey No. 124/3, situated at Karuppur, Mettupaguthi Village, Omalur Taluk, Salem District, as per G.O (Nilai) No. 854 dated 30.12.2006. W.P.18154/2007; 18156/2007: Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Mandamus,to direct the respondents to https://hcservices.ecourts.gov.in/hcservices/ issue patta to the petitioner,relating to his property situated in survey No.680-7/1-42A, Karambakadu, Denishpettai village, Salem as per G.O.(Nilai)No.854 dated 30.12.2006. W.P.No.18155/2007: Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Mandamus,to direct the respondents to issue patta to the petitioner, relating to his property situated in survey Nos.680/10 & 680/11 KADAYAMPATTI village, Salem as per G.O. (Nilai)No.854 dated 30.12.2006. W.P.21929/2007: Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Mandamus,to direct the respondents to issue patta to the petitioner house Door No.6/79, in survey No.183- 1A M.Olaipatti Manathal Post, Omalur Taluk, Salem District as per GO (Nilai) Revenue Department No.854 dated 30.12.2006. W.P.22256/2007: Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Mandamus,to direct the respondents to issue patta to the petitioners land in survey No.4/4; spread over 2.51 acres and in survey No. 4/1, spread over 21 cents situated at Jegadevan patti, Asarikadu, Vellalapatti Panchayat Vattakadu Post, Omalur Taluk, Salem District. W.P.No.25102/2007: Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Mandamus, Forbearing the respondents from interfering the petitioners present possession and peaceful enjoyment in Survey No.15/2 Vattakadu Post, Omalur Taluk, Salem District. W.P.No.30121/2005: Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Mandamus,to direct the respondents to provide alternative place to the petitioners in order to construct house before the eviction process will start and pass orders. W.P.No.20426/2007: Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Mandamus, to direct the respondents to issue patta to the petitioners house situated in No.4/69 Vattakadu Kuruvampatti Thekkampatti Omalur Taluk, Salem District as per G.O. (Nilai) No.854 dated:30.12.2006. https://hcservices.ecourts.gov.in/hcservices/ W.P.Nos.20427/2007, 20429/2007: Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Mandamus,to direct the respondents to issue patta to the petitioners house site situated at Karuppur (via) Vattakadu Post Situated at Vattakadu Post, Omalur Taluk, Salem District, as per G.O. (Nilai) No.854 dated: 30.12.2006. W.P.No.20428/2007: Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Mandamus, to direct the respondents to issue patta to the petitioner house in survey No.164/1 spread over 1.90 cents, Omalur Taluk, Salem District as per G.O. (Nilai) No.854 dated: 30.12.2006. W.P.21926/2007; 21927/2007; 21928/2007: Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Mandamus, to direct the respondents to issue patta to the petitioner house Door No.3/184; and 3/194; 3/185 in Survey Nos.65; 65/10 Mettur Main Road, Tholasamapatti Post, Omalur Taluk, Salem District as per G.O.(Nilai) Revenue Department No.854 dated : 30.12.2006. For Petitioners in W.P.Nos.28950 to 28955 of 2007 : Mr.C.Prakasam In other WPs : Mr.P.Vijendran For Respondents : Mr.R.Neelakandan,G.A. C O M M O N O R D E R Heard both sides. 2. The petitioners, in all these writ petitions seek for a direction to the respondents namely, the District Collector and the respective Tahsildars for grant of Patta to their house sites situated in various survey numbers in terms of G.O.Ms.No.854 Revenue dated 30.12.2006. 3. The claims of the petitioners were that they are in possession of the land either by purchase from previous occupier or that their fore-fathers were in possession and enjoyment of those lands. They had constructed their houses in the land in question. 4. The State Government had issued G.O.Ms.No.854 Revenue dated 30.12.2006 for grant of house site Pattas as an One Time Scheme. The said Government Order has provided several guidelines. The Government Order also contemplated that those who were coming within the purview of the Government Order and those who were in possession of the land for more than 10 years and living in the https://hcservices.ecourts.gov.in/hcservices/ said house site after constructing house, those encroachments can be regularised within six months, i.e. January 2007 and house site Pattas will be given to the appropriate beneficiaries. The Government also provided for constitution of a committee comprising of Revenue Officials to find out whether patta can be given and whether the lands in question were unobjectionable. It is also set out in the Government Order that if a person who is occupying the said land, is not otherwise entitled for a free house site patta, then value of the land should be fixed on the basis of guideline value for that area. 5. Notice was ordered in all these writ petitions. Since the issues raised in all these writ petitions are common, they were grouped together and a common order is passed. 6. In all these writ petitions, the respective Tahsildars have filed counter affidavits. In the counter affidavits, three types of objections were raised by them. The first objection was that the persons are holding unauthorisedly lands which are classified as 'Eri' (Village tank)in Karuppur and Vellakkalpatti villages. These village tanks used to receive inflow of rainwater from the south- western slope of Sherveroys Hills on the east and serves as a major source of water for over six village tanks downstream. Since the encroachment are obstructing the passage of water, the petitioners' claims cannot be considered. 7. The second objection taken by the respondents was that the petitioners were liable to be evicted and eviction proceedings were also underway. Thirdly, it is submitted that G.O.Ms.No.854 dated 30.12.2006 is under stay by this Court in W.P.No.22274 of 2007 dated 02.06.2007. 8. Apart from this general contention, in respect of W.P.Nos.18154 to 18156 of 2007, they have raised an objection that these petitioners are not eligible for any special concession for allotment of house site. The petitioner in W.P.No.18154 of 2007 (K.Venkatachalam) was a Police Officer and has no right to encroach a Government land. It was also stated that these persons were not residents of the respective villages. It was further stated that the petitioner in W.P.No.18156 of 2007 (P.Manimegalai) is the daughter of K.Venkatachalam, who was a Police Officer. 9. Though in respect of W.P.No.18155 of 2007 (A.Mohan) it was stated that he is a Government Servant, Mr.P.Vijendran, learned counsel for the petitioner stoutly denies the fact that he is a Government servant. He also submitted that G.O.Ms.No.854 provides for two types of allotment; firstly, for persons who are the beneficiaries are entitled for free house site pattas. But those who are not eligible under the free house site scheme, land value should be fixed on the basis of guideline value. The petitioners in these writ petitions are willing to pay the guideline value fixed by the State Government. It is in the light of the same, the petitioners sought for the relief set out earlier. https://hcservices.ecourts.gov.in/hcservices/ 10. The petitioners have demanded a positive direction for grant of patta since grant of patta is based upon an One Time Scheme framed by the Government vide G.O.Ms.No.854 dated 30.12.2006, Unless the petitioners satisfy the conditions stipulated therein, the question of grant of any positive direction will not arise. At the same time, the contention raised by the respondents that G.O.Ms.No.854 under which the benefit is sought for is stayed by the Court cannot be accepted because the said writ petition came to be disposed of by a Division Bench of this Court presided by P.K.Misra,J. (as he then was) on 29.04.2008.in the case of Sivakasi Region Tax Payers Association v. State of Tamil Nadu, rep. By its Secretary to Government and others. The said judgment has subsequently been reported in (2008) 5 MLJ 1425. 11. In paragraph 32 of the said judgment, the Division Bench had passed the following order:- "32.In the light of the above discussion, W.P.No.22274 of 2007 is disposed of with the following observations and directions: (i)G.O.Ms.No.854 (Revenue) dated 30.12.2006 is not illegal. (ii)The above G.O. must be read along with the provisions of the Tamil Nadu Land Encroachment Act, the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act and the Standing Orders of the Board of Revenue. (iii)The Committee before granting patta is first required to find out whether the provisions contained in the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act are applicable, in which event the question of eviction has to be considered in the light of the provisions contained in the said Act. (iv)If the provisions of Tamil Nadu Protection of Tanks and Eviction of Encroachment Act are not applicable, the Committee is required to consider whether appropriate action should be taken under the Tamil Nadu Land Encroachment Act, keeping in view the directions issued by the High Court in the judgment referred to in the G.O. or whether the land can be settled. (v)Before settling the land, the requirements indicated in the impugned G.O as well as the Revenue Standing Orders are to be kept in mind. (vi) If it is decided to remove the encroachers, it can be done only by following the procedure contemplated under law as highlighted in the Full Bench decision in L.Krishnan v. State of Tamil Nadu, https://hcservices.ecourts.gov.in/hcservices/ rep. By its Secretary, Department of Revenue (Land Development) Chennai and others (supra)." 12. Therefore, as found in paragraph 32(i), the Government Order is held to be valid and it is operational. There will be no difficulty for the respondents in considering the claims of the petitioners. Secondly, even if the provisions of Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007 is pressed into service, then the Act requires measures for checking the encroachment, eviction of encroachment in tanks which are under the control and management of Public Works Department. 13. Section 2(l) defines the tank as under: "2(l) 'tank' means a storage structure built in for harnessing water for use and includes supply channel and its cross masonries, tank sluice,surplus weir, surplus course and its cross masonries; field channel and its cross masonries besides the drains and tank poramboke lands which are under the control and management of Public Works Department;" 14. Section 3 of the Act obliges the Government to undertake a survey with reference to the records available with the Revenue Department, of tanks in every district for the purpose of determining their limits in respect of the area and that proper charts and registers be prepared setting forth the channel and all boundaries and marks necessary for the purpose of identifying such limits. 15. Therefore, the State Government in order to evict encroachers of tanks will have to first undertake survey work. In this context, the learned counsel for the petitioners contend that the tanks which were referred to in the counter affidavit are no longer in existence on the plea that either they have become house sites or used as cultivable land. Therefore on the basis of old records, they cannot refuse to consider the claim of the petitioners. 16. In this context, it is necessary to refer to paragraph 24 of the Sivakasi Region Tax payers Association case (cited supra), wherein, the Division Bench had observed as follows: "24.Since such G.O has to be read along with other Rules as well as the existing Revenue Standing Orders, it is obvious that any land which is still continuing as water source either for the purpose of drinking or for the purpose of irrigation cannot be assigned. Similarly, the Committee headed by the Collector is also required to find out whether such land is required by the Government or required for the public use. Since all these restrictions and safeguards have been envisaged, we do not find there is any inherent lacuna as such in the G.O.Ms.No.854 (Revenue) dated https://hcservices.ecourts.gov.in/hcservices/ 30.12.2006." 17. Therefore, there is an obligation on the part of the respondents to consider the claim of the petitioners in the light of G.O.Ms.No.854 and also in view of the provisions of Protection of Tanks and Eviction of Encroachment Act, 2007. For this purpose, necessary exercise will have to be undertaken since the petitioners are sought to be non-suited on the ground that G.O.Ms.No.853 is under stay and that ground is no longer available now. The Division Bench has also interpreted both the Government Order of the year 2006 and the Act of the year 2007 and has given certain guidelines. It is for the respondents to apply those guidelines and arrive at an appropriate conclusion. 18. It is also brought to the notice of this Court that in some of the cases, the subordinate Revenue Officers themselves have recommended the case for grant of Patta stating that the lands are not objectionable. In all the counter affidavits, a common objection was raised by the respective Tahsildars. Paragraph 9 of the counter affidavit reads as follows: "9. I submit that the petitioner in Para-5 has prayed for consideration of his claim for Patta as per the one time scheme vide G.O.Ms.No.854/Rev.L.D.1(2) Department dated 30.12.2006. The above G.O has its limitations about encroachment of water bodies and watercourse Porambokes. The petitioner is in occupation of village tank area. The village tanks, watercourses and waterways are vested with the concerned village panchayats for administration maintenance etc and the tanks are being desisted deepened and bunds are strengthened for the increased storage of rain water for the benefit of the farmers and the general public to recharge the public drinking water wells and irrigation wells. The particular Nallappan Kuttai tank act as the ground water source for our 200 wells in both villages of Karuppur and Vellakkalpatti. Therefore, in public interest and welfare, the encroachments of village tanks are cleared as a policy of Government. The Honourable High Court in W.P.No.22274 of 2007 dated 02.06.2007 has stayed the operation of the Government orders in G.O.Ms.No.854/Rev.Dept/Dated 30.12.2006 in so far it related to water bodies and water course poramboke lands." 19. Whether the said statement has been made in terms of ground reality or on the basis of old records is an issue which will have to be considered by the District Collector, Salem and he should not go by mere records, as found by the Division Bench in Sivakasi Region Tax payers Association case (cited supra) in paragraph 27, which is as follows: "27. While there cannot be any dispute regarding the https://hcservices.ecourts.gov.in/hcservices/ sentiments expressed in such decision, the question remains that if any particular pond or water channel, artificial or may be even natural has fallen into dis- use for a very long period, whether a direction can be issued for eviction irrespective of the question as to whether the persons who have encroached upon such land have acquired any right under the Law relating to limitation or under any policy of the State where the State Government in its wisdom decides to confer certain right on such persons." 20. In the light of the above binding legal precedent and factual matrix, all these writ petitions will stand disposed of with a direction to the first respondent-District Collector to consider the case of the petitioners in accordance with law and in the light of the observations made herein. The first respondent shall take an appropriate decision within a period of three months from the date of receipt of the order and shall communicate the result to the petitioners. Till such time, status quo as on date shall continue. No costs. Consequently, connected miscellaneous petitions are closed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar svki To 1.The District Collector, Collectorate, Salem District. 2.The Tahsildar, Omaluk Taluk Office, Salem District. 3.The Block Development Officer, Omalur Union Office, Omalur Taluk, Salem District. 4.The Commissioner, Union Office, Omalur, Salem District. 1 cc to Government Pleader, Sr.No.67511 to 67513; 67515 to 67517; 67519, 67521 to 67523; 67525 W.P.Nos.27523,27524,27260,27253,27269, 28950 to 28955,18154 to 18156, 20426 to 20429,21926 to 21929,25102 22256, of 2007 and 30121 of 2005 TS {CO} TP/21.1.2010. https://hcservices.ecourts.gov.in/hcservices/