IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.02.2010 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.Nos.17525,19516 and 19813 of 2009 and Connected Miscellaneous petitions N.Ponsingh ... Petitioner in all the WPs Vs 1.State of Tamil Nadu Rep. By its Secretary, Revenue Department, Fort St.George,Chennai – 600 009. 2.The District Collector, Thiruvallur District. 3.The District Revenue Officer, Thiruvallur District. 4.The Tahsildar, Ambattur Taluk, Thiruvallur District, Ambattur. ... Respondents in all the WPs W.P.No.17525 of 2009 Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of certiorarified mandamus, calling for the records pertaining to the impugned order bearing No.Na.Ka. 7997/2008/C3 dated 14/8/2009 passed by the 4th respondent herein and quash the same and to direct the respondent to consider application of the petitioner dt. 2/4/2004 for leasing the 7.5. cents land situated in Survey No.320/2B and 320/2C in Padi Village, Ambattur Taluk, Thiruvallur District. W.P.No.19516 of 2009 Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of certiorari, calling for the records pertaining to the impugned order bearing No. Na.Ka.7997/2009/C3 dated 15/09/2009 passed by the 4th respondent herein and quash the same. W.P.No.19813 of 2009 Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of certiorari, calling for the record pertaining to the impugned order bearing https://hcservices.ecourts.gov.in/hcservices/ No.Na.Ka.7997/2008/C3 dt.24.9.2009 passed by the 4th respondent herein and quash the same. For petitioner : Mr.K.V.Subramaniam,S.C. For Mr.M.Murali For Respondents : Mr.R.Neelakantan,G.A. C O M M O N O R D E R Heard both sides. 2. In these three writ petitions, the petitioner is one and the same person. In the first writ petition, the petitioner had challenged the order dated 14.08.2009, in which the petitioner was informed that his request for leasing out 7.5 cents of land in S.No.320/2B and 320/2C in Padi Village, Ambattur Taluk cannot be granted. 3. By the impugned order, it was stated that originally these lands were leased out in favour of one V.M.Chacko by a Government Order in G.O.Ms.No.841 Revenue Department dated 11.05.1998. But the lease deed was yet to be executed in his favour and lease amounts were also not paid. The petitioner had purchased the land to an extent of 375 sq.ft by sale from the said V.M.Chacko and registered the same in D.No.12 of 1998 dated 02.01.1998. Therefore, the purchase of Government land by the petitioner is illegal and hence, the request for lease cannot be considered. 4. When the first writ petition came up on 28.08.2009, notice was directed to be taken by the respondents. The respondents were also directed not to take any coercive steps against the petitioner without issuing any notice and without following the procedure prescribed under law. 5. The respondents have filed vacate stay application in M.P.No.4 of 2009 together with the counter affidavit filed by the District Collector, Tiruvallur – the second respondent. 6. In the meanwhile, the petitioner has come forward to file the second writ petition, challenging the order dated 15.09.2009, which is a notice issued under Section 6 of the Tamil Nadu Land Encroachment Act. It was stated that the petitioner must vacate the land to an extent of 650 sq.ft, wherein he is running a shop with a frontage covered by ACC cement sheets. The petitioner instead of giving a reply to the show cause, on the strength of the earlier interim order, had filed the second writ petition. 7. When the matter came up on 18.09.2009, the writ petition was directed to be posted along with the previous writ petition and no interim order was granted. https://hcservices.ecourts.gov.in/hcservices/ 8. The petitioner once again filed a third writ petition, challenging the notice dated 24.09.2009 issued by the Tahsildar, Ambattur that all the encroachment in the MTH Road at Padi in various subdivisions under S.No.881 should be removed. The petitioner's name finds a place at Sl.No.15, wherein he was running a Hardwares Store by name Sabari Wasan Hardwares Stores at S.No.881/4. Notice was also given to his brother Udaisingh in respect of the very same survey number. The petitioner had challenged the said order. This court directed this writ petition to be posted along with the previous writ petitions. 9. Pending the notice, an interim stay was granted on the very day. The respondents have also come forward to file a vacate stay application in M.P.No.2 of 2009 together with supporting affidavit. In view of the interconnectivity among the three writ petitions, the matters were taken up together. 10. It is the case of the petitioner that his brothers Mr.N.Jaysingh, N.Udaysingh and himself are the owners of the property situated at S.No.881, M.T.H.Road, Padi, Chennai. There are 8 shops in a row in the said property. He was in the exclusive possession and enjoyment of poramboke land abutting his property to an extent of 7.5 cents in S.No.320/2B and 320/2C. He was using the said area for storage of the construction materials like Blue metal, Sand, AC Cement Pipe and stoneware pipes. He has a building on the said land and has been using the land for more than 10 years. He also claims that he had purchased the said land from V.M.Chacko through 9 sale deeds. Since there was a difference of opinion between him and the said Chacko with reference to the survey number, the petitioner had filed a suit in O.S.No.307 of 2004 on the file of District Munsif Court, Ambattur. He also claims that the land situated in front of the property of the petitioner is the only approach to his property. He had given many representations to the 2nd and 4th respondents requesting them to lease out the land in his favour. He also claims that his right was an 'Easement by necessity'. He also stated that even when the matter of lease was not considered and pending, notice under Section 6 was served. In that notice, it was stated that notice under Section 7 was served on 31.08.2009. But he was not aware of the same. In that view of the matter, he wanted the impugned orders to be set aside. 11. In the counter affidavit filed by the District Collector, namely the second respondent, it was stated that S.No.320/2B and 320/2C were classified as Dry Assessed Waste land and it was encroached by one V.M.Chacko. He had constructed a shopping complex, partly on his patta land as well as on the encroached land. He also made the Government to issue an order in his favour in G.O.Ms.No.841 Revenue dated 11.05.1988 on certain conditions and that the lease rent was fixed at Rs.12,600/- per annum. The lease period expired on 10.05.1993. Subsequently, it was not renewed and no attempt was made by the Chacko to renew the lease. However, the petitioner, herein illegally purchased the said land by a https://hcservices.ecourts.gov.in/hcservices/ registered document from the said Chacko, who has no legal title to sell the property. Therefore, the department had given a criminal complaint against the said Chacko which is registered on the file of Korattur Police Station in Cr.No.667 of 2004. The petitioner's occupation of the said land is totally illegal. The second respondent had already directed the fourth respondent to lodge a complaint against the petitioner to detain him as a Land Grabber under the Tamil Nadu Act 14/82. A further criminal case was also registered against the petitioner on the file of the Korattur Police Station on 14.08.2009. The request of the petitioner to grant assignment was also rejected by the Tahsildar, Ambattur and appropriate notice was issued under Section 7 of the Tamil Nadu Land Encroachment Act, 1905, which was served on 31.08.2009 by means of affixture on his wall in the land. Since the petitioner was not inclined to receive the said notice, the affixture was made on the wall between shop No.4 and 5 and also in D.No.881/4, MTH Road, Padi, Chennai. In the mean while, the petitioner had filed the second writ petition but no interim order was granted. The petitioner did not remove the encroachment and once again filed the third writ petition. It was stated that there was no 'easement by necessity' and the land was not kept vacant. On the contrary, pucca building, i.e. commercial shops have been constructed in the Government land and they are liable to be removed. The petitioner had not only encroached the Government land but also constructed 8 pucca shops and getting huge income by letting out those shops. The land is situated in a prime locality i.e on the Chennai-Tiruvallur High Road. The petitioner has no legal right to claim that the Government land is of no use to the Government for any purpose. He has no right either to encroach the land or seek for regularisation since appropriate notice has been served on the petitioner as per law. 12. It is also brought to the notice of this Court that the said Chacko had earlier filed a writ petition before this Court in W.P.No.12352 of 1993 challenging the eviction order. The petitioner and his brothers had filed application to implead them as parties. The petitioner's father had also filed W.P.No.6864 of 1996 against the respondents for restoring the land to him. Both the writ petitions were heard and disposed of by a common order dated 20.11.2002. It was observed that some proposals were pending for further lease. But however, this Court did not grant relief as claimed in those writ petitions. Only a direction was given to the State Government to pass appropriate orders based on the recommendation of the Commissioner for Land Administration. Subsequently, the Tahsildar had made some proposals dated 28.06.2004. 13. On the strength of the same, Mr.K.V.Subramanaim, learned Senior Counsel for the petitioner contended that only Government can pass orders on his application pending for an assignment. As per Revenue Standing Order 24 (RSO) 24), it is only the Government which can pass orders. Therefore, the attempt by the Collector to evict the petitioner was illegal. This contention is totally without any basis. https://hcservices.ecourts.gov.in/hcservices/ 14. Under RSO 24, the power for disposal of the said land can be only in favour of certain bodies which are set out in 24.2, which is as follows:- "No application for the disposal of State land under this Standing Order to a company, association or society should be considered unless such company, association or society is a company within the meaning of that would in section 3(1)(i) of the Companies Act, 1956 (Central Act 1 of 1956) or has been registered under the Indian Trade Unions Act (XVI of 1926), the Societies Registration Act (XX1 of 1860), Religious Societies Act (1 of 1880) or the Tamil Nadu Co- operative Societies Act, 1961 (Tamil Nadu Act 53 of 1961), the Multi Unit Co-operative Societies Act, 1942 (Central Act VI of 1942) of the Insurance Act, 1938, or incorporated by an Act of Parliament or of the State Legislature in the Union of India. This order insisting on registration does not apply to religious institutions and political organisation." The petitioner do not qualify under this category. 15. The second claim of the petitioner was that since it is an unused land, it is fit for assignment. The previous person Chacko had a valid lease and therefore, as per the direction issued by this Court, the assignment must be first considered before eviction. Such arguments are only stated to be rejected. With reference to the non-issuance of notice under Section 7, the petitioner himself has prevaricated his earlier stand in paragraph 12 of the written submission. The petitioner had admitted that Section 7 notice was served by affixture on 31.08.2009 at 4 p.m. The further contention that the matter between the petitioner and the Chacko is pending in suit has no relevance to the case on hand. 16. In support of his contentions, the learned Senior Counsel for the petitioner placed reliance upon the following judgments. i)Km.Neelima Misra v. Dr.Harinder Kaur Paintal and others (AIR 1990 SC 1402) to state that there must be fairness in administrative action and the respondents have not shown such fairness. ii) State of U.P and others v. Maharaja Dharmander Prasad Singh etc. (AIR 1989 SC 997) to state that a lessor can resume possession only in a manner known or recognised by law. iii)S.N.Mukherjee v. Union of India (AIR 1990 SC 1984) to state that an administrative action must be supported by reasons. iv)Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan and others (AIR 1997 SC 152) for the purpose of emphasising that before eviction, a clear notice must be given. But in that case, the supreme Court had stated that a removal after notice of encroachment is perfectly valid and the Corporation should always be vigilant and should not allow encroachment in pavements and foot paths. https://hcservices.ecourts.gov.in/hcservices/ v)The learned counsel also placed reliance upon a Full Bench judgment of this Court in Ramaraju v. The State of Tamil Nadu (2005 2 CTC 741). But that judgment did not put an embargo on the removal of the encroachment. On the contrary, held that encroachment of the government land can be done by following procedure contemplated under the Tamil Nadu Land Encroachment Act, 1905. vi)He also placed reliance upon another Division Bench judgment of this Court in V.Arunagiri and others v. The Divisional Engineer, National Highways (1999 MLJ 308) for the purpose of emphasising that without issuing Section 7 notice, notice under Section 6 cannot be issued. vii)The counsel also futher relied upon another Division Bench judgment in D.Satish v. Tahsildar, Sirkali (1998 (III) CTC 215) for the very same proposition. 17. It must be noted that it is admitted by the petitioner that the land in question belonged to Government and that he had encroached the land. It is only M.V.Chacko had a lease over the land in question but his lease had already expired. The challenge made against the termination of lease in the writ petition filed by the petitioner was also rejected by this Court. The only observation made was their claim may be considered by the Government. But however, there was no order restraining the authorities acting in terms of the Act. The reliance placed by the petitioner under RSO 24 has no substance as the petitioner did not qualify in terms of the said Standing Order. The submission that Section 7 notice must precede notice under Section 6 does not apply to the case of the petitioner. In the case of the petitioner, such a notice was already been served which was admitted in his written submissions. It must be noted that it is not a fundamental right to have the encroached land assigned in favour of any individual. It is a matter of discretion of the State Government. The petitioner's request has been rejected by the competent authority. It was also followed by a notice under the Tamil Nadu Land Encroachment Act. The petitioner never utilised the notice period for giving any explanation. Even otherwise, a final order passed under Section 6 can be challenged before an appellate forum which the petitioner never made use of. As set out in the counter affidavit, the petitioner has built a commercial complex on the Government land and by various litigations, he is trying to forestall the eviction by the Government land. This Court do not find any merit in the writ petitions. The contentions raised by the petitioner are misconceived. 18. Accordingly, all the three writ petitions will stand dismissed. No costs. Consequently, connected miscellaneous petitions are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1.The Secretary, State of Tamil Nadu Revenue Department, Fort St.George,Chennai – 600 009. 2.The District Collector, Thiruvallur District. 3.The District Revenue Officer, Thiruvallur District. 4.The Tahsildar, Ambattur Taluk, Thiruvallur District, Ambattur. 2 ccs To Mr.M.Murali, Advocate, SR.10329, 10330 1 cc To Government Pleader, SR.No.10636 W.P.Nos. 17525,19516 and 19813 of 2009 JRG(CO) sra 24.02.2010 https://hcservices.ecourts.gov.in/hcservices/