IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 15.12.2009 CORAM : THE HONOURABLE MRS.JUSTICE PRABHA SRIDEVAN AND THE HONOURABLE MR.JUSTICE M. SATHYANARAYANAN W.P.No.5606 of 2008 and M.P.No.1 of 2008 1.Maruthavanan 2.Mayilvahanan 3.M.Gopalan 4.Dr.Gopal Rajendran 5.Mrs.Rajalakshmi 6.A.Kalaiazhagan .. Petitioners -vs- 1.The Commissioner, The Corporation of Chennai, Ripon Buildings, Chennai-600 003. 2.The Collector of Chennai, The Collector's Office, Singaravelar Maligai, II Line Beach Road, Chennai. 3.The Chairman, The Tamil Nadu Slum Clearance Board, Rajaji Salai, Chennai. 4.The Chairman, The Tamil Nadu Water and Sewage Board, Chennai-600 003. 5.The Chairman, Tamil Nadu Electricity Board, Madras-2. .. Respondents Prayer :Petition filed under Article 226 of the Constitution of India praying to issue a writ of mandamus to remove the illegal and unauthorized construction raised in the place earmarked for reading room and school in R.S.No.3180/1, Secretariat Colony, Kilpauk, Madras-10, and further direct the first respondent to restore the 30 feet road on the 5th Street, Secretariat Colony, Madras-10. https://hcservices.ecourts.gov.in/hcservices/ For petitioners : Mr.V.Raghavachari For Respondents : Mr.V.Bharathidasan for R1 Mr.M.Dhandapani, Spl.G.P.for R2 Mr.Y.Bhuvanesh Kumar for R3 Mr.Manoharan for R4 Mr.A.Selvendran for R5 O R D E R (Order of the Court was made by PRABHA SRIDEVAN, J. ) The writ petition was filed by the residents of 5th Street, Secretariat Colony, Kilpauk, Chennai, alleging that some portions of the lands, which were earmarked for Reading Room and School, have been encroached by the slum dwellers of Sivagamipuram Huts. They want the encroachments to be removed and the 30 feet road on the 5th Street, Secretariat Colony to be restored. 2. According to the petitioners, the encroachers have occupied the said Street by raising a wall within and extended their occupation on the road by putting up a cattle pen. The environment is damaged by draining the sullage on the road. Further, some of the occupants have obtained illegal drainage connection, which has resulted in frequent blockage of drainage. Some of them even use the roadside as public convenience, which causes health hazard and it has also become a breeding ground for various insects. Therefore, the petitioners sent a requisition to the respondents on 02.1.2008 for the removal of the illegal encroachments; illegal drainage connection as well as the illegal putting up of the wall. In paragraph 4 of the affidavit filed in support of the writ petition, it is stated that the occupants of the same slum area were ordered to be evicted and relocated elsewhere, by virtue of an order passed in W.P.No.12243 of 1984 and for implementing the said order, a list was prepared and flats were allotted to certain persons. Thereafter, there was a fresh encroachment. 3. When the matter came up for hearing, the learned counsel for the petitioners submitted that repeatedly the Courts have ordered for removal of encroachments and the persons move out for the time being and thereafter, there is a fresh encroachment and, therefore, it is impossible to keep the place encroachment-free. So, we appointed Mr.C.Ravichandran, learned counsel as an Advocate Commissioner on 09.10.2009 to identify and enumerate the persons, who have encroached upon the particular area. 4. The learned Advocate Commissioner has painstakingly enumerated all the persons, who have encroached upon the said land and has also identified them by requesting them to produce ration cards and/or voter identity cards etc. and has given a list of https://hcservices.ecourts.gov.in/hcservices/ encroachers. Out of 69 encroachers, 58 persons have given their names, which are listed in Annexure – I, which stands marked by this Court as Ex-C.1. 5. The report filed by the Advocate Commissioner in Annexure-II stands marked as Ex.C.2 by this Court. A Surveyor Sketch is enclosed therewith, wherein the patta encroachment is marked in yellow colour; the encroachment in the reading room is marked in green colour; the encroachment by hut dwellers is marked in blue colour and the encroachment inside the school is marked in brown colour. 6. The learned Advocate Commissioner has also furnished xerox copies of Road Register, Road Map and Lay out in Annexure-III, which stands marked by this Court as Ex.C.3. All the three Annexures, viz., Annexure – I (Ex.C.1), Annexure – II (Ex.C.2) and Annexure – III (Ex.C.3) shall form part of the records. 7. It appears that there are some encroachments on the part of the petitioners also. The petitioners have filed their reply to the Advocate Commissioner's Report, wherein it is stated that the encroachments on the road facing Barrakka Road adjoining the school is occupied by a real estate broker and a mutton stall and the encroachments have reduced the width of the street and some of them have also extended the encroachments inside the school. The reply also indicates that the claim made by the occupants is really impossible of acceptance, for instance, where the age of the occupant is 28 years, he claims that he has been in occupation for 32 years. We extract the said details hereunder:- Item – I (The occupants age less than 30 years as per Document) S.No. S.No.in List - H.No. Name of the Occupant Years of occupant Age of the occupant 1 2 – 12 Kuppusamy 32 28 Years 2 10 – 15 Mragatham 50 22 Years 3 13 – 15 Munusamy 52 21 Years 4 21 – 15 Srinivasan 50 24 Years 5 38 – 20 Devi 50 21 Years 6 43 – 25 Ramani 40 19 Years 7 54 – 30 Lakshmi 50 22 Years 8 57 – 29 Kanniammal 50 22 Years 9 65 – 34 Jothi 60 23 Years 10 68 – 32 Suganya 50 20 Years 11 69 – 32 Rohini 50 20 Years Item – 2 (The occupants age less than 40 years as per Document.) https://hcservices.ecourts.gov.in/hcservices/ S.No. S.No.in List - H.No. Name of the Occupant Years of occupant Age of the occupant 12 4 – 13 Nagaraj 50 32 Years 13 11 – 15 Semantha 50 33 Years 14 12 – 15 Nagaraj 52 30 Years 15 15 – 15 Parvathi/Arumugam 50 35 Years 16 16 – 15 Parvathi 50 35 Years 17 17 – 15 Kuppammal 50 36 Years 18 19 – 15 Mari 52 32 Years 19 20 – 15 Raji 52 35 Years 20 23 – 15 Dilip Kumar 50 30 Years 21 24 – 21 Kanniappan 50 29 Years 22 28 – 21 Kumar 50 35 Years 23 31 – 22 Kumaran 50 27 Years 24 36 – 19 S.Parameeswari 50 38 Years 25 40 – 19 Gayathiri 40 35 Years 26 41 – 23 Hemavathi 40 25 Years 27 42 – 25 Amutha 40 35 Years 28 47 – 26 Mary 40 32 Years 29 51 – 31 Chandra 50 39 Years 30 55 – 29 Rajeeswari 50 39 Years 31 60 – 29 Kannagi 50 30 Years 32 61 – 29 Jayanthi 50 25 Years 33 67 – 33 Lakshmi 45 35 Years 8. The petitioners have also given a list of persons, who have already been allotted a house at Sathyavanimuthu Nagar House. It is claimed that the following persons or family members of the following persons, who have already obtained alternative accommodation, have again encroached upon this area, so that they can once again get alternative accommodation and that it is unfair to give the same benefit to the members of the same family. S.No. S.No.in List with H.No. Name of the Occupant House No. allotted 1 3 – 13 Alamelu / Ellumalai 811 2 26 – 21 Kannan / Vedagiri 799 3 30 – 21 Damodaran / Munusamy 804 https://hcservices.ecourts.gov.in/hcservices/ S.No. S.No.in List with H.No. Name of the Occupant House No. allotted 4 32 – 22 Santhi / Kathirvelu 798 5 46 – 26 Mangammal / Kannai 807 6 53 – 30 Kannamma / Murugaiah 790 9. When questioned about the compound wall, which is an encroachment on the southern side of the petitioners' houses and which has trees resting on it, the learned counsel submits that without removing the trees, he will try to remove the compound wall and build it within its limits. The said submission is placed on record. 10. Mr.V.Bharathidasan, learned counsel appearing for the first respondent will take note of the details furnished by the Advocate Commissioner in his report as well as the Annexures and take note of the age discrepancy and the claims made by the encroachers and also the guidelines laid down by the Madurai Bench of this Court in Ramaraju, T. -vs- The State of Tamil Nadu (FB) reported in 2005 (2) CTC 741 and take action in accordance with law. Paragraph 38 of the said decision is relevant, wherein the Full Bench has held as under:- ''Para 38. It is of course true that in the two counter affidavits, the municipalities have taken the stand, quite expectedly and understandably, that they have no intention to take any step for removal of any encroachment from the road or road margins without following the due procedure of law and they do not have the intention to take steps for eviction of any person from any land not belonging to the municipalities. However, since the news item appearing in the News Papers gives the impression as if Rajapalayam Municipality intended to remove all encroachments pursuant to the order passed by the High Courts in W.P.No.689 of 2005 and since certain misconceptions have arisen as if the Division Bench has given a blanket direction for removal of encroachment even without following due process of law, the matter is required to be clarified in the following manner: (1)If the encroachment is on road or road margins, vested in Municipalities, the removal if any is to be effected only after following the procedure contemplated in Chapter IX of the Tamil Nadu District Municipalities Act and more particularly the provisions contained in Section 182 and Section 183 (6) before taking action under section 182 of the District Municipalities Act, notice in writing giving https://hcservices.ecourts.gov.in/hcservices/ atleast two weeks time should be served and, if the person avoids to receive the notice, such notice can be effected by affixture. However, notice by any other means, such as through public announcement or beating of drums or by general notice in newspapers, may not be sufficient. (2)The decision in W.P.No.689 of 2005 cannot be construed as having abrogated the statutory power of the Council under sections 182 and 183. The Council may grant licence to put up verandas, balconies, sunshades, weather-frames and the like. Similarly, the Council has power to lease road sides and street margins for occupation on such terms and conditions and for such period as the Council may fix. However, such power under Sections 183(1) and 183(3) should be exercised keeping in view the provisions contained in Section 183(4) and no such licence under Section 183(1) or lease under Section 183(3) should be granted if the projection, construction or occupation is likely to be injurious to health or cause public inconvenience or otherwise materially interfere with the use of the road as such. Any projection or construction put up under Section 183(1) or (2) can be removed on expiry of the licence or the lease, as the case may be. Compensation is required to be paid in matters coming within the scope of 182(2). (3)Payment of property tax, provisions of water connection or electricity by themselves cannot be construed as conferring any independent right, if the encroachment is otherwise unauthorized. (4)The above directions and observations are also applicable to encroachment in respect of road or road margins coming within the jurisdiction of Municipal Corporations or Town and Village Panchayats, in which event, necessary action can be taken by the concerned authorities by following the relevant provisions of law applicable to such Corporations or Panchayats. (5)To the extent the National Highways Act, 1956 and the Control of National Highways (Land and Traffic) Act, 2002 are applicable, action can be taken only by following the procedure prescribed under such statutes. Similarly the provisions of the Tamil Nadu Highways Act, 2001, are applicable to the Roads coming under the State Act. https://hcservices.ecourts.gov.in/hcservices/ (6)If the encroachment is on the land belonging to the Local Authorities, but such land is not part of the road or road margin or roadside land, eviction can be effected by following the procedure contemplated in law, namely, either by taking recourse to the Tamil Nadu Public Premises (Eviction of Unauthorized Occupants) Act, 1975 or any other law applicable or otherwise by taking recourse to Civil Courts and not by use of unilateral force. (7)So far as the encroachment on the land belonging to the Government is concerned, action for eviction if any can be taken only by the appropriate authority and by following the procedure contemplated under the Tamil Nadu Land Encroachment Act, 1905. (8)The directions issued in W.P.No.689 of 2005 are applicable to removal of encroachments on roads and road margins and not other lands belonging to the Local Authorities or the State. The said decision should not be construed as giving a licence to the Local Authorities to cancel the existing license or lease or to remove the encroachments without following the procedure contemplated under the law. (9)If any Civil Courts decree or interim order is holding the field, obviously, no action can be taken, unless and until such a decree or interim order is set aside or vacated in a manner known to law." 11. The writ petition stands disposed of accordingly. Consequently, the connected miscellaneous petition is closed. There will be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar js To 1. The Commissioner, The Corporation of Chennai, Ripon Buildings, Chennai-600 003. https://hcservices.ecourts.gov.in/hcservices/ 2.The Collector of Chennai, The Collector's Office, Singaravelar Maligai, II Line Beach Road, Chennai. 3.The Chairman, The Tamil Nadu Slum Clearance Board, Rajaji Salai, Chennai. 4.The Chairman, The Tamil Nadu Water and Sewage Board, Chennai-600 003. 5.The Chairman, Tamil Nadu Electricity Board, Madras-2. 1 cc To Mr.V.Bharathidasan, Advocate, SR.68862. 1 cc To The Government Pleader, SR.68839. 1 cc To Mr.Y.Bhuvanesh Kumar, Advocate, SR.68768. W.P.No.5606 of 2008 and M.P.No.1 of 2008 KLT(CO) RVL 05.01.2010 https://hcservices.ecourts.gov.in/hcservices/