W.A. No. 309 of 2009 and W.P. No. 13941 of 2009. Case: A. Muniappan Vs Tahsildar. High Court of Madras (India)
| Case Number | W.A. No. 309 of 2009 and W.P. No. 13941 of 2009 |
| Counsel | For Appellant: Chitra Sampath, Senior Counsel for T.S. Baskaran and R. Vaigai for S. Meenakshi, Advs. and For Respondents: P.H. Arvind Pandian, State Government Additional Advocate General assisted by A. Sri Jayanthi, Special Government Pleader, R. Muthukumarasamy, Senior Counsel for A. Jenasenan and S. Ravichandran, Advs. |
| Judges | N. Paul Vasantha Kumar, Meenakshi Sundaram Sathyanarayanan and T.S. Sivagnanam, JJ. |
| Issue | Code of Civil Procedure, 1908 (CPC) - Section 11; Constitution of India - Article 226 |
| Citation | AIR 2014 Mad 215, 2014 (5) CTC 241, 2014 (6) MLJ 257 |
| Judgement Date | August 19, 2014 |
| Court | High Court of Madras (India) |
Judgment:
N. Paul Vasantha Kumar, J.
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These matters are posted before us on the reference made by the Division Bench consisting of Mr. Justice D. Murugesan and Mr. Justice Vinod Kumar Sharma (as they then were) by reference dated 16.11.2010 to answer the following questions:
(i) Whether the earlier orders of the Division Bench in the given case have conclusively decided the issue of applicability of the provisions of Tamil Nadu Land Encroachment Act, 1905 to patta land?
(ii) If not, whether the provisions of the Tamil Nadu Land Encroachment Act can be made applicable even to patta land?
For deciding the first issue, the following facts and orders passed by this Court are to be necessarily considered.
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The Burma Indian Co-operative House Construction Society Limited was formed with an object of rehabilitating the repatriates from Burma with the aid of the Central Government in February, 1968. The said society purchased the land to an extent of 24.57 acres situate in S. Nos. 131/2A, 142, 136/1, 140/1, 141/1, 137/1, 138/2B, 136/2, 131/1A and 130 of Palavakkam Village, Saidapet Taluk and according to the Society in the year 1991 as per the orders of the Director of Rehabilitation, Chennai, 20 Srilankan refuges were temporarily permitted to reside in the said Society land by the District Revenue Authority till alternate accommodation is provided to them. Along with the said Srilankan refuges some local people also encroached into the said lands. According to the appellants and writ petitioners, an attempt was made to dispossess them.
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The association approached this Court by filing W.P. No. 6750 of 1991 praying for a direction contending that in about 4 acres of land situate in Palavakkam village called Tiruvalluvar Nagar, about 230 families are residing for long number of years and on 22.4.1991 the members of the said Tamil Nadu Slum Dwellers Federation were asked to vacate by public announcement and therefore the members went before the Revenue Officials, who in turn informed that the said land belongs to the Burma Indian Co-operative House Construction Society Limited and therefore the encroachers are not entitled to reside in that place. According to the Tamil Nadu Slum Dwellers Federation, which was formed by the encroachers, even assuming that they are encroachers, they can be ordered to be vacated only by following the procedures contemplated under the provisions of the Tamil Nadu Land Encroachment Act, 1905. This Court by order dated 26.4.1991 disposed of the writ petition holding that there seems to be some dispute regarding ownership of the land and without going into the merits of the matter, the District Collector was directed to enquire into the matter on the request made by the Society and pass orders within a period of six weeks after issuing notice to the Federation and till orders are passed, a direction was issued not to dispossess the members of the Federation/encroachers. Pursuant to which, on 14.2.1993 the District Collector, Kancheepuram passed an order stating that he has no jurisdiction to deal with the land as the land is a patta land.
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Again the Tamil Nadu Slum Dwellers Federation filed W.P. No. 14270 of 1993 before this Court on behalf of its members/occupants praying for issuing a writ of mandamus forbearing the District Collector and Others from evicting 230 members in the above said 4 acres of land. In the said writ petition the Burma India Co-operative House Construction Society was impleaded as 5th respondent, who claimed title and contended that the members of the Federation have no right to enter into the land belonging to the Society. Since there was a dispute and due to the pendency of the Civil Suit in O.S. No. 543 of 1993 filed by the Federation and Another suit was pending in O.S. No. 937 of 1992 before the DMC, Poonamallee in respect of the said land, this Court dismissed the writ petition holding that the dispute appears to be of rival dispute, which cannot be decided under Article 226 of the Constitution of India. This Court also expressed displeasure regarding suppression of filing of the civil suit and dismissed the writ petition filed by the Federation.
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The Burma Indian House Construction Society Limited filed W.P. No. 8992 of 1991 and Another association of occupants also filed W.P. No. 15611 of 1993 and those writ petitions were heard together and disposed of on 11.1.1994 holding that a comprehensive suit in O.S. No. 3311 of 1993 was filed against the Society and Revenue Officials, praying for issuance of patta and due to the pendency of the suit, writ petitions cannot be entertained and the parties were directed to abide by the decision of the Civil Court.
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Again the Burma Indian House Construction Society filed W.P. No. 8236 of 2001 for issuing writ of mandamus directing the Revenue Officials to remove all encroachments and unauthorised occupants in respect of the lands allotted and earmarked to the Society in S. No. 131/2A (4.2 acres), Palavakkam Village, Saidapet Taluk and this Court by order dated 25.4.2001 directed the Secretary, Home Department and Secretary Public Rehabilitation Department, Government of Tamil Nadu to consider the representation of the Society and pass orders within a period of four weeks.
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The said Society again filed W.P. No. 38168 of 2002 before this Court praying for removal of encroachments and unauthorised occupants in respect of the lands and order restoration of the same to the Society. In the said writ petition this Court passed order on 9.10.2002, by holding that the relief sought for by the petitioner (Society) to remove the encroachment of the unauthorised occupants from the private property of the Society is not maintainable in law as there is no public duty cast on the official respondents and the Society has no enforceable statutory right to seek removal of encroachment of unauthorised occupants in the private land and granted liberty to approach the competent Civil Court. Having aggrieved over the said order W.A. No. 477 of 2004 was preferred by the Society and the Division Bench of this Court passed the following order on 10.2.2003:
4. Instead of entertaining the appeal, we are of the view that the appellant can be given an opportunity of making a representation afresh to the respondents and the respondents can be directed to dispose of the same on merits.
5. Accordingly, the appellant is hereby directed to give a fresh representation furnishing all the particulars with regard to Survey number and the extent of lands under encroachment within a period of two weeks from today and the fifth respondent, on receipt of such representation is directed to consider the same, after issuing notice to the appellant as well as the alleged encroachers and dispose of the same on merits and in accordance with law, within a period of two months from the date of receipt of the representation.
6. We venture to pass this order since the learned Judge made a remark that the land belongs to a private party and encroachment on a private land cannot be sought to be removed by the State Authority. Here, the appellant being registered under the Societies Registration Act, consisting of Burma Indians and repatriates, and that the same has been formed pursuant to the policy of the Government to rehabilitate them and the entire sale consideration for the land in question has been funded by the Central Government and to see that the said object is not frustrated by unlawful means. We are of the view that suitable relief to the appellant and direction to the fifth respondent are necessary.
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Pursuant to the said direction issued by the Division Bench dated 10.3.2003, the District Collector, Kancheepuram by proceedings dated 17.8.2003 directed the Tahsildar, Tambaram to verify and find out the encroachments in the lands belonging to the Society and file a report. After seeing the report, the Tahsildar was ordered to assign 0.5 acre (1.5 cents) of land at Vengambakkam village for each of the families of the Srilankan Tamil repatriates, who have been temporarily accommodated at the site belonging to Burma Indian Co-operative House Construction Society Limited and resettle at Vengambakkam village along with those who were already settled there. As there was no possibility for any other encroachers to be accommodated in the Tamil Nadu Slum Clearance Board area the Tahsildar directed to remove the encroachments after making necessary arrangements as stated supra and the aggrieved persons were granted liberty to prefer appeal before the Special Commissioner and Commissioner of Land Administration, Chepauk, within 30 days. The Special Commissioner, through memorandum dated 29.10.2003 in the appeal filed by some of the persons, who were in possession, stated that the land in question does not come under the purview of the Tamil Nadu Land Encroachment Act, 1905, and the said Act can be implemented only in respect of the Government Poromboke lands and hence the appellants were directed to approach the competent Civil Court.
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The Residents' Welfare Association (occupants) again filed W.P. No. 29235 and 29330 of 2007 before this Court and the Division Bench of this Court taking note of the earlier orders passed by the Division Bench dated 20.12.2007 as well as the order of the District Collector dated 17.8.2003 and having regard to the fact that the parties are litigating for the past over 13 years on facts held thus,
9. It is clear from the averments contained in the affidavits and counter affidavits that the Petitioners are not entitled to any relief, for the following reasons, viz.,
(a) The order impugned in the writ petitions was passed by the District Collector, only in pursuance of the direction issued by the Division Bench of this Court in W.A. No. 477 of 2003 dated 10.2.2003. The representatives of the encroachers have participated in the enquiry conducted by the District Collector and they have been granted a fair hearing...
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