C.Justin Rajkumar, v. The Chairman,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.11.2018
CORAM
THE HON'BLE Mr. JUSTICE S.M.SUBRAMANIAM W.P.No.21565 of 2018 and W.M.P.No.25315 of 2018 C.Justin Rajkumar
...Petitioner
Vs
1. The Chairman, TANGEDCO, Anna Salai, Chennai - 600 002.
2. The Assistant Engineer, TANGEDCO., Bharathi Salai, Mogappair West, Chennai - 600 037.
3. The Assistant Engineer, TANGEDCO., T.S.Krishna Nagar, Mogappair East, Chennai - 600 037.
4. A.Devanidhi ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying to issue a writ of Mandamus, directing the 1st and 2nd respondent to consider the representation of the petitioner dated 09.07.2018 not to disconnect the electricity service connection to the 2nd shop of the petitioner situated at Door No.145, Vellalar Street, Mogappair, Chennai 600 037 with service connection No.043-029-1 and 043-029-2, and consequently direct the 3rd respondent to restore the service connection within a specific time frame in accordance with law.
For Petitioner :Ms.S.Hemalatha For Respondents:Mr.P.R.Dhilip Kumar for R1 to R3 Standing Counsel for TNEB
O R D E R
The relief such sought for in the present writ petition is for a direction to direct the 1st and 2nd respondent to consider the representation of the petitioner dated 09.07.2018 not to disconnect the electricity service connection to the 2nd shop of the petitioner situated at Door No.145, Vellalar Street, Mogappair, Chennai 600 037 with service connection No.043-029-1 and 043-029-2, and consequently direct the 3rd respondent to restore the service connection within a specific time frame.
2. The learned counsel appearing on behalf of the writ petitioner made a submission that the writ petitioner is running the business of chicken stall under the name and style 'P.J.R.Chicken Centre' and approached the 4th respondent, who is the owner of the premises. Accordingly, the 4th respondent and the writ petitioner entered into a rental agreement and the writ petitioner is running a business in the said premises as a tenant. The Electricity Service Connection was provided in the shop premises occupied by the writ petitioner for running a chicken stall. One Smt.S.Malathy, residing at No.27, Zion Street, Mogappair West, Chennai has filed a public interest litigation in W.P.No.21734 of 2015 before this Hon'ble Court contending that the 4th respondent has encroached the water body area in S.No.
499 and constructed a building and further prayed for a direction to the Government authorities to remove the encroachment and retrieve the public property. The Hon'ble High Court passed an order on 28.03.2016 stating that "We may however notice that as per the counter affidavit filed by the 14th respondent, he is the beneficiary of a Court decree passed in his favour quo the land and thus, he is entitled to utilize the land". Relying on the said order passed by the Hon'ble Division Bench, the learned counsel for the petitioner states that the writ petitioner is entitled to continue in the said premises.
3. The 4th respondent has already filed a Civil Suit in O.S.No.1613 of 1997 before the District Munsif-cum-Judicial Magistrate, Ambattur against the Tamil Nadu Housing Board and the lower Court decreed the suit in favour of the 4th respondent by order dated 15.10.1998. Against the said decree, the Tamil Nadu Housing Board has not filed any appeal till today. The owner of the property in the writ petition is continuing as a tenant is entitled to continue in the said property and further entitled to get the Electricity Service Connection. Once again, the said S.Malathy filed another writ petition in W.P.No.11384 of 2018 for the very same relief praying for a direction to take action against the unauthorised construction and to disconnect the electricity service connection provided by the Assistant Engineer, TANGEDCO, Mogappari West. The protection granted by this Court in W.P.No.21734 of 2015 dated 28.03.2016 was not
brought to the notice of this Court at the time of passing order in W.P.No.11384 of 2018. Further, this Court passed an order on 03.07.2018 as follows:
"Hence, there shall be an order of ad-interim direction, directing the jurisdictional Assistant Engineer, TANGEDCO/ 12th respondent herein to disconnect the electricity service connection to the 10 shops in a question within a period of one week from the date of receipt of a copy of this order".
4. The learned counsel for the respondent relying on the said order informed this Court that the electricity connection was disconnected pursuant to the directions issued by the Hon'ble Division Bench of this Court. Thus, there is no infirmity in respect of the actions initiated by the officials for the writ petitioner Electricity Board.
5. The learned counsel for the petitioner states that the earlier order was not brought to the notice of the Hon'ble Division Bench in writ proceedings in W.P.No.11384 of 2018. Thus, the writ petitioner is entitled for the relief as such sought for in the present writ petition.
6. The growing trend across the state is to encroach the public lands including water bodies and water resources and few greedy men are entering into such actions for their personal gains and for their unlawful enrichments. Public properties are taken away by this greedy men with the collusion of the officials and with the connivance of some land mafias and the local politicians. Large extent of Government poramboke lands, water bodies and water resources are under encroachment by this greedy men. On account of this large scale encroachments, people are frequently suffering from disasters. Thus, disasters are man made and the situation is being well expressed by the experts in the field. The experts in the field are of the strong opinion that in the event of not preserving the water bodies and water resources, the people has to witness large number of such man made disasters in coming days.
7. The Hon'ble Supreme Court reiterated in number of judgments that all such encroachments in water bodies and water resources are to be removed without any leniency. The state cannot show any misplaced sympathy in respect of the encroachments in water bodies and water resources. Thus, encroachments are infringing the constitutional rights of all other citizens in general. Citizen in general are having right to have clean environment and clean water. Unless, this water bodies are preserved, the state may not be in a position to provide clean water to the public at large. Thus, encroachments
are causing lot of inconvenience to the lawful citizens, who all are purchasing the lands in the locality and constructing their houses and residing. Therefore, the encroachments causes not only disasters but violating the constitutional rights of other law abiding citizens. The state cannot be a silent spectator in respect of all these encroachers. The state has got a constitutional duty to evict all such encroachers from the water bodies, water resources and poromboke lands.
8. Undoubtedly, the Government has got the power to implement certain welfare policies for providing the free houses to the landless poor people. However, such schemes are to be formulated to assign the lands for the houseless poor people. In the event of framing a welfare scheme for providing house sites or houses to the poor landless people, the same is to be done by formulating a scheme and considering all the eligible persons who all are eligible to avail the benefit of the scheme.
9. Contrarily, people cannot be allowed to encroach the water bodies and water resources at their whims and fancies and cannot be in possession for number of years, thereby violating law as well as causing infringment to the rights of all other law abiding citizen in this great Nation.
10. This Court is of an opinion that, encroachments are evil menace. Encroachments are causing hindrance to the developmental activities. Government is unable to plan the future developments, on account of large scale encroachments. Even, the actions initiated for the removal of encroachment, itself is a great deal for the officials of the State. The officials at large are also colluding and indulging in corrupt activities. The citizen in general may not know the Government lands and an ordinary citizen is not aware of the lands belongs to the Government and water bodies. It is the officials who identify all such poromboke lands, water bodies and water resources. Thus, without the collusion and assistance of these Government officials, it may not be possible for an ordinary citizen to encroach the Government lands.
The officials who all are responsible are also to be prosecuted and disciplinary proceedings are to be initiated against all such erring officials. The State as well as the competent authorities cannot show any leniency in respect of dealing with such corrupt officials and the officials who all are failing in their duties to evict the encroachments.
11. However, the public officials in the particular locality are passing through all such encroachments every day but they remain as silent spectators for several reasons. Thus, the District Collectors concerned are bound to issue suitable orders to all such sub-ordinate officials and remove the
encroachments and evict the encroachers by following the procedures contemplated under the Tamil Nadu Land Encroachments Act, 1905. In the event of any negligence, lapses or dereliction on duties, the District Collector is bound to prosecute all those officials and initiate disciplinary proceedings against all such officials. This Court has passed number of orders in earlier occasions to initiate actions and the District Collectors at Chennai, Thiruvallur and Kancheepuram are in the process of identifying all such encroachments and the actions are in progress and report has been submitted before this Court. Instructions were issued to the sub-ordinate officials and to the other department officials to identify encroachments in water bodies, water resources and poromboke lands and initiate action to evict the encroachers by following the procedures contemplated under the Tamil Nadu Land Encroachment Act, 1905.
12. The contention of the learned counsel for the writ petitioner is that earlier, the Division Bench of this Court passed an order in W.P.No.21734 of 2015 cannot be relied upon in respect of the facts and circumstances of the present case.
13. First of all, the said writ petition was a public interest litigation filed by one Smt.S.Malathy. The writ petitioner was not a party to the said earlier writ petition.
14. Secondly, the said order was passed by the Division Bench only by recording the counter affidavit filed by the respondent in that writ petition. This Court, subsequently, found in number of writ petitions that the officials are also colluding with such encroachers. Therefore, the said directions now relied upon cannot be of any avail in the present writ petition, on account of the changed circumstances and on account of the fact that the District Collectors are in the process of identifying the encroachments and evicting all such encroachers.
15. However, subsequent orders of the Hon'ble Division Bench dated 03.07.2018 indicates that, during the pendency of the writ petition, directed the Assistant Engineer, TANGEDCO to disconnect Electricity Service Connection in respect of the shops situated in encroached areas and the respondents had acted pursuant to the directions issued by the Division Bench on 03.07.2018. Thus, the very submission made by the learned counsel appearing on behalf of the writ petitioner cannot be considered at all and this Court is of an opinion that, later Division Bench order passed on 03.07.2018 is to be followed for the purpose of implementation of the disconnection of electricity in the encroached premises.
16. Under these circumstances, as per the earlier orders of this Court, the respective District Collectors also initiated
action for eviction of encroachments. This being the factum, this Court is of an opinion that the writ petitioner has not established any acceptable legal grounds for the purpose of considering the relief as such sought for in the present writ petition.
17. This apart, the writ petitioner is a tenant in the encroached land and the owner of the land is an encroacher. Thus, the writ petitioner being a tenant cannot have any right over the property and he cannot defend his case, as he never claim any ownership or otherwise in respect of the shop possessed by him.
18. Accordingly, the writ petition stands dismissed. No costs. Consequently, connected miscellaneous petition is closed. Sd/- Assistant Registrar(CS-IX) //True Copy// Sub Assistant Registrar Pns To
1. The Chairman, TANGEDCO, Anna Salai, Chennai - 600 002.
2. The Assistant Engineer, TANGEDCO., Bharathi Salai, Mogappair West, Chennai - 600 037.
3. The Assistant Engineer, TANGEDCO., T.S.Krishna Nagar, Mogappair East, Chennai - 600 037.
+1cc to Ms.Hemalatha, Advocate, S.R.No. 80621 +1cc to Mr.P.R.Dhilip Kumar, Advocate, S.R.No. 81071 W.P.No.21565 of 2018 and W.M.P.No.25315 of 2018 GN(06/12/2018)