Madheswaran v. The Assistant Engineer
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on ::19.8.2015 Delivered on :: 26 .8.2015
CORAM:
THE HONOURABLE MR.JUSTICE SATISH K. AGNIHOTRI AND THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN W.P. No.25213 of 2014 1 Madheswaran Sivasakthi welding works rep. by Madheswaran 2 Palani Ammal 3 Elumalai 4 Elumalai Sri Amman Grill Works rep. by Elumalai 5 Ayyan Durai S/o.Aanai Gounder 1 to 5 are residing Door No.8 (1G) 7(1F) 1/7 & 7 Near Railway Station Sooramangalam Salem-5 ...
petitioners versus 1 The Assistant Engineer Construction and Section High Ways Department Gandhi Nagar Hastampatti Salem 2 The District Collector Collector Office Salem District 3 The Tahsildhar Taluk Office Salem 4 Executive Engineer Tamilnadu Electricity Board Subramania Nagar Sooramangalam Salem-5 ...
respondents Writ Petition filed under Art.226 of the Constitution of India praying for a Writ of Certiorarified Mandamus Calling for the records pertaining to the Impugned Notice Ku. No.:/ encroachment/ 2014 VU.Po dated 9.9.2014 issued by the 1st respondent and quash the same.
For petitioner : Mr.P.Tamilvel For Respondents : Mr.P.S.Sivashanmugasundaram, Spl.G.P.
For respondents 1 to 3 Mr.S.K.Rameshuwar, for R-4
O R D E R
K.K.SASIDHARAN, J.
This Writ Petition is directed against the eviction proceedings initiated by the Highways Department for construction of a limited use subway at Suramangalam - Tharamangalam road in view of the existing railway level cross between Salem Junction and Magnesite Railway Stations.
The facts :-
2. The petitioners are stated to be in possession and enjoyment of the Government land bearing D.No.8 (1G), Near Railway Station, Sooramangalam. The petitioners have constructed a tiled house besides shops and they have been conducting a petty shop and grill industry, after obtaining permission from the statutory authorities.
3. While so, the first respondent issued a notice dated 20 June 2014 intimating the petitioners that they are in unauthorized occupation of public property and they should remove the encroachment within a period of 7 days. The petitioners filed Writ Petition in W.P.No.17860 of 2014. The High Court dismissed the Writ Petition with liberty to submit explanation.
4. Subsequently, the first respondent issued notice on 9 September 2014, calling upon the petitioners to remove the encroached portion within a period of seven days. According to the petitioners, the entire extent of land is not necessary for the purpose of construction. The petitioners are prepared to surrender 5 to 10 feet of land situated on the front side for construction of subway.
5. The notice issued by the first respondent is challenged primarily on the ground that the land belongs to the Government and as such, the Highways Department has no authority to evict them.
6. The first respondent filed a counter affidavit in answer to the contentions raised in the affidavit filed in support of the Writ Petition. According to the first respondent, petitioners are in unauthorized occupation of the land belonging to the Government as well as the Highways Department. The Highways Department rightly initiated proceedings against the petitioners as major portion of the subject land belongs to the said Department. The Highways Department further contended that the construction of limited use subway is being carried out by the Highways Department and the Railways and the work is nearing completion. In case the construction made by the
petitioners is not removed, it would not be possible to complete the work in question.
Rival submissions :-
7. The learned counsel for the petitioners contended that the property in question belongs to the Government. Even in the counter statement filed by the Tahsildar, Salem, in the interlocutory application in O.S.No.419 of 2012, before the District Munsif, Salem, the Government have admitted that the land is classified as "Odai Poromboke". Such being the nature of ownership, the Highways Department is not entitled to evict the petitioners. The learned counsel further contended that the petitioners have already earmarked the front portion for construction of subway. There is no requirement to take the remaining extent of land at this point of time.
8. The learned Additional Government Pleader supported the eviction proceedings. According to the learned Additional Government Pleader, majority of the land in possession of the petitioners belongs to the Highways Department and as such, the Department was perfectly correct in initiating eviction proceedings.
9. We have also heard the learned Standing Counsel for the Tamil Nadu Electricity Board.
Analysis :-
10. The petitioners have come up with a contention that they are in possession of Government land described as Odai Poromboke and they have been living there after constructing residential houses, besides shops and a tiny engineering unit.
11. The first respondent initiated eviction proceedings as part of the work commenced by the Department along with the Railways, to construct a subway. The first respondent made it very clear that the land in question belongs to the Railways. Only a small portion of the land belongs to the Government, being Odai Poromboke. There are no documents produced by the petitioners to show that the property absolutely belongs to the Government and as such, the Highways Department has no authority to evict them.
12. The petitioners have no case that they have not been issued notice before passing eviction order by the first respondent. The petitioners were given sufficient opportunity to represent their case. It was only thereafter, the first respondent passed the impugned order of eviction.
13. The petitioners have already filed a suit in O.S.No.419 of 2012 against respondents 2 and 3. Nothing prevented the petitioners from impleading the first respondent and contest the suit on merits. The petitioners have no case that the Civil Court granted injunction restraining the respondents from evicting them from the public property.
14. The first respondent has produced documents to substantiate the contention that the property in question is required for a larger public purpose namely construction of limited use subway between Soolamangalam and Tharamangalam. At present, there is a level crossing and the same should be replaced by a subway. It is only for the said purpose, the Highways Department, in association with the Railways, have started the work. The work is stated to be in the final stage. It is the contention of the petitioners that the entire land is not necessary for the construction in question. It is not for this Court to decide as to whether the entire land in the possession of the petitioners, including the buildings, are required for the railway project. It is essentially an issue to be decided by the first respondent and the Railways.
15. The petitioners are admittedly in possession of a public property. The adjoining lands have all been taken over by the Highways Department and the construction work is in the final stage. Such being the factual position, we do not find any reason to set aside the eviction order.
16. The jurisdiction under Article 226 of the Constitution of India is not in the nature of an appellate jurisdiction. The Court is concerned only with the decision making process. In a matter of this nature, it is not open to the Court to consider the materials once again and take a different view. It is within the province of the authorities to decide as to whether the subject land is required for a public purpose. The Highways Department has already surveyed the encroached portion and construction is also stated to be in full swing. We, therefore, do not propose to interfere in the matter.
17. We are informed that some of the encroachers have given representation for alternative allotment and the same is evident from the counter affidavit filed by the Highways Department. The petitioners are also given liberty to submit a comprehensive representation to the District Collector, Salem, to provide them alternative accommodation for their residence. In case any such representation is given, the same shall be considered and disposed of by the second respondent taking into account the continuous occupation of the land by the petitioner. In short, every effort should be taken by the District Collector, Salem, to dispose of the matter as expeditiously as possible and in any case within a period of two months from the date of receipt of representation.
18. The petitioners are given eight weeks time to remove the encroachment and handover vacant possession of the property to the first respondent.
19 The Writ Petition is disposed of with the above direction. No costs. Consequently, M.P.No.1/2014 is closed. Sd/- Assistant Registrar True Copy Sub Assistant Registrar tar To 1 The Assistant Engineer Construction and Section High Ways Department Gandhi Nagar Hastampatti Salem 2 The District Collector, Salem District. 3 The Tahsildhar Taluk Office Salem 4 Executive Engineer Tamilnadu Electricity Board Subramania Nagar Sooramangalam Salem-5.
2 cc to Mr.P.Tamilvel , Advocate Sr.No.44544 & 45710 1 cc to Government Pleader.Sr.No.46279 W.P. No.25213 of 2014 lrs(co) pmk.9.9.2015