M.Vijayakumar, v. The Government Of Tamilnadu,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 10..07..2015

CORAM

THE HON'BLE Mr.SANJAY KISHAN KAUL, CHIEF JUSTICE and THE HON'BLE Mr.JUSTICE T.S.SIVAGNANAM W.P. Nos.5439, 5208, 5635 12850 to 12859 of 2015 W.P.No.5439 of 2015 1 M.Vijayakumar 2 Kamalakanni W/o. Ramalingam 3 Krishnaveni 4 Venkatesan 5 Kamalakanni S/o. Perumal 6 Kuppammal 7 Govindaraj 8 Dhasaradhan 9 Subramani 10 Manikandan 11 Dhanalakshmi 12 Karthik 13 Mallika 14 Durai 15 Kumar 16 Velusamy 17 Ganesan 18 Rajendran 19 Kumar 20 Nallammal 21 Elumalai Gounder 22 Palani 23 Unnamalai Ammal 24 Govindammal 25 Rajaram 26 Pasumalai 27 Venkatesan 28 Munusamy 29 Rajeswari 30 Kasiammal 31 Sagadevan 32 Palani 33 Kamalakannan 34 Rajendran S/o.Gopal

35 Rangasamy 36 Venkatesan 37 Rajendran S/o.Chinnathambi 38 Ramanathan 39 Gopinathan 40 Mallika 41 Chandra 42 Raman 43 Subashini 44 Ramamoorthy 45 Veerappan 46 Rajaram 47 Mari 48 Kathavarayan 49 Kuppusamy 50 Ammu 51 Valliammal 52 Kuppan 53 Arumugam 54 Subramani 55 Murugan 56 Rani 57 Ganesan 58 Sudha 59 Rathinammal 60 Ammu 61 Amsavalli 62 Manonmani 63 Govindan 64 Thayammal 65 Ranganathan 66 Elumalai 67 Ramesh 68 Manibalan 69 Poongavanam 70 Govindammal 71 Ameer Batcha 72 Sainsha 73 Kanniappan 74 Dhowlathbe 75 Mariammal 76 Poongavanam 77 Selvaraj 78 Antonysamy 79 Lourdusamy 80 Amudha 81 Mayakannan 82 Rathinammal 83 Saritha 84 Amdulbe 85 Chinnasamy

86 Murugan 87 Saroja 88 Sujatha 89 Varadharajan 90 Manoharan 91 Pushparaj 92 Thirupathi 93 Sudha 94 Sundari 95 Renugammal 96 Ranganathan 97 Shanthi 98 Ramachandran 99 Selvarani 100 Asayn 101 Sarmila 102 Lillamary 103 Purvin 104 Padmavathi 105 Sakthivel 106 Patchiammal 107 Shiekbabu 108 Abdullah 109 Gopal 110 Sankar 111 Babu 112 Bhavani 113 Nanthabai 114 Perumal 115 Chitra 116 Devagi 117 Sivagamai 118 Valarmathi 119 Renuga 120 Sheik Kader Batcha 121 Abdul Sarthar 122 Malar ... Petitioners in WP.5439 of 2015

1. P. Ellammal

2. M. Subramani ..Petitioners in WP.No.5208 of 2015 W.P.No.5635 of 2015:

1 Muniyan 2 Palanivel 3 Lakshmi 4 Saradha 5 Chinnakuzhandai 6 Mani 7 Pachaiyappan

8 Ellammal 9 Venugopal 10 Vadamalai 11 Rajalakshmi 12 Munusamy 13 Ramu 14 Sharmila 15 Arangesan 16 Devanathan 17 Thaayaar 18 Veerannan 19 Kumudhavalli 20 Valliammal 21 Santhanammal 22 Kuppusamy 23 Selvi 24 Saroja 25 Christy 26 Suvithamalar 27 Dhanam 28 Dhamodharan 29 Amudha 30 Ranganayaki 31 Manoharan 32 Kanniappan 33 Sampath 34 Alamelu 35 Selvi 36 Lalitha 37 Mala 38 Govindan 39 Presanna 40 Gopi 41 Selvi 42 Kayirunbee 43 Revathi 44 Esthaer 45 Sathiq Basha 46 V.Annapoorani 47 E.Sathish 48 Umapathy 49 Suresh 50 Mari 51 Raja 52 Jayakodi 53 Meera 54 Gopalakrishnan 55 Kaliamurthy 56 Anusuya 57 Valli 58 Valarmathi 59 Murugan

60 Uma 61 Santha 62 Jothi ..Petitioners in WP.5635/15

1. Rani

2. Saroja

3. Krishnan

4. Murugan

5. Ramesh

6. Thrishath

7. Karthikeyan

8. Rajamani

9. Krishnamoorthy 10.Kanthan ..Petitioner in WP.12850/15 Ramesh ..Petitioner in WP.12851/15 Krishnan ..Petitioner in WP.12852/15 Saroja ..Petitioner in WP.12953/15 Rajamani ..Petitioner in WP.12854/15 Krishnamoorthy ..Petitioner in WP.12855/15 Thrishath ..Petitioner in WP.12856/15 Karthikeyan ..Petitioner in WP.12857/15 Kanthan ..Petitioner in WP.12858/15 Murugan ..Petitioner in WP.12859/15 Vs The Government of Tamil Nadu, Rep. by its Principal Secretary, Revenue Department, Fort St. George, Chennai-9.

..1st Respondent in WP.No.5439 of 2015, 5635, 12850 to 12859/15 The Commissioner for Land Administration, Government of Tamil Nadu, Chepauk, Chennai-5 ..2nd Respondent in WP.No.5439 of 2015, 5635/15, 12850 to 12859 The District Collector, Villupuram District, Villupuram.

..3rd Respondent in WP.No.5439 of 2015, 5635/15, 12850 to 12859/15 1st Respondent in WP.No.5208/15 The Revenue Divisional Officer/ Sub Collector, Gingee Revenue Division Gingee, Villupuram District ..4th Respondent in W.P.No.5439 of 2015, 5635, 12850 to 12859/15

The Tahsildar Gingee Taluk, Gingee, Villupuram District ..5th respondent in WP.No.5439 of 2015, 5635, 12850 to 12859/15 ..4th respondent in WP.No.5208/15 The Executive Officer, Gingee Town Panchayat, Gingee Villupuram District ..6th Respondent in WP.No.5439 of 2015, 5635, 12850 to 12859/15 ..5th respondent in WP.No.5208/15 The Block Development Officer/ Commissioner Gingee Pachayat Union, Gingee, Villupuram District ..7th respondent in WP.No.5439/15, 12850 to 12859/15 Tamil Nadu Electricity Generation and Distribution Corporation, Rep. by its Assistant Engineer (O&M), Gingee Town, Villupuram District.

..8th Respondent in W.P.No.5439/15 ..7th Respondent in W.P.5635/15 The District Revenue Officer, Villupuram District ..2nd Respondent in W.P.5208 of 2015 The Revenue Divisional Officer, Tindivanam, Villupuram District ..3rd Respondent in WP.No.5208 of 2015 The Assistant Engineer, Tamil Nadu Electricity, Board, Gingee, Villupuram District ..6th Respondent in WP.No.5208/15 Prayer : Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of a writ of (1)Certiorarified Mandamus, to call for the records relating to the orders made in order impunged stereo type the order made in Na.Ka.No.A2/18/2014, dated 05.02.2015 passed by the sixth respondent respectively and quash the same and consequently direct the fifth respondent to issue Patta to the petitioners or any alternative land in terms of various Government orders passed by the Government of Tamil Nadu.

(2) Certiorarified Mandamus Calling for the records pertaining to the Impugned Order in Na.Ka. No.A2/18/2014 dated 5.2.2015 on the file of the 5th respondent and quash the same and consequently direct the 4th respondent to issuance of house sita patta under the Special Scheme of the respondent for the said houses of the petitioner herein within a stipulated time based on the petitioner representation dated 10.2.2015(in WP.No.5208 of 2015)

(3) Certiorarified Mandamus calling for the records relating to the impugned stereo type orders dated 02.02.2015 made in K.No. AE- (O&M) Town/Gingee/D Encroachment A.No.261/2015 passed by the 7th respondent and made in Na.Ka.No. A2/18/2014 dated 05.02.2015 passed by the 6th respondent respectively and quash the same consequently direct the 5th respondent to issue Patta to the petitioners or any alternative land in terms of various Government orders passed by the Government of Tamil Nadu (in WP.5635 of 2015)

(4) Writ of certiorarified Mandamus calling for the records relating to the orders made in Na.Ka.No. A2/18/2014 dated 05.02.2015 passed by the 6th respondent and quash the same and consequently direct the 5th respondent to issue Patta to the petitioner or any other alternative Government Poramboke land available in Gingee in terms of various Government orders passed by the State of Tamil Nadu (in WP.Nos.12850 to 12859 of 2015 respectively. For Petitioners :: Mr.G.Eithirajulu in all W.Ps. Mr.M.R.Jothimanian in W.P.No.5635/2015 Mr.K.Murugesan in W.P.No.5208/2015 For Respondents :: Mr.S.T.S.Moorthy GP for RR1 to R5 Assisted by Mr.V.Shanmugasundaram G.A., Mr.Era.Premnath G.A., for RR6 & 7 Mr.M.Varankumar for R8 C O M M O N O R D E R (Order of the Court was made by T.S.SIVAGNANAM,J.) In all these Writ Petitions, the petitioners challenge notices issued by the sixth respondent, the Executive Officer, Gingee Town Panchayat, dated 05.02.2015.

By the impugned notices, the petitioners were called upon to vacate and clear the encroachment, which has been made in a water body classified as "Erikarai".

2. The petitioners would state that there was a water body was in existence in the said place where they reside and by efflux of time, it lost its character and several persons including the petitioners

have put up their residential huts, madras terrace building, tiled house etc in meagre extent of lands measuring about 2 to 3 cents and are residing their for several years. It is submitted that all the petitioners have been provided all the basic amenities such as electricity, water connections, road facilities etc. The children of the petitioners are said to be studying in the nearby schools and most of the petitioners are coolies and daily wage earners struggling to eke their livelihood.

The petitioners would state that the exact portion of the Eri has not been surveyed for several decades and all of them were living peacefully in their houses and the area, where they are residing, is not a water catchment area as defined under the provision of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007 (Act), but it is only a bund of the lake with height of a bund 15 to 17 feet and abutting the outer bund. It is further submitted that none of the petitioners are living inside the lake or in the water body and therefore, they approached the Revenue Divisional Officer, Gingee, for recognising their possession and enjoyment and grant of patta. However, the said authority declined their request. The petitioners would further state that by virtue of the various Government Orders issued from time to time in G.O.

Ms.No.854, dated 30.12.2006, G.O.Ms.No.142, dated 23.05.2013 and G.O.Ms.No.372, dated 26.08.2014, taking a policy decision to grant free house site patta and the said benefit was extended periodically and lastly extended upto 31.03.2015. The petitioners are stated to have submitted representations to the respondents to consider their claim in the light of the Government Orders, but the same were not considered and they reliably understand that for few people, the District Level Committee has made recommendations for grant of free house site patta and the petitioners have been singled out without any valid reason.

3. It is further submitted that the Executive Officer of the Gingee Town Panchayat issued a notice dated 28.10.2014, alleging that the petitioners are residing in survey Nos.16 and 18, which forms part of the "B-Eri" and this notice was stated to be issued pursuant to direction issued in a Writ Petition in W.P.No.18056 of 2014, wherein prayer was made for removal of encroachment in the "Eri". The petitioners being aggrieved by such notices, filed Writ Petitions which were disposed of by order dated 22.01.2015, recording the submission made by the learned Government Pleader stating that the impugned notices shall be withdrawn and fresh action will be taken as per the statutory provision. After the order dated 22.01.2015 in the batch of cases, the petitioners are stated to have submitted individual representation on 01.02.

2015 for grant of patta. While so, the impugned notices have been issued by the Executive Officer, Gingee Town Panchayat, which are said to be without jurisdiction. Further, the notices do not refer to any provision of law under which they have been issued. The learned counsel appearing for the petitioners submitted that the impugned notices are clearly in violation of the earlier orders passed by this Court and the notices are wholly without jurisdiction.

4. At the time, when these Writ Petitions were entertained an order of status quo was granted, which was extended from time to time and subsequently ordered to be tagged along with W.P.No.18056 of 2014, which was filed as a Public Interest Litigation, to remove the encroachments in the said water body.

5. The learned Government Pleader appearing for the respondents submitted that all the petitioners are encroachers in the "B-Eri" and have obtained electricity service connection and provided with basic amenities and the Government has been assigning Government Poromboke lands to such of those encroachers who are occupying the lands for several decades subject to the condition that the poromboke land should be an unobjectionable site. It is submitted that in the instant case, the petitioners have encroached the "B-Eri" (lake) which is a water course poromboke and the same cannot be assigned in favour of the encroachers and they have no right to claim patta in respect of the land, which they have encroached upon. It is stated that the "B-Eri" (lake) has been classified as a minor lake and lies in a survey Nos.

16/1 and 18/1 and as per the land records, the land comprised in Survey Nos.16 and 18 have been sub-divided as Survey Nos.16/1, 16/2, 18/1 & 18/2 respectively and the lands comprised in survey No.16/1, measuring an extent of 8.51.0 hectares is classified as "Eri Poromboke" and an extent of 0.02.5 hectares in survey No.16/2 is a patta land. The lands in survey No.18/1, measuring an extent of 5.42.0 hectares has been classified as "Eri Poromboke" and the land in survey No.18/2, measuring an extent of 0.39.0 hectares has been classified as "Gramanatham". The petitioners are stated to have encroached the water course Poromboke and therefore liable to be evicted. It is further submitted that the encroachment is on the bund of the lake and unless the bunds are protected the catchment area of the lake cannot be preserved.

It is further submitted that due to the encroachment in the "B-Eri (lake)", the lake bunds are in poor shape resulting in the water body, loosing water holding capacity and would become dry very soon. Hence, the bunds of the lake, are to be protected to prevent the loss of water holding capacity.

6. It is further submitted that after issuance of the direction in a Public Interest Litigation in W.P.No.18056 of 2014, a survey was conducted and it was found that there are 337 encroachers and when action was being taken, 254 encroachers have approached this Court and filed Writ Petitions and orders of Interim injunction were granted and the remaining 84 encroachers were duly cleared. In respect of 30 encroachers, who had put up huts, were provided with alternate accommodation and the Government does not propose to leave any persons in lurch and they have taken steps to provide alternative lands to the encroachers for their livelihood. It is further submitted that the District Collector directed the Sub-Collector, Tindivanam to identify alternate lands for being allotted to the

encroachers and a team was constituted headed by the Sub-Collector and alternative lands were identified in seven villages namely, Pappanthangal, Edamalai, Veeranamoor, Pulivanthi, Sorathur, Keezhvailamoor and Uranithangal. It is further submitted that after collection of details and based on socio economic condition, a list of 307 encroachers has been prepared for allotment of alternative site. Further, it is submitted that the District Administration has extended the benefit of the Indira Avas Yojana scheme to the encroachers including the petitioners by extending financial assistance of Rs.1,20,000/-, each, for construction of the house in the land allotted to them for which free house site patta would be issued. That apart a sum of Rs.12,000/- will be given to the encroachers for construction of toilets.

In all each encroacher/beneficiary will be given Rs.1,47,030/- by the District Administration, so that they will be able to build their houses on the land allotted to them by issuing free house site patta and reside peacefully. It is further submitted that the Executive Officer of the Town Panchayat is the competent authority to initiate action in terms of the Government Order in G.O.Ms.No.298, dated 20.11.1996, as the "B-Eri" (lake) falls within his jurisdiction and therefore, the Executive Officer of the Town Panchayat issued the impugned notices. The Electricity Board has also issued notices for disconnection of the electricity supply. Therefore, the respondent would state that they have followed the provisions of the Act, while resorting to eviction.

Further, it is submitted that no patta can be granted in a water course Poromboke and the claim for patta made by the petitioner in respect of the land on which they have encroached is not maintainable.

7. We have heard the learned counsels appearing for the parties and perused the materials placed on record.

8. It is not in dispute that all the petitioners are encroachers. The encroachment made is on a water course poromboke, therefore the question of granting patta in respect of the property in which the petitioners are in occupation does not arise. Therefore, the claim made by the petitioners for issuance of patta in respect of the land, which they have encroached upon, has to be necessarily rejected.

9. The next contention raised is by stating that the Executive Officer of the Town Panchayat has no jurisdiction to issue the impugned notices. The Government by virtue of G.O.Ms.No.298, dated 20.11.1996, has directed that the water bodies falling within the limits of a Town Panchayat to be under the control of the Town Panchayat. Therefore, the Executive Officer of the Town Panchayat is in control of the subject water body and consequently, he is vested with jurisdiction to initiate proceedings for eviction under the provisions of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007. Hence, the contention raised by the

petitioners that the Executive Officer of the Town Panchayat lacks jurisdiction to issue the impugned notices, stands rejected, more so when there is no challenge to G.O.Ms.No.298, dated 20.11.1996.

10. The petitioners would state that they have not constructed their houses/huts inside the lake and they are only residing in the bund area and there is no disturbance to the water catchment area and hence, they should be permitted to continue to occupy the lands and their possession to be regularised. This submission is liable to be outrightly rejected for the simple reason that the land comprised in Survey No.16/1, measuring an extent of 8.51.0 hectares is classified as "Eri Poromboke" and the lands in Survey No.18/1, measuring an extent of 5.42.0 hectares has also been classified as an "Eri Poromboke". As per the counter affidavit of the District Collector, Vilupuram, all the 337 encroachers are in Survey Nos.16/1 and 18/1. Therefore, the encroachments have to be necessarily removed.

11. A contention was raised by the petitioners stating that they have not encroached into the lake area/catchment area and therefore, their encroachment should be regularised. This contention also deserves to be rejected, since the bund area of a lake or a water body is vital to preserve a water body, unless and until the bund is strengthened and maintained properly, the water catchment area cannot be maintained. Therefore, it is essential to maintain the bund and keep the same free from encroachment.

12. Having held so, we should examine the conduct of the petitioners. The respondents have taken a fair stand stating that they do not propose to leave the petitioners/encroachers in the lurch, but have decided to provide alternative lands for which the lands have been identified in seven villages. The list of encroachers has been enumerated and classified based on their socio economic background and 307 persons have been identified to be treated as beneficiaries for issuance of free house site patta. That apart a sum of Rs.1,20,000/- will be paid to each of the beneficiaries for construction of house, apart from Rs.12,000/- to be paid for construction of toilets. It is stated in the counter affidavit that the total amount payable to each beneficiary is Rs.1,47,030/-.

Therefore, the encroachers have received a fair treatment at the hands of the respondents and the respondents have taken care to ensure that they are rehabilitated, given free house site patta and also funds for construction of houses and toilets. Therefore, we find that the petitioners/encroachers have been given a fair deal.

13. The learned counsel appearing for the petitioners submitted that the lands have never been surveyed and all the encroachers are poor daily wage earners and they are sought to be re-located in

places which are more than 35 kms away from the present place and the children would be unable to attend school as they would be compelled to travel long distances. Further, there is a grievance that the lands identified are not habitable. The learned counsel appearing for the petitioners produced photographs of the existing construction in the encroached land and from the photographs, we find the houses put up are terraced and some of the houses have more than one floor and it is hard to believe that all the encroachers are daily wage earners.

14. The learned counsel appearing for the Public Interest Litigant submitted that most of the persons residing in the area, are tenants in the houses constructed by the real encroachers and there is absolutely no bonafide in the plea raised by the petitioners. In the Public Interest Writ Petition in W.P.No.18056 of 2014, a compliance report has been filed by the District Collector and the Sub-Collector is also present in Court today, he has categorically affirmed that survey was conducted of the entire area before action was initiated for eviction and only after the survey, the number of encroachers were identified as 337 to whom eviction notices have been issued.

In the counter affidavit it has been stated that the team of officers headed by Sub-Collector, Tindivanam, has identified alternate sites in seven villages to accommodate 307 encroachers based on their socio economic status they being Pappanthangai, Edamalai, Veeranamoor, Pulivanthi, Sorathur, Keezhvailamoor & Uranithangal villages, and total number of beneficiaries are 43, 20, 18, 119, 27, 60 & 20 respectively. From the counter affidavit filed by the District Collector and the compliance report filed on 09.07.2015, it is clear that the lands have been identified in seven villages. However, the petitioners now seek to contend that they would shift to the lands so identified only if they are satisfied and it is convenience.

We do not appreciate the stand taken by the petitioners, who are encroachers of Government land, which is classified as a water body. Though a submission was made that the alternate lands chosen are at a distance of about 35kms, the said contention appears to be incorrect going by the rejoinder affidavit filed by the petitioners, dated 07.04.2015, wherein in paragraph 4, the petitioners themselves have admitted that some of the sites identified are for a distance of about 4, 10, 12, 14, 15 & 26kms. Therefore, the contention that the lands chosen are at a distance of about 35kms appears to be an incorrect statement going by the admission of the petitioners themselves.

The petitioners being encroachers of Government land cannot dictate terms to the State that they will not clear the encroachment, until they are allotted a land very near to the encroached site and the allotted site is to their satisfaction. The respondents taking note of the plight of the encroachers and considering their socio economic background, have identified 307 persons, who are to be given free house site patta, apart from a sum of Rs.1,47,030/-, for construction of house, toilets etc. Therefore, the action of the respondents satisfies the test of fairness.

terms and it is for them to accept alternative the sites offered by the respondents with a view to rehabilitate to them, or not to accept those site, but the same cannot be a reason to resist eviction from a water body.

15. For all the above reasons, we hold that the petitioners have failed to make out any case for interference and the Writ Petitions fail and they are dismissed. It is well open to the petitioners to avail the offer given by the respondents by way of alternate accommodation, if they so desire. No costs. Consequently connected miscellaneous petitions are closed.

Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar pbn To 1 The Principal Secretary Revenue Government of Tamilnadu Department Fort St. George Chennai-9.

2 The Commissioner for Land Administration Government ofTamil Nadu Chepuak Chennai-5.

3 The District Collector Villupuram District Villupuram 4 The Revenue Divisional Officer/ Sub Collector Gingee Revenue Division Gingee Villupuram District 5 The Tahsildar Gingee Taluk Gingee Villupuram District 6 The Executive Officer Gingee Town Panchayat Gingee Villupuram District 7 The Block Development Officer/ Commissioner Gingee Panchayat Union Gingee Villupuram District 8 The Assistant Engineer (O&M) Tamil Nadu Electricity Generation and Distribution Corporation Gingee Town Villupuram District.

9 The District Revenue Officer, Villupuram District

10. The Revenue Divisional Officer, Tindivanam, Villupuram District.

11. The Assistant Engineer, Tamil Nadu Electricity, Board, Gingee, Villupuram District.

+ 3 ccs to Mr.M. Varunkumar, Advocate SR.34901 to 34903 + 2 ccs to Mr.V.R. Appaswamee, Advocate Sr.35268 + 1 cc to Mr.G. Ethirajulu, Advocate Sr.35071 + 1 cc to Mr.M.R. Jothimanian, Advocate Sr.35620 W.P. Nos.5439, 5208, 12850 to 12859 of 2015 NM(CO) Eu 27.07.15