M/S Provident Housing Limited v. The District Collector

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 19.02.2024 PRONOUNCED ON : 14.06.2024

CORAM:

THE HONOURABLE MR. JUSTICE P.VELMURUGAN W.P.Nos.36373 and 36376 of 2023 and W.M.P.Nos.36369, 36370, 36372, 36373 and 36374 of 2023 M/s. Provident Housing Limited No.130/1, Ulsoor Road, Bangalore - 560 042 and Branch Office at No.33, 2nd Street (Ground Floor) South Beach Avenue MRC Nagar, Raja Annamlaai Puram, Chennai - 600 028.

...Petitioner in W.P.36373/23

represented by its authorised signatory M.D.Sudhakar M/s.Sujatha Cine Arts A partnership firm Registered under Indian Partnership Act, 1932 having registered office at No.508 and 509, Carlton Towers, 1 Old Airport Road, Bengaluru - 560 008.

...Petitioner in W.P.36376/23

Represented by its Power of Attorney M/s. Provident Housing Limited represented by its Authorised Signatory vs.

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1. The District Collector, District Collector's Office, GST Road, Chengalpet - 603 001.

2. The Revenue Divisional Officer, Chengalpattu Division, VOC Nagar, Chengalpattu - 603 001.

3. The Tahsildar, Chengalpet Taluk Office, Chengalpet District - 603 001.

4. The Director, Directorate of Town and Country Planning 2nd, 3rd and 4th Floor, CMBA Complex, E and C Market Road, Koyambed, Chennai - 600 107.

5. The President, Kayarambedu Panchayat, Chengalpattu Taluk, Chengalpattu District - 603 202.

6. The Public Works Department, Kamarajar Pormenade, PWD Estate, Chepauk, Triplicane, Chennai - 600 005.

7. Water Resources Department, 1st Floor, North Wing, PWD Office Compound, Chepauk, Triplicane, Chennai - 600 005.

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8. Radhakrishnan

9. Palanivel 10.Devendhiran 11.Narayanasamy

12. P.Jayagandhi Pushparaj 13.Devaki Shanmugam 14.Nadhiya Mughandan 15.Arul Raj 16.Vanila Boopalan 17.Nadhiya Parthiban 18.Chockalingam 19.Dhivya 20.Rukmani

...Respondents in both WPs

21.Sujatha Cine Arts No.508 and 509, Carlton Towers, 1 Old Airport Road, Bengaluru - 560 008 Represented by its Power of Attorney M/s.Provident Housing Limited ...Respondent in W.P.No.36373/23 Prayer in both the WPs: Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Certiorarified Mandamus to call for the records of the second respondent in the order dated 08.11.2023 in proceedings No.Na.Ka.No.1902/2023/B1 and quash the same as illegal, arbitrary and contrary to the provisions of law and direct the respondents from in any manner interfering with the petitioner's right and interest in the petitioner's land comprised in S.No.430/1A1A, 430/1B and 430/1C, measuring an extent of 70.29 acres or thereabouts, situate at Kayarambedu Village, Chengalpet District, Chengalpet within the registration district of Chengalpattu and Sub Registration district of Joint-II Chengalpattu including its approvals assigned ROC No.P9NTEPYP/ 3/56

2023/TCP dated 12.07.2023 and Na.Ka.No.10(5)/2020/Ka dated 18.08.2023 issued by the fourth and fifth respondents respectively. For Petitioners : Mr.AR.L.Sundaresan, Senior Advocate, for Mr.G.Vivekandand in W.P.36373/2023 Mr.Parthasarathy, Senior Advocate, for Mr.Subhag Nair - in W.P.36376/2023 For Respondents : Mr.J.Ravindran, AAG, Assisted by Mr.Azizulla Khan, Government Advocate, for RR1 to R4 Mr.D.Nagasaila for R8 to R11 and R17 R5, R6, R7, R12 to R16 and R18 to R21 - No Appearance - in both the WPs ****** COMMON ORDER These writ petitions have been filed to quash the order of the second respondent dated 08.11.2023 in proceedings No.Na.Ka.No.1902/2023/B1 as illegal, arbitrary and contrary to the provisions of law and direct the respondents not to interfere with the petitioner's right and interest in the petitioner's land comprised in S.No.430/1A1A, 430/1B and 430/1C, measuring an extent of 70.29 acres or thereabouts, situated at Kayarambedu 4/56

Village, Chengalpet District.

The case of the writ petitioners in both the writ petitions is that the petitioners are joint owners of the entire subject property. An extent of 70.29 Acres bearing Survey Nos.430/1A1A, 430/1B & 430/1C (Old Survey Nos.370/2A, 370/2C, 370/2F, 370/2G, 370/3C7) situated at No.50 (Old No.56) Kayarambedu Village, Chengalpattu Taluk & District (Subject Property) was originally purchased by Sujatha Cine Arts through registered Sale Deeds dated 29.12.1973 registered as Document No.449 of 1974, Book-I, Volume 2390, Pages 345 to 352 on the file of the Registrar of Madras and (ii) 30.06.1977 registered as Document No.1821 of 1977, BookI, Volume 2701 Pages 141 to 145 on the file of the Registrar of Madras North and from the date of purchase, Sujatha Cine Arts has had exclusive possession and enjoyment of the subject property with the same being used as a shooting site for movies.

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2.1 The vendor of the Sujatha Cine Arts purchased the subject property and other properties in the year 1967 vide Sale Deeds dated 19.09.1967 registered as Doc.No.4176 of 1967, Volume 1753, Pages 21 to 34 on the file of the Registrar of Madras, Chengalpatty District (ii) 25.01.1968 registered as Doc.No.1770 of 1968, Book-I, Volume 1819, Pages 261-166, on the file of the Registrar of Madras and (iii) another document dated 25.04.1968 registered as Document No.1771 of 1968, Book, Volume 1820, Pages 269 to 275, on the file of the Registrar of Madras. The said vendor Sujatha Cine Arts conveyed portion of the subject property to Sujatha Cine Arts vide Sale Deed dated 29.12.1973. Further Sujatha Cine Arts was provided permission under Section 37(A) of Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961 (Ceiling Act) to acquire 21.

30 Acres vide G.O.No.3908, Revenue Department dated 23.11.1974. 2.

water for other cattle. Thereafter due to insufficient income from the lands, Sujatha Cine Arts sought to sell the subject property along with other lands and during this period the subject property was not let out for cinema shooting and the horses were also sold over a period of time and thus the entire subject property remained barren and the trench, which was created artificially for storing waster fell into disuse and became redundant. The trench was thus not maintained by Sujatha Cine Arts for more than three decades.

2.3 Sujatha Cine Arts sold an extent of 49.40 Acres out of the subject property vide sale deed dated 17.12.2022 registered as Doc.No.18562 of 2022, Book-I, in the office of the Sub Registrar, Chengalpet Joint II to the petitioner in W.P.No.36373 of 2023 Viz. M/s. Provident Housing Limited (in short 'PHL'). Both the petitioners began the process of obtaining layout approval and as per the direction of 4th respondent, gifted an extent of 1,06,319.273 square meters (i.e. 27.27 Acres) out of the subject property being aggregate of (i) 83920 square meters for formation of roads, (ii) 20,247.353 square meters towards formation of 7/56

Parks, (iii) 1045.48 square meters to local body, (iv) 1050.84 square meters for electricity service towards TANGEDCO, and (v) 55.60 square meters for greenery development, vide Gift Deed dated 20.06.2023 registered as Document No.9536 of 2023 in the office of Sub Registrar, Chengalpet JointII in favour of Kayarambedu Panchayat out of the total extent of 70.32 Acres in Survey Numbers 430/1A1A, 430/1B and 430/1C. PHL made huge investments and expended considerable resources to level and improve the land and has sought approval from 4th respondent for development of the subject property into housing sites, who also granted planning permission vide proceedings dated P9NTEPYP/2023/TCP dated 12.07.2023 and 5th respondent vide sanction No.Na.Ka.No.10(5)/2020/Ka dated 18.18.2023 and PHL also paid Rs.

1,40,07,361/-towards charges for approval and Rs.2,01,45,000/- towards change of land use from agricultural to nonagricultural use in non planning areas in terms of the Tamil Nadu Town and Country Planning Act, 1971, and other applicable laws and rules. 2.

Survey and Boundaries Act, 1923 (in short "the Act"), showed trench (Thangal) in a portion of subject property. During the due diligence of the title conducted by the PHL through its counsel, it was found on enquiry that the said Thangal was man made, which was utilised only for purpose of the private irrigation initially and thereafter for cinema shooting and other incidental purposes by the predecessor in title alone and the Thangal was not used for any public purpose. In such circumstances, considering the facts that the said Thangal was not reflected in the Field Measurement Book (FMB) but reflected only in the Village Map prepared during the presettlement era, the petitioner was advised to obtain necessary permission from the competent authorities to confirm that the said Thangal is not a water body.

Accordingly the petitioners have obtained necessary permission and consent from 6th and 7th respondents, who after verification of the relevant records and physical inspection of the subject property, confirmed that there are no poramboke lands, water body or any other government lands within the subject property.

2.5 The entire extent of land was levelled by PHL and no 9/56

agricultural activities were carried out in the nearby vicinity of the subject property owned by the petitioners. The satellite picture maintained by the Water Resources Department and Public Works Department, Chengalpattu does not show the existence of any water body in the subject property. The petitioners after due verification only purchased the subject property. 2.6 The 8th to 20th respondents appear to have preferred a complaint before 2nd respondent with an ulterior motive, alleging that there is a Thangal in the subject property as shown in the village map, which is within the subject property and they have objected for the development.

The said Thangal is only man made, which was neither created for public purpose nor created for use by third parties, which was also confirmed by 6th and 7th respondents after due verification of the records and physical inspection of the subject property, whereby they have declared that the subject property is neither a water body nor affecting the rights of the public or environment. 2.

petitioner not to put up any construction in the subject land. A group of local politicians sought to abuse the legal process by making attempts to extract huge sums of money from PHL and the PHL did not encourage and refused payment of any ransom as claimed by the group. The respondents 8 to 20 have now joined hands with the said group. The said group preferred a complaint before the fifth respondent. The fifth respondent after convening the panchayat board meeting and on verification of records found that there was no encroachment of government or local bodies' land. Thereafter respondents 8 to 20 preferred a complaint before th second respondent alleging that PHL is attempting to put up construction in water catchment area, for which second respondent conducted enquiry and collected all the documents from PHL. Third respondent after inspecting the property along with the Revenue Inspector and Village Administrative Officer submitted a detailed report and oral statements were given by the objectors along with a Village Map.

2.8 The second respondent after examining the revenue records, settlement records, survey records and the details regarding the water body 11/56

maintained by Public Works Department passed the impugned, in which, even though it is stated that the subject land is a private land, however directed PHL to maintain 19 Acres of land to be kept as it is and further directed not to carry on any construction activities in that portion of land. Thereby the second respondent erred in failing to recognize that the respondents 8 to 20 have kept quiet for nearly a century and out of nowhere have made a claim that there is water body in the subject property. Now they are making allegations only in order to extract money and to defeat the rights of the petitioners, which should not be allowed. Hence the present writ petitions.

The second respondent filed counter stating that one Radhakrishnan and nine others preferred complaint alleging that private building promoter is carrying out construction in the land comprised in Survey No.430/1A, 1B, 1C (od Survey No.370) which is a water catchment area in Kayarambedu Village, Chengalpattu Taluk, Chengalpattu District. After conducting due enquiry with the complainants and the private building promoter namely PHL and upon examination of the village records, the 12/56

order has been passed directing the company not to carry out any construction or other work in the land comprised in Survey No.430(part) measuring an extent of 07.57.60 Hectares and to maintain the land "Thangal" as per the village record. According to the Village Map, an extent of 07.57.60 hectares comprised in the land in Survey No.430, has been indicated as Thangal by means, of "DETAIL'. Though the subject land has been classified as patta land, portion of the land comprised in Survey No.430/part has been shown as "Thangal(Tank)" in the village Map. Even though it is man made as contended by the petitioners, whether it is man made or natural, the petitioners itself admitted the existence of trench (Thangal) in the subject land. As regards the existence of encroachments in the plan-marked details, the Government have issued orders in G.

O.Rt.No.57, Revenue and Disaster Management (Land Disposal Wing 6(2) Department dt.23.01.2020 and amendments to the Revenue Standing Order No.26(15), and according to which, the petitioners are to be treated only as encroachers of the aforesaid land and the petitioners have no legal rights to raise construction in the said Thangal.

3.1 Usage of the said Thangal either for public purpose or for use by third parties viz. predecessor-in-title is needs no consideration, since the provision under the Revenue Standing Order No.26(15) do not mandate any such condition for deciding the encroachment in such lands and as such the dictionary meaning of the word "Thangal", is not applicable. Further whether the said Thangal was under the use by the general public or under the exclusive use of the predecessor-in-title is not at all the criteria to decide the issue in favour of the petitioners, when the petitioners itself admitted the existence of Thangal by means of DETAIL even in the 1905 village map and as such, no encroachment can be permitted in the said land, even though it is patta in nature.

3.2 The Agricultural and Farmer Welfare Department and the Kayarambedu Town Panchayat Authorities are not the custodian of the revenue records and since they are not competent to analyze the revenue records to identify the status, nature and usage of the lands, the NOC said to have been issued by them for forming the layouts are not relevant to decide the issue. The detailed enquiry conducted by the second respondent and the 14/56

scrutiny of the Village Map revealed that a portion of land comprised in S.No.430/part measuring an extent of 07.57.60 hectares (Abo;ut 19 acres) has been indicated as Thangal by means of DETAIL and the petitioners also did not deny the same and in the Revenue Standing Order 26(15), it has been enunciated that a plan marked channel or pathway running is a patta land in a Government land and eviction of encroachment in such a land need be invoked in cases where the encroacher has interfered with the plan marked detail so as to close its entrance and exit from his lands. In this case PHL has clearly interfered and defaced with the plan marked detail by raising construction.

Therefore the respondent passed the impugned order to stop the construction activities and to maintain the Thangal as found in the Village Map, since the portion of of land measuring an exten of 07.57.60 hectares (about 19 Acres) has been indicated as Thangal in the Village Map by means of DETAIL and the provisions under the Revenue Standing Order No.26(15) prohibits any development in the said land excepting to maintain it as Thangal.

3.3 The second respondent passed the order only within his 15/56

jurisdiction by following due process of law and the provisions under the Revenue Standing Order No.26(15) are the statutory provisions which prohibit the usage of plan marked detail for other purpose. The title and patta for the subject land has not been questioned and denied by the second respondent, but, since the portion of the land has been indicated as Thangal in the Village Map, it needs to be maintained without any changes as per the provisions under the Revenue Standing Order No.26(15), passed the impugned order. The petitioner, based on the certificate issued by 6th and 7th respondents, cannot alter the status of the land, which was indicated as Thangal in the Village Map, which was prohibited under the provisions of RSO and the developments occurred in the surrounding lands cannot be a reason for changing the usage of the land.

3.4 As per the doctrine of "Caveat Emptor" the onus of checking the status of the land with reference to revenue records lies with the purchaser only and the petitioner ought to have verified the status of the land with due diligence prior to purchase and the respondent cannot be blamed in the matter and the orders were passed with due application of mind after 16/56

considering all the facts and records placed and hence since the petitioner has invested huge amount in the development, it cannot be permitted to alter the usage of the land. Even though the subject property has been classified as patta land, as per the settlement register, survey and settlement register, 'A' Register, etc, the fact is that in the Village Map, a portion of land in Survey No.

430 (part) has been indicated as Thangal by means of DETAIL and the petitioner also did not deny the same and their contention that the Thangal was used only for shooting purpose and not for agricultural purpose is not relevant, since rather than its usage, its maintenance in "as-is-whereis" condition was alone the matter for consideration before this respondent and since the inspection report clearly revealed the fact that its status has been modified by raising construction and there by its maintenance has been totally ignored, in complete contravention of the provisions under the RSO which eventually compelled this respondent to pass the order. 3.5 The order under challenge was passed only after giving due opportunity of hearing to the petitioner on 04.10.

land in their presence and now only they are raising such an objection, which is clearly an afterthought. Further even though appeal provisions have been made in the said order advising the petitioner to prefer an appeal against the order impugned in this writ petition, before the Court of District Revenue Officer, the petitioner did not utilize the opportunity of appeal provided, but, straightaway approached this Court invoking Article 226 of Constitution of India.

Learned counsel for the respondents 8, 9, 10, 11 & 17 filed their counter stating that they are residents of Kayarambedu village for several generations and as such, they are aware of the ground reality in their village with reference to the Thangal which is in dispute in these writ petitions. The above respondents want to safeguard and protect their water rights and water security. The above respondents have not raised these issues with any intention of blackmailing the writ petitioners or to obtain monetary benefits from the same. There is no political nature to their representations. As can be seen, The above respondents are affiliated to different political parties. However, the common goal of all of them is to protect their natural 18/56

resources of the village, which is the Thangal in this instance. 4.1 Till the present petitioners took over the lands in 2023, the above respondents were never denied access to the Thangal and therefore, had no need to submit objections or representations to the authorities regarding the Thangal. When the Petitioners herein actively began to build concrete walls to prevent access to the Thangal, the above respondents were left with no choice but to commence giving representations to the Authorities and seek remedies. Till 2023, the local villagers herein used to catch fish from this Thangal like jilebi, kande, korevai. They catch them during the summer seasons when the water levels reduce and the private respondents stopped only in 2023 when the present petitioners began to prevent access to the Thangal and they broke the bund.

They have since put cement walls and have assigned security guards to prevent the private respondents from accessing the Thangal.

the respondents pray to Amman under the ArasaMaram on the banks of the Thangal, break the coconuts and then walk to the Temple, which has been the unbroken tradition of the village for more than 100 years. 4.2 Further when the lands were owned by CIBA, the above respondents had orally negotiated with CIBA to permit access to the Thangal. The terms of oral negotiation with CIBA were that they would permit the respondents, the local villagers, to access and use the Thangal and in exchange, the private respondents would ensure that the local cows did not interact with the imported cows they were rearing within their lands.

When the lands changed hands to Sujatha Cine Arts, the local villagers continued to uphold these terms even though Sujatha Cine Arts never met the private respondents and when the owners stopped rearing cattle on their lands, the respondents' cattle also regularly grazed next to the Thangal. It is only in the last couple of months since the petitioners constructed a wall that the respondents' cattle have not been able to graze there.

the Registration Department. As per Document No. 2358/1937 dated 16.10.1937, 514.84 acres of land situated at (new) Survey numbers 344, 370/1,2,3 and 4 at Village No. 56, Kayarambedu Village at Chengalpet was sold by a Society named "Madras Pinjrapole" to one TN Ramachandra Naidu S/o T. Narayanaswamy Naidu Balija. At internal page 1 of the said document, the recitals state that this Madras Pinjrapole bought these lands described in the Schedule of the document from the Official Assignee of Madras from the Estate of one D. Sadasiva Rao in 1926. In the description of the lands given in the Schedule of this document, it clearly states that the 514.84 acres includes all the trees, plants, lakes, wells, buildings etc. Therefore, when the lands were purchased in 1926 itself, there existed lakes within the said property. At internal page 3 and 4 of this document, the following are the recitals:

"The vendors do hereby sell, convey, transfer, grant and assign unto the vendee, his heirs, executors, administrators and legal representatives and assignee all that property in Kayarambedu village, more particularly described in the Schedule below free from all encumbrance, absolutely for the use, benefit and enjoyment of the Vendee together with all easements, rights,waters, water courses, drains, channels, ditches, tanks, minerals, lakes, wells, easement of light and air, rights of way and water, trees, plants and all other easements, rights and advantages and appurtenances whatever belonging to or in any wise appertaining to or with the said property 21/56

or any party thereof."

4.3 The above facts clearly establishes that the Thangal existed in 1924 itself and was part of the conveyance made in 1937 and it's existence continues to be referred to in the subsequent transactions as well. CIBA Ltd., purchased the lands from one CK Sunderaj S/o CS Krishnaswamy Naidu and his son Rampriya Das in 1967 vide Document No. 4176/1967 dated 19.09.1967. At internal page 4, bottom two lines continuing onto internal page 5 of the document, lines 1-12 are as follows - "...

This has further been expanded at internal page 17 of the document, internal lines 12 from the bottom of the page, which is extracted as follows - "The Vendors hereby further covenant and undertake that the purchaser shall have an exclusive right to the use of all the water in the lake shown in the Plan hereto annexed and lying within the lands hereby sold and further state that they have no further rights as owner of adjacent lands in respect of any water in the lake." 22/56

4.4 Therefore it is clear that even in 1967, the lake/Thangal was part of the conveyance and it's existence and use was very much recorded and accepted. It is to be noted that the petitioners, for the reasons best known to them have not filed the plan that is stated to be annexed to the conveyance deed which marks the location of this lake. Similarly, in the conveyance of the lands from CIBA to Sujatha Cine Arts vide Document No. 449/1974, the recitals also similarly state that the conveyance of the lands includes the conveyance of the water courses within the properties. Hence, it is clearly established without any doubt that, excluding the village map, the Thangal has existed in written records available before this Court, from at least 1924. Therefore, this was not a recent man made creation of Sujatha Cine Arts for its horses as contended by the petitioners. Even when they used the Thangal for their horses, the respondents were not denied access to the Thangal and continued grazing the cattle there and using the Thangal for fishing and other uses.

4.5 Even when the 514 acres of land was conveyed, those lands did not include the Periya Eri in Survey Number 368. Sitteri Thangal and Sitteri 23/56

Kulam in Survey Number 367. A perusal of all the sale deeds in connection to the lands, including the conveyance of the 514 acres of land clearly demonstrates that Survey Numbers.368 and 367 were never part of the transaction. Therefore, it cannot even be argued that the lake referred to in the earlier conveyance deeds was a reference to Periya Eri or Sitteri Thangal and Kulam. The second contention of the petitioners is that the village map of Kayarambedu reprinted in 1959 after tracing from the lithograph village map of 1906 was never notified under Section 13, TN Survey & Boundaries Act, 1923 and hence cannot be relied upon for invocation of RSO 26(15). Thus, there are two legal grounds made herein - (i) The Map has to be notified under Section 13, TN Survey & Boundaries Act, 1923.

(ii) RSO 26(15) only applies to notified boundaries. 4.6 On a perusal of the scheme of the Act, it is clear that there is no mandate under the Act that all lands within the state are to be surveyed and notified under the Act. The preamble of the statute states that the Act has been legislated to "survey the lands and settlement of boundary disputes". Therefore, the object of this enactment was to empower the Government to settle boundary disputes, especially with regard to claims on government 24/56

land and the structure of the Act also establishes the same. As per Section 5 of the Act, the State Government by notification under Section 6, may order a survey of government land or of any boundary of such land or of the boundary forming the common limit of Government land and land that is not government land. During this survey ordered under Section 5, if the Survey Officer determines that certain boundaries are not disputed, then she may notify the same after notice to the parties. Thus, the genesis of any action under this Act is the exercise of discretion by the Government to initiate action under this Act. It does not automatically apply to the whole state or mandate that all boundaries within the State need to be re-surveyed as per this Act and be notified.

It does not state that any boundaries not notified under this Act cannot be relied upon or anything to that effect. If the Government identifies any dispute as to boundary, the Government will notify the said dispute for determination of boundaries under this Act. The Act does not nullify the existing demarcation of boundaries if there is no dispute with regard to the same.

4.7 In the present case, the boundaries of the patta lands of the petitioners or their predecessors has never been disputed. The boundaries of 25/56

the Thangal have also never been disputed. The Thangal occupies 19 acres of land. The survey numbers of the Thangal were old number 370/1A2 and 370/2F. The new survey number of the Thangal is 430/1C. 4.8 RSO 26(15) states that plan marked channels in patta land is government land. It is the contention of the petitioners that "plan marked" as referred to in RSO 26(15) would have to be read as those notified under the Act. But, such an interpretation is not supported by the Act or the Revenue Standing Orders themselves. The "plan marked" is not a term that has been defined under any Act or in the Revenue Standing Orders and in the absence of a specific definition, the simple English meaning of the term will have to be used, which would be the markings made on any map identifiable as per the legend given in a map.

The Village Map of 1906 is a map drawn by the Revenue Department and re-printed by the Revenue Department. Therefore, the demarcation of boundaries and identification of physical landmarks on the map are valid for all legal purposes since there is no record of this map being disputed to.

"plan marked" as per RSO 26(15), which has been correctly invoked in the impugned order and must be implemented.

4.9 The last contention raised by the petitioners is that the Thangal has not been used for irrigation and hence serves no purpose and therefore, since they owned the Thangal, they can close the same, which cannot be accepted in light of RSO 26(15). Any attempts to close the Thangal and sell the same would amount to an encroachment of the Thangal which is a water body. It is a 19 acre water body where there is water year round if they receive good rains. It is only in the periods of drought that the Thangal has dried up completely. It serves as a source of water for cattle. Most importantly, the Thangal helps to replenish the groundwater table.

Since the water is held in the Thangal for extended periods of time and most times, throughout the year, water slowly percolates below and recharges the ground water and the villagers are reliant upon their wells for drinking water and other activities. The closure of the Thangal will definitely have a detrimental impact on the villagers' lives since there will be less water available for ground water recharge.

ground water table since there will be greater extraction of water with reduced recharge. The Thangal also serves as a catchment area for the Periya Eri. The filling of the Thangal area of 19 acres with mud and eventually with concrete structures will destroy the flow into the Periya Eri and thereby result in the drying up of the Periya Eri itself. Further, in times of excess rains, the Thangal prevents flooding of the surrounding areas including houses and lands. If the Thangal is filled up, it will also result in flooding of lands because there will be no area to hold this water. Hence, the filling up of the Thangal will be detrimental both for the recharge of the ground water table and the Periya Eri which will result in water shortage in that area and it will also lead to flooding in times of rain. Both such situations will be detrimental to villagers' lives.

4.10 The water bodies in Kayarambedu Village are all part of the continuum of network of water bodies in the Adyar sub-basin and the destruction of one water body will consequentially affect the other water bodies and the Adyar river itself and filling up of the Thangal will also pose a risk to all lives in the future once cement structures are built by the 28/56

petitioners. The waters will end up being diverted to the lands and houses since there will now be cement houses obstructing the flow of water and many of the houses are still thatches huts which will not pose a threat to the flow of water. The above contentions have not been addressed by the authorities like DTCP since they were never informed that there existed a Thangal within the lands and that the petitioners intended to fill up the Thangal and sell the same. Therefore the impugned order must be sustained to ensure and protect the water security of villagers and the region. The respondents have no objection to the petitioners selling their patta land, but, however, the filling up and sale of the Thangal is against the law and will have an adverse impact on both the villagers and those persons who buy the plots from the petitioners.

Learned Senior Counsel for the writ petitioner in W.P.No.36376/2023 would submit that the subject property is only a Thangal, which is only reflected in the Village Map of Kayarambedu Village in 1905 re-printed in the year 1956. It is undisputed and admitted that none of the subsequent documents such as revenue or survey records including 29/56

Filed Measurement Book (FMB) reflect Thangal after the ryotwari settlement. As per Section 5 and 13 of the Act, the boundary or common limits between the Government land and the land which is not a Government land shall be notified by the State Government. The demarcation or fixation of the boundary in the Village Map was not published as per Section 5 and 13 of the Act. For the purpose of the comparison, the petitioner has also filed the Village Map of the abutting Village namely Kadambur Village and the same was published in Chengalpattu District Gazette. Therefore the Village Map relied on by the respondent is neither a statutory document nor can be relied post settlement proceedings, in order to bring the present Thangal within the ambit of RSO 26(15).

5.1 The FMB sketch issued under the Act for S.No.362 of Kayarambedu Vilalge sclearly reflects "Thangal", whereas the FMB of the subject property does not reflect Thangal, which clearly shows that there is no existence of water body in the petitioner's property. The second respondent in their counter neither had admitted that the trench situated in the petitioner's property was man-made trench. If the Thangal was deemed 30/56

to be a water body, then the respondents 8 to 20 would have objected for development of the Survey no.362, which admittedly the respondents 8 to 20 have miserably failed to do so which only establishes that Thangal cannot be equated to water body and without prejudice to the above fact, assuming without admitting that Thangal is alleged to be a water body the same would have to reflect in the FMB and the respondents 8 to 20 have made complaints only against the subject property only to make extraneous consideration but not for the reasons mentioned in the counter affidavit of the respondents.

5.2 The learned Senior Counsel would further submit that it is mandatory that the subject matter of dispute should be either channel or pathway which has both entry and exit to apply the said RSO 26(15). Admittedly in this case there is neither entry nor exit even as per the impugned order as well as the Village Map relied upon. The word 'Channel' is not defined in RSO 26 (15). Hence one has to fall back on the definition of 'Field Channel' and 'Supply Channel' in the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007 (in short the 'Tank Act') which pre31/56

supposes entry and exit from the petitioner's land for water course. The second respondent in the impugned order had categorically found that the petitioner after purchase of schedule property in the year 1973 and 1977 have fenced the entire property with barbed wires preventing the public from using the subject property and that the entire area around the petitioner's land has been developed into plots. Only during the rainy seasons, the overflow from the Thangal used to drain, which is also unavailable in the field as on today. Thus, RSO 26 (15) itself inapplicable to the facts of the case. 5.

3 The learned Senior Counsel would further submit that the second respondent based on the documents, field enquiry and statements of various persons of the locality have passed the impugned order with regard to Thangal, which was man-made construction, exclusively used by the land owner, who is predecessor in title and there was no use by any member of the general public. In 1974, after purchase by the petitioner, UDR were updated in the name of the petitioner and used the said Thangal for film shooting. No public is using water from this Thangal for irrigation purposes and the lands around subject property had been developed as housing plots.

After purchase by the petitioner the subject property was fully fenced and no public was allowed inside the subject property. In the Resettlement Register and the Updating Register, the subject property was registered as patta lands in the name of the petitioner and PHL. According to Taluk Deputy Surveyor proceedings dated 30.01.2023, there are no poramboke or encroachments in the subject property. The letter of the Agricultural and Farmers Welfare Department, Chengalpattu, dated 29.10.2022, there is no objection for grant of layout, which was given property. In all the documents such as Resettlement Register and Updating Register, the subject property is shown as patta lands and only in the Village Map the Thangal is reflected. 5.

4 Even though the lands are patta land according to the RSO 26(15), the Thangal needs to be maintained without any development. The said findings operate as an estoppel both against the Government and private respondents to show Thangal is not a public water body.

respondents had not filed any evidence to prove such contentions. The respondents who are supporting the impugned order cannot introduce new case to improve the impugned order. The respondents miserably have failed to produce the complaints made by the respondents 8 to 20, which shows that the plea of the respondents 8 to 20 were not based on the pleas raised before this Court. Therefore the contentions of the respondents cannot be acceptable.

5.5 The learned Senior Counsel would further submit that the term Thangal is neither defined under any Act or rules for time being in force and only the term Tank is defined. The definition of "tank" under the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007 is extracted below:

"tank" means a storage structure build in for harnessing water for use and include supply channel and its cross masonries, tank sluice, surplus weir, surplus course and its cross masonries; field channel and its cross mansories besides the drains and tank poramboke lands which are under the control and management of Public Works Department.

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Therefore the trench at any point of time was neither maintained by the PWD nor by Water Resource Department and the trench was only created by the predecessors for private purpose. The petitioner's vendor had obtained RSR and UDR for the subject property and the second respondent had also admitted that the property was a patta land. The RSO 26(15) also states as follows:

"A plan marked channel or pathway running in a patta land is a Government land. Eviction of encroachments in such land need to be invoked only in cases where the encroacher has interfered with the plan marked detail so as to close its entrance to and exit from his lands. In the case of pathways and cart tracks which have been used by the public till recently, the ryot should not be allowed to shift the course of the details to suit his own convenience. However, such diversions of plan marked channel from its original course, with a view to consolidate his holding or to facilitate irrigation of the portions which would be otherwise severed need not be treated as encroachment." 5.6 In the present case, there exists no ingress or egress in the 35/56

Thangal. To apply the said RSO 26(15), there should be an existence of plan marked channel or pathway and the application of RSO 26(15) to present trench is complete non application of mind by the second respondent. The 2007 Tank Act provides for the definition of "field channel" and supply channel". The field channel is a channel existing or to be constructed to receive and distribute water for irrigation. Similarly, the supply channel receives water from a water source and supply to the lower down tank. Considering the same, the trench is only artificially created by the predecessors for private purpose and there is no plan marked channel or pathway exits in the petitioners' land. Therefore the said RSO 26(15) is not applicable to the present case.

5.7 The learned Senior Counsel further would submit that the conduct of the respondents is replete with malafids and plagued with delay and laches. The private notice was admittedly served on the private respondents, but they did not appear before this Court and only at the time of arguments, they filed a memo with ulterior intention. Even in the counter, the private respondents clearly admitted that they are affiliated to different 36/56

political parties and by using such powers the local politicians abusing the legal process by making attempts to extract money from the petitioner. The private respondents stated that there was an existence of a private agreement with petitioner's predecessor in title viz. CIBA for accessing the Thangal and without prejudice to the petitioner's contention, by making the said averment in the counter the private respondents have admitted that the said Thangal was absolutely owned by CIBA from the year 1967 and except CIBA no other person or authority had any right interest or title to the subject property thereof. Private respondents are claiming right only based on the culture and norms for which the second respondent has no jurisdiction and that was not the case before the second respondent. If at all any such arrangements, the same shall amount to private dispute for which the complaint before the second respondent is not maintainable. In order to enforce the alleged private rights and agreements, the second respondent is not an appropriate authority to decide such disputes.

5.8 The respondents did not file the complaint preferred before the second respondent intentionally to protract the proceedings and suppress the 37/56

material facts. The initial show cause notice dated 03.08.2023 issued by the second respondent is only pertaining to ceiling limits. After such notice, the petitioner had immediately produced the documents sought by the second respondent. Despite the complaints preferred much earlier, the second respondent had not uttered regarding the private complaint. The petitioner also produced the documents as sought for by the second respondent and after perusing the same, the second respondent issued another enquiry notice referring the complaints alleged to have preferred by the private respondents, which clearly shows that the private respondents with a malafide intention and to illegally extract money from the petitioner had filed complaint before the second respondent.

The grounds raised by the private respondents are mere an afterthought after witnessing the proceedings and created new case based on the petitioner's attack of the impugned order. 5.9 In the aforesaid circumstances, the petitioner is entitled to get the relief sought for in the writ petition since the second respondent passed the impugned order without any materials and also non application of mind.

in favour of the petitioner may be given to the proper authority The learned Senior Counsel for the petitioner, in the other writ petition, in addition to the submissions made by the learned Senior Counsel for the petitioner in W.P.No.36376 of 2023, would submit that it is only a private tank and since there is no ingress and egress for the said Tank, which is only created by the predecessor of the petitioner and the same was never used for public purpose and it is only for private purpose. Now all the lands in and around the Tank, were developed as house plots. It is a patta land, which was created by the predecessor of the petitioners for a particular purpose. The second respondent has failed to appreciate the definition of "field channel" and supply channel" as prescribed in the Tank Act. Therefore under these circumstances the predecessor in title of the petitioner created the Thangal privately in the patta land and the same does not reflect in the revenue records. Therefore the impugned orders is liable to be quashed.

The learned Additional Advocate General assisted by the 39/56

learned Government Advocate for the official respondents would submit that the Tank should be maintained as it is and cannot be altered or disturbed. According to Village Map, an extent of 07.57.60 hectares comprised in the land in Survey No.430 has been indicated as Thangal by means of DETAIL, even though the subject land has been classified as patta land, portion of the land has been shows as Thangal in the Village Map. The petitioners did not deny the existence of trench in the subject land and as regards the encroachment, in the plan marked details, the Government has issued orders in G.O.Rt.No.57 Revenue and Disaster Management Land Disposal Wing 6(2) Department dated 23.01.2020, by issuing amendments to the RSO 26(15). As per the said provision, the petitioners are to be treated only as an encroacher of the aforesaid land and they have no legal rights to raise construction.

7.1 As per the provisions of the RSO 26(15), whether the Thangal is man-made or natural and the usage of the said Thangal either for public purpose or for use by third parties is also needs no consideration, since the same do not mandate any such condition for deciding encroachment. The 40/56

title and patta for the subject property has not been questioned and denied by RDO and since the Thangal needs to be maintained without any changes, the RDO, invoking the provisions under the RSO 26(15), has passed the impugned order only within his jurisdiction by following due process of land. On the strength of the certificates issued by 6th and 7th respondents, the petitioners cannot alter the status of the land, which is prohibited by RSO 26(15) and the fact that development occurred in the surrounding lands cannot also be a reason for changing the usage of the land. 7.2 The main contention of the petitioners that the land is patta land and they can decide the purpose for which it will be put to use is not acceptable, since whether water body is for irrigation or any other purpose and whether public use or private, if it is just marked in the register as water body, is sufficient to maintain it as water body as per the decision of the Hon'ble Division Bench of this Court.

7.3 Section 5 r/w 13 of the Act meant that the Chapter-II in which the said provisions are meant for survey of government lands and the estate 41/56

land are dealt with in different chapter. Therefore the non-publication of gazette notification under Section 5 of the Act is not applicable, but only a procedural formality when factum of existence of water body (thangal) is there for more than 120 years, sufficient to maintain it as a water body. Admittedly the map used by the Department was prepared in the year 1905 contains details of Thangal. Therefor the government as a custodian of water sources has to maintain in its original form. 7.4 Further Section 83 of the Evidence Act, which makes presumption in favour of the maps used by the revenue department is reliable. More over, in catena of judgments with regard to natural resources and water bodies the Hno'ble Supreme Court has held that principles of parens patriae is applicable. Therefore a water body remains as a water body forever and hence the petitioners should not alter the water body situated in the subject land.

The learned counsel for the private respondents would submit that under the document No.2358/1937, the land was sold by a society 42/56

named Madras Pinjrapole to one TN Ramachandra Naidy, and the recitals of the same clearly shows that this Madras Pinjrapole bought the land from official assignee of Madras from the Estate of one D.Sadasiva Rao in 1926, In the description of the lands given in the schedule of this document, it clearly states that 514.84 acres includes all the trees, plants, laks well etc., Therefore when the lands were purchased in 1926 itself there existed lakes within the said property.

8.1 CIBA Ltd., purchased the lands from one CK Sunderaj S/o CS Krishnaswamy Naidu and his son Rampriya Das in 1967 vide document no. 4176/1967 dated 19.09.1967. Therefore it is clear that even in 1967, the lake/Thangal was part of the conveyance and it's existence and use was very much recorded and accepted. Even in the conveyance deed the plant was annexed and for reasons best known to them the petitioners have not filed the plan that is stated to be annexed to the conveyance deed which marks the location of this lake. Similarly, in the conveyance of the lands from CIBA to Sujatha Cine Arts, the recitals also state that the conveyance of the lands included the conveyance of the water courses within the properties. Hence, it 43/56

is clearly established without any doubt that, excluding the village map, the Thangal has existed in written records available before this Court, from at least 1924. Therefore, this was not a recent man made creation of Sujatha Cine Arts for its horses as contended by the petitioners. Even when they used the Thangal for their horses, the private respondents were not denied access to the Thangal and continued grazing the cattle there and using the Thangal for fishing and other uses.

8.2 Even in the said conveyance deed, when the 514 acres of land was conveyed, those lands did not include the Periya Eri in Survey Number

368. Sitteri Thangal and Sitteri Kulam in Survey Number 367. A perusal of all the sale deeds including the conveyance of the 514 acres of land clearly demonstrates that Survey Number 368, 367 were never part of the transaction. Therefore, it cannot even be argued that the lake referred to in the earlier conveyance deeds was a reference to Periya Eri or Sitteri Thangal and Kulam.

8.3 The second contention of the petitioners is that the village map 44/56

of Kayarambedu reprinted in 1959 after tracing from the lithograph village map of 1906 was never notified under Section 13 of the Act and hence cannot be relied upon for invocation of RSO 26(15). A perusal of the scheme of the Act, it is clear that there is no mandate under the Act that all lands within the state are to be surveyed and notified under the Act. The preamble of the statute states that the Act has been legislated to "survey the lands and settlement of boundary disputes". Therefore, the object of this enactment was to empower the Government to settle boundary disputes, especially with regard to claims on government land and the structure and the Act also establishes the same.

As per Section 5 the Act, the State Government by notification under Section 6 of the Act, may order a survey of government land or of any boundary of such land or of the boundary forming the common limit of Government land and land that is not government land. During this survey ordered under Section 5 of the Act, if the Survey Officer determines that certain boundaries are not disputed, then she may notify the same after notice to the parties. Thus, the genesis of any action under this Act is the exercise of discretion by the Government to initiate action under this Act.

state or mandate that all boundaries within the State need to be re-surveyed as per this Act and be notified. It does not state that any boundaries not notified under this Act cannot be relied upon or anything to that effect. If the Government identifies any dispute as to boundary, the Government will notify the said dispute for determination of boundaries under this Act. The Act does not nullify the existing demarcation of boundaries if there is no dispute with regard to the same.

8.4 In the present case, it is submitted that the boundaries of the patta lands of the petitioners or their predecessors has never been disputed. The boundaries of the Thangal have also never been disputed. The Thangal occupies 19 acres of land. The survey numbers of the Thangal were old number 370/1A2 and 370/2F. The new survey number of the Thangal is 430/1C.

8.5 As per the provisions of RSO 26(15), even though it is a private land, the Thangal situated in the private land has to be maintained as it is and any attempts to close the Thangal and sell the same would amount to an encroachment of the Thangal which is a water body. It is a 19 acre water 46/56

body where there is water year round if the village receive good rains. Only in the periods of drought that the Thangal has dried up completely. It serves as a source of water for cattle. Most importantly, the Thangal helps to replenish the groundwater table. Since the water is held in the Thangal for extended periods of time and most times, throughout the year, water slowly percolates below and recharges the ground water and the villagers are reliant upon the wells for drinking water and other activities. The closure of the Thangal will definitely have a detrimental impact on the villagers' lives since there will be less water available for ground water recharge. There will definitely be long term reduction in the ground water table since there will be greater extraction of water with reduced recharge.

The Thangal also serves as a catchment area for the Periya Eri. The filling of the Thangal area of 19 acres with mud and eventually with concrete structures will destroy the flow into the Periya Eri and thereby result in the drying up of the Periya Eri itself. Further, in times of excess rains, the Thangal prevents flooding of the surrounding areas including houses and lands. If the Thangal is filled up, it will also result in flooding of lands because there will be no area to hold this water.

recharge of the ground water table and the Periya Eri which will result in water shortage in that area and it will also lead to flooding in times of rain. Both such situations will be detrimental to villagers' lives. 8.6 Further he would submit that the water bodies in Kayarambedu Village are all part of the continuum of network of water bodies in the Adyar sub-basin and the destruction of one water body will consequentially affect the other water bodies and the Adyar river itself and filling up of the Thangal will also pose a risk to all lives in the future once cement structures are built by the petitioners. The waters will end up being diverted to the lands and houses since there will now be cement houses obstructing the flow of water and many of the houses are still thatches huts which will not pose a threat to the flow of water.

The above contentions have not been addressed by the authorities like DTCP since they were never informed that there existed a Thangal within the lands and that the petitioners intended to fill up the Thangal and sell the same.

sustained to ensure and protect the water security of villagers and the region. The respondents have no objection to the petitioners selling their patta land, but, however, the filling up and sale of the Thangal is against the law and will have an adverse impact on both the villagers and those persons who buy the plots from the petitioners.

8.7 Merely because the Village Map of 1906 was not notified under Section 13 of the Act and hence cannot be relied upon for invocation of RSO 26(15) is not acceptable, since there is ingress and egress for the Thangal and even in the conveyance deeds, it is clearly mentioned that this Thangal is only one of the source of Periyar Eri, Sitteri Thangal and Kulam as the case may be. Therefore the writ petitioner is liable to be dismissed. Heard the learned counsel on either side and perused the materials available on record.

The subject matter of land is about 19 acres of Thangal only. The learned Senior Counsel for the petitioners contended that even though there is no definition for Thangal, it is only man-made creation, for which the learned Additional Advocate General placed reliance on the Policy note, 49/56

wherein it is stated that in an ancient Tamil Nadu water bodies used for storage of rain water were classified as Eri, Thangal, Kanmai, Oorani, Kulam, Enthal, Tharuvai etc., Each name of the water body indicates a particular purpose of the water body. Eri (Vhp) means Lake which is used for irrigation purpose. Thangal & Kanmai are the equal words of Lake. From the above contents of the Policy Note, it is clear that Thangal is also water body. No doubt, in prior title deeds also there is reference about the Thangal and the petitioners also admitted that Thangal is reflected in the Village Map of the year 1906 and reprinted in the year 1956.

Even the official respondents also admitted that it is only private patta lands, but however as per RSO 26(15), even if any water body exists in the private land, it is a Government land for limited purpose and the structure of the water body should not be changed/closed/altered/encroached.

map published under Section 13 of the Act, then only RSO 26(15) would apply notified boundaries and not otherwise, whereas, the learned Additional Advocate General for the official respondents clearly stated that it is not mandatory and if there is any dispute regarding the boundaries then only it shall be notified and when there is no dispute regarding boundaries it need not be notified and therefore it is only discretionary power of the Government. In the present case, there is no dispute with regard to the boundaries and also the patta land.

The only core question to be decided in both the writ petitions is that whether the subject land of 19 acres is a water body or not. Once the subject land is shown as Thangal, in the Village Map 1905 reprinted in the year 1956, it is a water body and there exists ingress and egress as per RSO 26(15), if there exists ingress and egress, there must be source of water from the outside of the patta land and there should be drain of excess water from the said water body. All the documentary evidence and also the Village Map clearly shows that though the Thangal is also water body and source of water from outside the private land and the excess water also goes to the Periyar 51/56

Eri or Sitheri Thangal and Kulam as the case may be. There is no dispute that the Thangal is a water body, which is situated in the private land, which is also referred in the parent documents. It is contended by the petitioners that the vendor of the petitioners used the Thangal for maintaining Horses, subsequently they purchased the land and fenced the entire land and public were not allowed to use the same. However, the private respondents have stated that they used the Thangal for grazing the cattle there and for fishing and other uses.

Though the petitioners have stated that with permission or private arrangement and agreement, they used it, however once said Thangal shown in all the documents of the predecessors in title of the petitioners and also Thangal showed in the village Map, as per RSO 26(15) it cannot be closed/altered/encroached. Even the petitioners themselves admitted that the subject Thangal, which is a water body exist from the year 1906, since it was not notified under Section 13 of the Act, it cannot be stated that the RSO 26(25) would not apply. All the water bodies are covered under RSO 26(15).

the reason also stated that the closure of the Thangal will definitely have a detrimental impact on the villagers' lives since the Thangal prevents flooding of the surrounding areas including houses and lands. If the Thangal is filled up, it will also result in flooding of lands because there will be no area to hold this water. Further filling up of the Thangal will be detrimental both for the recharge of the ground water table and the Periya Eri which will result in water shortage in that area and it will also lead to flooding in times of rain.

Therefore since the water bodies in Kayarambedu Village are all part of the continuum of network of water bodies in the Adyar sub-basin and the destruction of one water body will consequentially affect the other water bodies and the Adyar river, it will cause trouble to Thached and small houses and also over flow in the rivers like Adayar Coovam also create trouble to the innocent public. Hence even though the Thangal , which is a water body situated in the private land, once it is shown in the Village Map and it is not mandatory to be notified under Section 13 of the Act, which is not mandatory RSO 26(15) applied to the subject Thangal to the extent of 19 acres.

the Writ Court. In the parent documents of conveyance of the predecessors of the petitioners itself, the subject Thangal has been mentioned, which also referred the subject Thangal is one of the source of water body to the Periyar Eri or Sitheri Thangal or Kulam as the case may be. In view of the above and considering the fact that the water body should not allowed to alter or close and considering the entire facts of the case, the petitioners are not entitled to the relief sought for in these writ petitions and this Court does not find any perversity or illegality in the impugned order of the second respondent.

For the foregoing observations and reasons, these writ petitions stand dismissed. However, the petitioners are at liberty to workout their remedy in the manner known to law. No costs. Consequently connected miscellaneous petition is closed.

14.06.2024 Index: Yes/No 54/56

cgi To

1. The District Collector, District Collector's Office, GST Road, Chengalpet - 603 001.

2. The Revenue Divisional Officer, Chengalpattu Division, VOC Nagar, Chengalpattu - 603 001.

3. The Tahsildar, Chengalpet Taluk Office, Chengalpet District - 603 001.

4. The Director, Directorate of Town and Country Planning 2nd, 3rd and 4th Floor, CMBA Complex, E and C Market Road, Koyambed, Chennai - 600 107.

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P.VELMURUGAN, J., cgi Pre-Delivery Orders in W.P.Nos.36373 and 36376 of 2023 and W.M.P.Nos.36369, 36370, 36372, 36373 and 36374 of 2023 14.06.2024 56/56