IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.11.2010 CORAM THE HONOURABLE MR. JUSTICE R.SUDHAKAR Writ Petition Nos.21762 to 21780 of 2010 and M.P.No.1 of 2010 in all Writ Petitions W.P.No.21762 of 2010:- K.K.Nair ... Petitioner vs. 1.The District Collector, Kancheepuram, Kancheepuram District. 2.The Tahsildar, Tambaram Taluk, Tambaram West, Chennai-45. 3.The Municipal Commissioner, Tambaram Municipality, Tambaram, Chennai. 4.The Divisional Engineer (Highways), Highways Department, Chennai City Road Division, Chennai-600 015. 5.The Assistant Divisional Engineer, Chennai City Road Division, Highways Department, Saidapet, Chennai-600 015. 6.The Assistant Divisional Engineer (Highways), Tambaram Sub Division, Highways Department, Chennai-600 100. ... Respondents Writ Petition No.21762 of 2010 is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the records of the impugned order dated 13.5.2010 in Na.Ka.Aa5/3191/2009 passed by the second respondent and quash the same as null and void as far as the petitioner is concerned and consequently direct the respondents 1 and 2 to issue the revenue patta for the petitioner premises situated at No.135/120, Velacherry Road, East Tambaram, Chennai-600 059. For Petitioner in WP No.21762 of 2010 : Mr.G.Thangavel For Respondents in WP No.21762 of 2010 : Mr.Rajakalifulla, Government Pleader assisted by Mr.B.Vijay, Government Advocate for R1, 2 and 4 to 6 : Mr.P.Srinivas, ` for R3 -----
COMMON ORDER
Writ Petition No.21762 of 2010 is filed praying to issue a Writ of Certiorarified Mandamus, calling for the records of the impugned order dated 13.5.2010 in Na.Ka.Aa5/3191/2009 passed by the second respondent and quash the same as null and void as far as the petitioner is concerned and consequently direct the respondents 1 and 2 to issue the revenue patta for the petitioner premises situated at No.135/120, Velacherry Road, East Tambaram, Chennai-600 059.
2. The prayer in all other writ petitions are one and the same and have been filed challenging the order of the Tahsildar dated 13.5.2010. By consent of both parties, all the writ petitions have been taken up together and disposed of by this common order.
3. Heard Mr.G.Thangavel, learned counsel appearing for the petitioners, Mr.Rajakalifulla, learned Government Pleader assisted by Mr.B.Vijay, learned Government Advocate, appearing for the respondents 1, 2 and 4 to 6 and Mr.P.Srinivas, learned counsel appearing for the third respondent.
4. The facts which are necessary for the disposal of the Writ Petitions by this Court are as follows:-
(i) Petitioners and similarly placed persons are encroachers of road margin. They have been residing in the said place for quite sometime. On 5.1.2010, the Assistant Divisional Engineer (Highways), Tambaram issued notice calling upon the petitioners and other occupiers of the road margin, viz., the encroachers to vacate and hand over the road margin occupied by them. This resulted in a series of litigation by the occupiers of the road margin, viz., the petitioners in all these cases.
(ii) Petitioners filed W.P.Nos.3364 to 3375 of 2010 to restrain the respondent authorities from evicting them and to grant patta. This relief was negatived. This Court by order dated 25.2.2010, however, directed the petitioners to approach the second respondent, the Tahsildar, Tambaram Taluk with a request to provide alternative accommodation within a period of two weeks from the date of receipt of a copy of the order. The second respondent was directed to consider the grievance of the petitioners and pass orders on merit and in accordance with law within a period of four weeks thereafter. In the said order one month time was granted to the petitioners to vacate and hand over the vacant possession to the authorities for the purpose of developing and improving the highway.
(iii) Petitioners submitted their representation on 20.3.2010 to the Tahsildar, followed by a legal notice dated 27.3.2010 informing the authorities to refrain from evicting them unlawfully.
(iv) Thereafter, the petitioners in W.P.Nos.3364 to 3375 of 2010 jointly filed another W.P.No.6771 of 2010 for a mandamus to direct the respondents to strictly comply with the final order passed by this Court in W.P.Nos.3364 to 3375 of 2010 dated 25.2.2010 and on the basis of G.O.Ms.No.43 dated 29.1.2010, considering the representation dated 20.3.2010. This Court by order dated 1.4.2010 passed the following order:-
“Mr.R.Neelakandan, learned Government Advocate was directed to take notice to the respondents who in turn submitted that the application submitted by the petitioners on 20.3.2010 seeking alternative accommodation as directed by this Court in the earlier order dated 25.2.2010 will be considered and disposed of, before the end of April, 2010. The said submission made by the learned counsel appearing for the petitioners is recorded and if the order is adverse to the petitioners, the petitioners have to vacate the premises by the end of April, 2010 as by that time the examinations of all children will be over.”
(v) Thereafter, petitioners filed W.A.No.910 of 2010 challenging the order passed in W.P.No.6771 of 2010.
(vi) Pending the Writ Appeal No.910 of 2010, the Tahsildar, Tambaram, in his memorandum(nkbyGj;J) dated 13.5.2010 which is impugned in this batch of writ petitions, disposed the representations of the Petitioners as directed by this Court in W.P.Nos.3364 to 3375 of 2010 dated 25.2.2010; W.P.No.6771 of 2010 dated 1.4.2010 and W.P.Nos.3007, 3008, 4576 to 4580, 6620, 9292, 9296, 9294, 13571 to 13577 of 2009 and 1414 of 2010. The impugned order reads as follows:-
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(vii) In W.A.Nos.910, 1048, 1049, 1050, 1054 to 1069 of 2010 the First Bench of this Court passed the following order:-
“4. Learned counsel appearing for the appellants submitted that these appellants are in possession of lands on one side of the Highway, whereas on the other side of the Highway also there is huge encroachment and those encroachments are not being removed by the National Highways Authority. It goes without saying that the authorities of the National Highways shall take steps for vacating the encroachment on the lands on both sides of the National Highway. So far as the grievance of the appellants is concerned, since their grievance have been considered and decided by order dated 13th May, 2010, if they have any further grievance, they are at liberty to challenge the said order before the appropriate forum in accordance with law.
As noticed above, the appellants were allowed sufficient time to vacate the lands, which was also extended. In order to avoid any inconvenience, we further allow time till 15th October, 2010, to enable the appellants to vacate the lands and hand it over to the National Highways Department for the purpose of widening of the National Highway. The appeals stand disposed of with the aforesaid observations and directions.”
5. Taking queue from the order passed by the Hon’ble First Bench of this Court, the present batch of writ petitions have been filed seeking to quash the memorandum dated 13.5.2010 passed by the second respondent Tahsildar and to direct the respondents 1 and 2 to grant patta.
6. The leaned counsel for the petitioner submitted his contentions as follows:-
(i) Without removing the encroachment on the other side of the road as directed by the Hon’ble First Bench, the respondents 1 and 2 are trying to evict the petitioners.
(ii) The Petitioners have vacated a part of the land occupied by them and there is a sufficient space for developing the highway. If the encroachment on the other side of the road is removed, then it will be sufficient for the use of Highways and the Petitioners occupation need not be disturbed.
7. Heard Shri Rajakalifulla, learned Government Pleader, who contended as follows:-
(i) The writ petitions filed by the Petitioners is an abuse of process of Court.
(ii) They are attempting to stall the development of the highways by filing series of writ petitions.
(iii) The request for grant of patta was negatived by the authorities and the Court has also declined to grant such relief in the earlier round of litigation.
(iv) Petitioners cannot frustrate the attempt of the respondents from providing a proper highway by seeking a relief of grant of patta to which they are not entitled to under law.
He prayed for dismissing the writ petitions stating that the time granted by the First Bench of this Court expired. They cannot seek further extension of time beyond the period specified by the First Bench of this Court.
8. Having considered the rival submissions, the plea of the petitioners to interfere with the impugned order cannot be accepted for the following reasons:-
(i) The memorandum which is under challenge is not an order, but only a proceedings of the Tahsildar calling upon the petitioners to submit their claim for grant of alternative accommodation, through the District Collector to the Slum Clearance Board. This request of the Tahsildar is based on the orders passed by this Court earlier.
(ii) While disposing of the representations, the Tahsildar has stated that the land in question occupied by the petitioners by way of shops, residential premises, etc., is an encroachment on the highway and considering the public purpose, the request for grant of patta cannot be considered. He also stated that there is no provision in law to grant the relief. The Tahsildar need not have considered this issue as their claim for grant of patta has already been rejected and upheld by this Court. There was no need to reconsider the issue once again. This should not be taken as a ground to challenge the order once again. All that the Tahsildar was required to consider was the relief with regard to alternative accommodation. It is desirable that the officers like the second respondent Tahsildar should understand the scope of the orders passed by the Court and restrict the issue before them. Unwarranted observations leads to confusions and further litigation as in this case.
(iii) The Hon’ble First Bench of this Court has granted time to the petitioners to vacate and was extended on one occasion stating that no further extension of time will be granted. It, therefore, follows that the question of granting further relief of extension of time to vacate or by granting patta does not arise.
(iv) This is the fourth round of litigation by encroachers to stall the process of widening the road and this is consuming the precious time of this Court.
(v) The reasons stated by the learned counsel for the petitioners that the encroachments in the opposite side of the road has not been removed is no reason for the petitioners to occupy the encroached land. The authorities are bound to vacate all encroachments without discrimination and if the authorities do not remove all encroachments for one or other reasons, particularly, in this case, it will amount to disobeying the orders of this Court passed earlier.
(vi) The petitioners cannot seek any benefit alleging irregularity or partiality on the part of the respondent officers in removal of encroachments. It will not give a right to the petitioners to occupy the encroached land.
(vii) Petitioners have filed an application in the Writ Appeals seeking extension of time only. It will, therefore, be unfair on their part to seek the relief of grant of patta challenging the impugned memorandum, as it relates to grant of alternative accommodation as per orders of Court.
(viii) The petitioners having admitted that they are the encroachers of the land belonging to the highway, have no locus standi to seek the relief of grant of patta.
(ix) The writ petitions challenging the memorandum of the Tahsildar is misconceived and has no legal basis. It is without any merit.
9. In view of the above, this Court finds no good reason to interfere with the impugned proceedings. Taking strong exceptions to the petitioners filing series of writ petitions and wasting judicial time, this Court is constrained to dismiss all the writ petitions. If this attitude persists, then this Court will be constrained to impose cost. All writ petitions are dismissed. Consequently, connected miscellaneous petitions are closed.
Index: Yes 11.11.2010
Internet: Yes
Office to note:
Issue copy on 19.11.2010
kua/ts
To
1.The District Collector,
Kancheepuram,
Kancheepuram District.
2.The Tahsildar,
Tambaram Taluk,
Tambaram West,
Chennai-45.
3.The Municipal Commissioner,
Tambaram Municipality,
Tambaram,
Chennai.
4.The Divisional Engineer (Highways),
Highways Department,
Chennai City Road Division,
Chennai-600 015.
5.The Assistant Divisional Engineer,
Chennai City Road Division,
Highways Department,
Saidapet,
Chennai-600 015.
6.The Assistant Divisional Engineer (Highways),
Tambaram Sub Division,
Highways Department,
Chennai-600 100.
R.SUDHAKAR,J.,
ts
Common Order in
W.P.Nos.21762 to 21780 of 2010
Date 11.11.2010