IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.08.2010
CORAM:
THE HON'BLE MR.JUSTICE V.DHANAPALAN
W.P. Nos.11775, 11847 to 11852 of 2010
A.SURESH KUMAR [ PETITIONER IN W.P.No.11775 of 2010]
P.POOVATHAL [ PETITIONER IN W.P.No.11847 of 2010]
M/S.SENTHIL ELECTRICALS [ PETITIONER IN W.P.No.11848 of 2010]
REP. BY ITS PARTNER
MR.M.S.RAMASAMY
S.RAMASAMY [ PETITIONER IN W.P.No.11849 of 2010]
R.LOGANATHAN [ PETITIONER IN W.P.No.11850 of 2010]
R.GUNASEKARAN [ PETITIONER IN W.P.No.11851 of 2010]
TMT.SARASWATHI AMMAL [ PETITIONER IN W.P.No.11852 of 2010]
-vs-
1 THE DISTRICT COLLECTOR,
TIRUPUR DISTRICT,
TIRUPUR.
2 THE REVENUE DIVISIONAL OFFICER
TIRUPUR DIVISION,
TIRUPUR.
3 THE TAHSILDAR,
AVINASHI TK.,
AVINASHI TIRUPUR DIST.
4 NATIONAL HIGHWAYS AUTHORITY OF INDIA
(AS PER ORDER DT.20.07.2010) [ RESPONDENTS]
Writ Petition No.11775/2010 filed under Article 226 of the Constitution of India praying for issuance of a writ of certiorarified mandamus to call for the records of the 2nd Respondent herein pertaining to the Notice issued to the Petitioner dated 20.05.2010 made in Na.ka.No. 2322/2010/A4 on the file of the 2nd Respondent herein and Quash the same and further direct the Respondent herein not to disturb the Petitioners peaceful possession and enjoyment of his properties at 3/50 and 3/51 Main Road Avinashi Town and Taluk Tirupur District which is situated in S.F.No.85/B2 of Avinashi Village and Taluk except under due process of law.
Writ Petition No.11847/2010 filed under Article 226 of the Constitution of India praying for issuance of a writ of certiorarified mandamus to call for the records of the 2nd respondent herein pertaining to the notice dt.20.5.2010 made in Na.Ka.No.2322/2010/A4 and as well as the consequential notice dt.1.6.2010 issued to the petitioner by the 3rd respondent herein and quash the same and further direct the respondents herein not to interfere with the peaceful possession and enjoyment of the petitioner properties at Door No.15/54 & 15/55 Main road Avinashi Town and Taluk which is situated in S.F.No.85/B2 of Avinashi Village and Taluk Tirupur District except under due process of law.
Writ Petition No.11848/2010 filed under Article 226 of the Constitution of India praying for issuance of a writ of certiorarified mandamus to call for the records of the 2nd respondent herein pertaining to the notice dt.20.5.2010 made in Na.Ka.No.2322/2010/A4 and as well as the consequential notice dt.1.6.2010 issued by the 3rd respondent herein and quash the same and further direct the respondents herein not to interfere with the peaceful possession and enjoyment of the petitioner properties at Door No.15/55A 55B 55C & 15D (Old Door Nos.3/55A 55B 55C & 15D) which is situated in S.F.No.85/B2 of Avinashi Village and Taluk Tirupur District except under due process of law.
Writ Petition No.11849/2010 filed under Article 226 of the Constitution of India praying for issuance of a writ of certiorarified mandamus to call for the records of the 2nd respondent herein pertaining to the notice dt.20.5.2010 made in Na.Ka.No.2322/2010/A4 and as well as the consequential notice dt.1.6.2010 issued to the petitioner by the 3rd respondent herein and quash the same and further direct the respondents herein not to interfere with the peaceful possession and enjoyment of the petitioner properties at Door No.15/49 & 15/50 Main road Avinashi Town and Taluk which is situated in S.F.No.85/B2 of Avinashi Village and Taluk Tirupur District except under due process of law.
Writ Petition No.11850/2010 filed under Article 226 of the Constitution of India praying for issuance of a writ of certiorarified mandamus to call for the records of the 2nd Respondent herein pertaining to the Notice issued dated 20.05.2010 made in Na.Ka.No.2322/2010/A4 on the file of the 2nd Respondent herein and Quash the same and further direct the Respondents herein not to disturb the Petitioner peaceful possession and enjoyment of his properties at Door Nos. 6/61 6/61A 61B 61C & 61D (Old No.3/61) situated in S.F.No.85/B2 of Avinashi Village and Taluk Tirupur District except under due process of law.
Writ Petition No.11851/2010 filed under Article 226 of the Constitution of India praying for issuance of a writ of certiorarified mandamus to call for the records of the 2nd Respondent herein pertaining to the Notice issued dated 20.05.2010 made in Na.Ka.No.2322/2010/A4 on the file of the 2nd Respondent herein and Quash the same and further direct the Respondents herein not to disturb the Petitioner peaceful possession and enjoyment of his properties at Door Nos. 6/61 6/61A 61B 61C & 61D (Old No.3/61) situated in S.F.No.85/B2 of Avinashi Village and Taluk Tirupur District except under due process of law.
Writ Petition No.11852/2010 filed under Article 226 of the Constitution of India praying for issuance of a writ of certiorarified mandamus to call for the records of the 2nd Respondent herein pertaining to the Notice issued dated 20.05.2010 made in Na.Ka.No.2322/2010/A4 and as well as the consequential notice dated 01.06.2010 issued to Petitioner by the 3rd Respondent herein and Quash the same and further direct the Respondents herein not to interfere with the Petitioner peaceful possession and enjoyment of the Petitioner properties at No.3/52 to 3/60 & 3/60A Main Road Avinashi Town and Taluk Tirupur District which is situated in S.F.No.85/B2 of Avinashi Village and Taluk except under due process of law.
For petitioners : Mr.P.M.Duraiswamy
For respondents : Mr.N.Senthil Kumar, (R1 to R3)
Additional Government Pleader
Mr.P.Wilson, Senior Counsel, (R4)
for M/s Wilson Associates
C O M M O N O R D E R
Heard Mr.P.M.Duraiswamy, learned counsel for the petitioners, Mr.N.Senthil Kumar, learned Additional Government Pleader appearing for respondents 1 to 3 and Mr.P.Wilson, learned Senior Counsel appearing for the 4th respondent National Highways Authority of India.
2. The notice issued by the Revenue Divisional Officer dated 20.05.2010 in Na.Ka.No.2322/2010/A4 is under challenge in all the writ petitions and in W.P.Nos.11847, 11848, 11849 and 11852. Apart from challenging the said notice, the petitioners have also challenged the consequential notice dated 01.06.2010 issued by the Tahsildar, the third respondent herein. The petitioners in all these writ petitions have also sought for a direction to the respondents not to interfere with the peaceful possession and enjoyment of the respective properties of the petitioners in Avinashi Town and Taluk, Tirupur District, which is situated in S.F.No.85/B2 of Avinashi Village and Taluk, except under due process of law.
3. Since the facts and issue involved in all these writ petitions are common, they are taken up together for disposal by a common order.
4. For the sake of convenience, the facts stated in brief in W.P.No.11775 of 2010 are set out hereunder:-
(i) According to the petitioner, he is the absolute owner of the land and building with the attached vacant site at Door Nos.3/50 and 3/51, Main Road, Avinashi Town and Taluk, Tiruppur District, which is situated in S.F.No.85/B2 of Avinashi Village as per the revenue records of the respondents. He claims that he inherited the above said property based on a registered Will executed in his favour by his grand father A.Viswanatha Chettiar, as per document No.75/1985 dated 11.12.1985 in the office of the Sub Registrar, Avinashi. It is his further contention that he has been residing with his family and doing business in the name and style of M/s A.Viswanatha Chettiar and Son at Door No.3/50 and 3/51, Main Road, Avinashi Town and Taluk, Tiruppur District respectively from the year 1992. It is his further case that his grand father late A.Viswanatha Chettiar purchased the said immovable property from the brothers viz., Kaveri Chettiar and Muthuvel Chettiar, by a registered sale deed dated 14.12.1962 in Document No.226/1992 in the office of the Sub Registrar, Avinashi. The petitioner and his forefathers have been in continuous possession and enjoyment of the above said properties for nearly 48 years and the petitioner has been paying house tax for the properties for 18 years. The electricity service connection has been in operation since 1962 and they have been paying water charges eversince the purchase. The grievance of the petitioner is that though the properties are in Grama-Natham, the revenue authorities have been claiming the properties as Natham Vandipettai since the year 1992. It is the further contention of the petitioner that apart from the petitioner, about 42 inhabitants in S.F.No.85/B2 are in possession and enjoyment of their respective properties for several decades.
(ii) The petitioner further states that it is the habit of the revenue authorities to issue notices to the owners of the properties to explain the title or the status of their possession and for that the petitioners and other owners of the properties gave written explanations dated 21.12.1993, 13.06.1994, 16.10.1995, 18.06.1996, 25.09.1997 and 28.04.1998 and thereafter, nothing happened. The revenue authorities every now and then claim their properties as Poramboke land and term all the owners of the properties as encroachers. Even assuming without admitting that the properties are in Poramboke land, the petitioner and his predecessors in title have perfected the title by adverse possession and the Government cannot claim any title over the properties. The petitioner would further state that in view of frequent notices by the respondent authorities, he filed a suit for declaration of title and permanent injunction against the respondents herein and the same is pending trial in O.S.No.224 of 2005 on the file of the Sub Court, Tirupur. The suit was originally filed in O.S.No.10 of 1999 on the file of the District Munsif Court, Avinashi and it was subsequently transferred to Sub Court, Tirupur on jurisdictional reason. The respondents entered appearance through their counsel and filed their written statement and the suit is ripe for trial.
(iii) While that being so, the 2nd respondent, viz., the Revenue Divisional Officer issued notice to the petitioner on 20.05.2010 asking him to appear for an enquiry on 27.05.2010 with the documents in connection with the proceedings to remove the alleged encroachment on the properties in S.F.No.85/B2 of Avinashi Village. Pursuant to the same, he appeared for the enquiry on 27.05.2010 and informed the 2nd respondent about the pendency of the suit in O.S.No.224 of 2005 on the file of the Sub Court, Tiruppur. However, no order has so far been passed by the respondents in respect of his properties. But the 2nd respondent has been threatening that the petitioner will be thrown out of the properties without any further notice. Therefore, the petitioner’s apprehension was strengthened in view of the fact that the revenue authorities surveyed the properties on 31.05.2010.
(iv) It is his further contention that as there is no other effective alternative remedy, he has moved this Court challenging the above notice on the following grounds:-
(a) there cannot be parallel proceedings when a suit is pending in respect of the same property;
(b) respondent authorities are trying to evict without following the settled principle of law;
(c) As the property is situated on the National Highway No.47, inasmuch as the said authorities through a letter dated 01.01.2010 stated that they do not have any proposal to widen the existing road inside the town limits, there is absolutely no reason to interfere with the petitioner’s property.
5. In W.P.Nos.11847, 11848, 11849 and 11852 of 2010, among other aspects, the petitioners further stated that pursuant to the notice of the 2nd respondent dated 20.05.2010 directing the petitioners to appear for an enquiry and the petitioners’ appearance, the 3rd respondent had issued notices under Section 6 of the Tamil Nadu Land Encroachment Act, 1905 on 01.06.2010, which were served on the petitioners on 03.06.2010 to evict them from their respective properties, if they are not vacating the properties within seven days from the date of receipt of notices. Hence, they have also challenged the notices dated 01.06.2010. Apart from the grounds raised by other writ petitioners, they have also raised the following grounds:-
(a) As they are the absolute owners, the action of the respondents is illegal and also against the principles of natural justice.
(b) the eviction notice dated 01.06.2010 issued under Section 6 of the Tamil Nadu Land Encroachment Act, 1905 was caused on the petitioners’ without following the mandatory provision contemplated under Section 7 of the Act.
6. Thus, in all the writ petitions, the petitioners have prayed for quashing the notices referred to above and for the consequential direction as stated above.
7. In all these writ petitions, the 2nd respondent herein, the Revenue Divisional Officer, Tiruppur Division, Tiruppur, who issued the enquiry notice dated 20.05.2010, has filed counter affidavits. It is stated therein that as the cause of action, the property involved, the defendants impleaded and the grounds adduced in all the writ petitions are being similar and identical, the brief history and parawar remarks furnished are common for all the writ petitions. As the statements made in all the counter affidavits are almost similar and common, the counter affidavit filed in W.P.No.11775 of 2010 is taken up for consideration.
7(i) In the counter, it is the stand of the respondents that it is evident from the entries contained in the original R.S.R. of the year 1913 that the land in S.F.No.85B of Avinashi Village with a total extent of 7.02 acres was originally classified as Vandi Pettai (Cart Stand) and in this land, the ancient temple called Sri Avinashilingeswarar Temple is situated and its two traditional cars (njh;fs;) are located; the National Highways N.H.47 road runs through in the midst of the land in S.F.No.85B at Avinashi. At the instance of the Hindu Religious and Charitable Endowment Department, the portion of the lands set apart for use of the above temple in S.F.No.85B were sub divided during the year 1970; the classification of the portions of the land were recorded and mutation in revenue registry were carried out as stated below, vide proceedings dated 04.04.1970 in R.Dis.11623/1970 of the District Collector, Coimbatore/Taluk 8A/183/79.
Sub Division No.
Extent in Acres
Classification recorded
85 B/1
1.25
Sri Avinashilingeswarar Temple
85 B/2
4.07
Natham and Vandi Pettai
85 B/3
1.7
Sri Avinashilingeswarar Temple
7(ii) It is further stated that in respect of the land in S.F.No.85 B/2, the portions of Natham and Vandi Pettai were not separated and distinguished then. Subsequently, taking into consideration the future need and necessity for widening of the National Highways road which runs through the sub division 85 B/2 and including the land in S.F.Nos.80 and 81 of Avinashi, measuring a total extent of 33.01 acres (15.01.0 hectares) were ordered for causing entry in the Prohibitory Order Book vide Proceedings Rc.No.100665/1988/B1 dated 05.09.1988 and accordingly, the lands in S.F.Nos.80, 81 and 85 B/2 were entered in the Prohibitory Order Book early on 05.09.1988 and as such, the above portions of lands were protected from encroachments and further encroachments were prohibited since then. Inspite of the entry of the land in S.F.No.85 B/2 in the Prohibitory Order Book as narrated above, the encroachments gone upto 63 as on date and all the encroachments were brought to B Memo Account; the appropriate assessment and penal charges were levied till the Fasli 1419 against the unauthorised occupations existed in S.F.No.85 B/2 till date. In respect of the petitioner in W.P.No.11775 of 2010, the encroachment was recorded in the name of his father Viswanathan Chettiar and the encroachments now held by the petitioners in W.P.No.11850 of 2010 and 11851 of 2010 were recorded in the name of their grand father Subbana Gounder and the original encroachers having already deceased, their encroachments have now been deleted from B.Memo during 1419 Fasli. In respect of these encroachments, No.7 notices were issued only in the names of the predecessors of the petitioners herein. During the implementation of the U.D.R. Scheme, the land in S.F.No.85 B/2 was classified as cart track by mistake instead of cart stand and natham.
7(iii) According to the respondents, early during the year 1988, at the instance of National Highways Department for the proposed widening of the N.H.47 road, eviction proceedings were initiated then; a few number of encroachers including the petitioners herein sought to file suits for declaration on the file of the District Munsif Court, Avinashi, which were later transferred to the Sub Court, Tirupur and all the litigations pertaining to the encroachments in S.F.No.85 B/2 were heard and disposed of by the Sub Court, Tirupur. Followed by the decree and orders of the Sub Judge’s Court, Tirupur pronounced then, there were no claims for regularisation of the encroachments received from any of the encroachers till date.
7(iv) Further, now, the National Highways Department has proposed the widening of the N.H.47 road and sanctioned the execution of the scheme during the year 2010-2011 vide G.O.Ms.No.15 (Misc.) Highways and Minor Ports Department, dated 19.01.2010. In order to commence the scheme of widening of N.H.47, as a preliminary action, the prior notices under Section 7 of the Tamil Nadu Encroachment Act No.5 of 1905 were caused to be served to persons in occupation during the month of 09/2009 vide B.Memo Nos.176/1419 to 238/1419. The encroachments in S.F.No.85 B/2 which are likely to be affected by the proposed widening of the N.H.47 were inspected in person by Tahsildar, Avinashi on 19.05.2010 and detailed enquiry was held on the spot all the persons in occupation of the land were enlisted and duly enquired and during such detailed enquiry only Tmt.Poovathal and M/s Senthil Electricals represented by M.S.Ramasamy, viz., the petitioners in W.P.Nos.11847 and 11848 of 2010 adduced the copies of the decree and orders in O.S.No.263 of 1999 dated 17.01.2005 and O.S.No.268 of 1999 dated 01.01.2005 on the file of the Sub Judge Court, Tirupur, in which, the suits were decreed in favour of both of them. Except the above, no other occupier came forward to prove their ownership with reference to documentary evidences etc.
7(v) In the counter, the respondents have further stated that in view of the fact that the land in S.F.No.85 B/2 got entered in Prohibitory Order Book early during 05.09.1988 so as to protect the land from encroachments and in view of the proposed widening of the National Highways road and the scheme work need to be executed urgently, all the encroachments in S.F.No.85 B/2 were held highly objectionable and the eviction of all the unauthorised encroachments had become inevitable. Therefore, as a follow up action, a conciliation meeting headed by the Revenue Divisional Officer, Tirupur, the 2nd respondent herein, in which the persons in occupation of the land in S.F.No.85 B/2 participated together with the officials of various departments, including National Highways, State Highways and Police top officials, was held on 03.06.2010, wherein, it was unanimously decided to carry out the eviction of unauthorised encroachments and in turn, the persons in occupation also promised to fully co-operate with the scheme of widening of the N.H.47 and to vacate the premises themselves voluntarily. However, notices under Section 6 of the Act were caused to be served to all the persons in occupation of the land in S.F.No.85 B/2 on 03.06.2010 itself and consequently, the eviction of all the unauthorised encroachments utilised for commercial purpose were carried out on 10.06.2010 with the assistance of the Local Town Panchayat, Police Officials and the Officials of Revenue, Survey and National Highways Department and the entire proceedings of eviction were carried out only in larger public interest and in accordance with law and there were no contravention of rules.
7(vi) It is also stated in the counter that the land in S.F.No.85 B/2 of Avinashi Town, which was originally classified as Vandi Pettai (Cart Stand) recorded at the time of implementation of U.D.R. Scheme instead of Vandi Pettai is only an error crept in, which was not noticed due to oversight. Therefore, it was shown as Cart Track. Hence, the claim of the petitioner herein that the land in S.F.No.85 B/2 is Grama Natham is not correct and contrary to the classification originally recorded in the original R.S.R. Of 1913 year as Natham and Vandi Pettai at the time of effecting Sub Division.
7(vii) Therefore, the unauthorised encroachments in the land were being brought to B Memo for more than two decades and every fasli year, notices under Section 7 of the Encroachment Act 5 of 1905 are being served on the persons in occupation of the land in S.F.No.85 B/2 and the encroachers/petitioners herein are not entitled to prefer claims of adverse possession and the claims of perfect ownership over the land and the prescriptive possession for long years supposed to be held by the petitioners herein shall not vest any absolute ownership over the Government Poramboke land and in support of this legal position, this Court has laid down rulings in several cases of litigations under the Tamil Nadu Land Encroachment Act.
7(viii) Accordingly, notices issued in the impugned proceedings dated 20.05.2010 and 01.06.2010 to the petitioners herein by the Revenue Divisional Officer as well as the Tahsildar are in accordance with law. There had been no indiscrimination or colourable exercise of powers and every efforts were by the defendants herein only
in larger public interest and no coercive methods for the removal of the encroachments were adopted. Eviction Proceedings were initiated by the defendants herein only after the issuance and service of notices under Section 7 and thereafter under Section 6 of the Act and the conduct of conciliation meeting with the encroachers including the petitioners herein and therefore there has been no infirmity or irregularity in the proceedings of eviction of encroachments in S.F.No.85 B/2 of Avinashi Town. Further, out of 63 encroachments in total, almost 90% of the encroachments not covered by any ban or impediments against the eviction proceedings have been removed on 10.06.2010 and only the encroachments covered by the decree and orders of the Sub Court, Tirupur and the interim stay granted by this Court are left over untouched.
7(ix) The clear stand of the respondents in their counter affidavit is that out of 63 encroachments, 19 encroachments were utilised for habitation, 39 were utilised for commercial purpose and 5 encroachments were utilised for both the purposes. On 10.06.2010, 19 encroachments which are utilised for habitation purpose were left untouched. In respect of 5 encroachments utilised for both commercial and residential purposes, for the portions set apart for commercial purpose in all cases, there had been no impediment or Court stay and the 39 encroachments utilised for commercial purpose alone were totally removed. Now, 19 encroachments for dwelling purpose in full and in respect of 5 encroachments utilised for both the purposes, only the portions set apart for commercial purpose alone were removed and the portions utilised for dwelling purpose were left. As such, 24 encroachments utilised for dwelling purpose and not covered by any litigation and the encroachments (part) covered by the writ petitions in these batch of cases are only in existence on ground and these encroachments are situated contiguous and compact abutting the main National Highways road. In view of the fact that the entire land measuring 4.07 acres in S.F.No.85 B/2 had already been entered in Prohibitory Order Book as ordered by the District Collector, Coimbatore then during 05.09.1988, the entire area of 4.07 acres is to be protected from encroachment and therefore, the remaining encroachments are to be evicted. In the above circumstances, they prayed for dismissal of all the writ petitions.
8. Similar counter was also filed by the Tahsildar on the same line as that of the Revenue Divisional Officer. He prayed for dismissal of the writ petitions by stating that notices were issued under Section 6 of the Act only to follow the principles of natural justice and the procedure contemplated under the Act and also for affording an opportunity of hearing and therefore, there cannot be any fault on the part of the 3rd respondent and hence, there is no irregularity or infirmity in the proceedings of the 3rd respondent.
9. I have heard the learned counsel on either side and perused the material documents and analysed the provisions of law and various proceedings.
10. It is seen that the petitioners are in occupation of the lands in question in S.F.No.85 B/2 of the Main Road, Avinashi Town and Taluk, Tirupur District. The petitioners state that they had been put in possession by their predecessors. They stake their claim by producing various documentary proof of sale deeds and other receipts and documents showing their possession. Though they claim that they are in possession for about 48 years, it is admitted by them that they have the proof of their possession in the recent past and according to them, they are in possession and enjoyment of the properties for about 18 years. In their pleadings, the petitioners have stated that the revenue authorities used to issue notices to the owners of the properties to explain the title or status of their possession and the petitioners and other owners used to give written explanation about their status of their possession and their ownership in the property in S.F.No.85 B/2. It appears that they have given representations dated 21.12.1993, 13.06.1994, 16.10.1995, 18.06.1996, 25.09.1997 and 28.04.1998. Thereafter, the authorities have gone to their place and they have intimated that they are encroachers and they are in occupation in Poramboke land and therefore, they have to be issued with B Memos time and again.
11. A few number of encroachers including the petitioners sought to file suits for declaration on the file of the District Munsif Court, Avinashi, which were later transferred to the Sub Court, Tirupur and all the litigations pertaining to the encroachments in S.F.No.85 B/2 were heard and disposed of by the Sub Court, Tirupur. Though, two of the petitioners claim that litigation is pending, infact, it is admitted by them that they have gone before the authorities and produced decrees of the Court in their favour and that was taken into account by the respondents. Therefore, except the two petitioners, others have not shown any documentary proof. Hence, they have been issued with notices under Section 7 of the Act by the respondents. Thereafter, Section 6 notices for eviction of the encroachers were issued.
12. From the historical background of the case, so also the entries in the revenue records contained in the original R.S.R.of 1913 year, it is crystal clear that the land in S.F.No.85B of Avinashi Village with a total extent of 7.02 acres was originally classified as Vandi Pettai (Cart Stand) and in that land, the ancient temple called Sri Avinashilingeswarar Temple is situated and its two traditional cars (njh;fs;) are located; the National Highways N.H.47 road runs through in the midst of the land in S.F.No.85B at Avinashi. At the instance of the Hindu Religious and Charitable Endowment Department, the portion of the lands set apart for use of the above temple in S.F.No.85B were sub divided during the year 1970; the classification of the portions of the land were recorded and mutation in Revenue Registry were carried out vide proceedings dated 04.04.1970, wherein, in S.F.85 B/2 an extent of 4.07 acres have been classified as Natham and Vandi Pettai and the remaining portion of 1.25 acres in S.F.85 B/1 and 1.70 acres in S.F.85 B/3 out of 7.02 acres have been classified as Sri Avinashilingeswsarar Temple land. Therefore, the only land which is available for the respondents as Natham and Vandi Pettai to an extent of 4.07 acres in S.F.85 B/2 are required for their use. Taking into consideration of the future need and necessity for widening of the National Highways Road, which runs through the Sub Division 85 B/2, including the land in S.F.Nos.80 and 81 of Avinashi measuring a total extent of 33.01 acres (15.01.0 hectares) were ordered for causing entry in the Prohibitory Order Book vide Proceedings dated 05.09.1988. Accordingly, the lands in S.F.Nos.80, 81 and 85 B/2 were entered in the Prohibitory Order Book and as such the above portions of lands were protected from encroachments and further encroachments were prohibited since then. Inspite of the entry of the land in S.F.No.85 B/2 in the Prohibitory Order Book as narrated above, the encroachments gone upto 63 as on date and all the encroachments were brought to B Memo Account; the appropriate assessment and penal charges were being levied till the Fasli 1419 against the unauthorised occupations existed in S.F.No.85 B/2 till date.
During the implementation of the U.D.R. Scheme, the land in S.F.No.85 B/2 was classified as cart track by mistake, instead of cart stand and natham as classified in proceedings dated 04.04.1970.
13. The National Highways Department has proposed widening of the N.H.47 road and a Government order has been passed in G.O.Ms.No.15 (Misc.) Highways and Minor Ports Department, dated 19.01.2010 sanctioning the execution of the scheme during the year 2010-2011 and in order to commence the scheme of widening of N.H.47, a preliminary action has been taken and prior notices under Section 7 of the Act has been issued to all the persons concerned intimating that the land in question is already prohibited and it was entered in the Prohibitory Order Book early on 05.09.1988 and it was intimated to the persons who are unauthorisedly continuing even then. As a follow up action, a conciliation meeting was conducted in which the persons in occupation of the land in S.F.No.85 B/2 participated together with the officials of various departments, including National Highways, State Highways and Police top officials on 03.06.2010 and in that meeting headed by the Revenue Divisional Officer, Tirupur/the 2nd respondent herein, it was unanimously decided to carry out the eviction of unauthorised encroachments and in turn the persons in occupation also promised to fully co-operate with the scheme of widening of the N.H.47 and to vacate the premises themselves voluntarily. Thereafter, notices under Section 6 of the Act were caused to be served to all the persons in occupation of the land in S.F.No.85 B/2 on 03.06.2010 itself and consequently, the eviction of all the unauthorised encroachments utilised for commercial purpose were carried out on 10.06.2010 with the assistance of the Revenue, Survey, National Highways, Local Town Panchayat and Police Officials and the entire proceedings of eviction were carried out only in larger public interest and in accordance with law and there were no contravention of rules. That is the specific stand of the respondents, which also cannot be disputed.
14. In the counter affidavit, it is stated that as the petitioners moved this Court and interim stay was granted, their possession was not touched and their lands are left out from the eviction proceedings. They have admitted that in respect of two of the petitioners viz., Poovathal and M.S.Ramasamy, who are the petitioners in W.P.Nos.11847 and 11849 of 2010, the eviction proceedings have been dispensed with in view of the decree and order in O.S.Nos.263 and 268 of 1999 ordered by the Sub Court, Tiruppur on 01.01.2005.
15. In the light of the above position, it is clear that the land in question in S.F.85 B/2 is classified as Natham and Vandi Pettai as per the proceedings dated 04.04.1970 and subsequently, considering the necessity and need, the said land has been ordered to be kept under the Prohibited Order Book as per proceedings dated 05.09.1988. Therefore, there is no ambiguity about the classification of the land as Natham and Vandi Pettai (Cart Stand) and that portions are now required for the widening of National Highways 47 which runs through the midst of the land in S.F.85 B/2 in Avinashi and therefore, the Government, after sanctioning of the execution of the project, issued an order in G.O.Ms.No.15 (Misc.) Highways and Minor Ports Department, dated 19.01.2010 for widening of the N.H.47 road. Accordingly, for the requirement of the lands, the authorities, following the procedure as contemplated under the Act, issued notices under Section 7 of the Act and thereafter, notices under Section 6 of the Act were issued. However, even after these notices and proceedings, the remedy available to the petitioners is to approach the competent authority viz, the Collector under Section 10 of the Act. Instead, the petitioners have rushed to the Court, stating that there is violation of principles of natural justice and that the respondents have not followed the procedure contemplated under the Act.
16. Therefore, looking into the various factors, particularly in respect of two of the petitioners who had the benefit of the decree and in the event of their possession taking the strength of the decree granted by the Sub Court, I am of the view that that it is for the competent authority concerned to see as to whether the said decree can be accepted by them or not and deal with the matter.
17. In such view of the matter, these writ petitions are disposed of with a direction to the petitioners including the petitioners who had the benefit of the decree in O.S.Nos.263 and 268 of 1999, dated 01.01.2005 to prefer an appeal under the provisions of the Act against the eviction proceedings contemplated under Section 6 of the Act before the competent authority, if they are so aggrieved, enclosing all the necessary documents within a period of two (2) weeks from the date of receipt of a copy of this order and if such a course is adopted by the petitioners, the competent authority is directed to look into the same, taking note of all their contentions and their claim on the basis of the Civil Court decree and decide the same in accordance with law and on merits, after providing an opportunity of hearing to all the parties concerned within a period of six (6) weeks thereafter. Till such time, all the parties to the proceedings are directed to maintain status-quo as on today (26.08.2010). No costs. Consequently, connected miscellaneous petitions are closed.
rg/abe
To:
1. The District Collector,
Tirupur Disrict, Tirupur.
2. The Revenue Divisional Officer,
Tirupur Division, Tirupur.
3. The Tahsildar,
Avinashi Taluk,
Avinashi, Tirupur District.
4. National Highways Authority of
India