IN THE HIGH COURT JUDICATURE AT MADRAS DATED 10.11.2010 CORAM THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN W.P.No.776 of 2010 & M.P.No.1 of 2010 Anna Makkal Nala Sangam Represented by the President V.Chinnaiah, Perumpakkam Village, Sholinganallur Taluk, Kancheepuram District .. Petitioner Vs 1.The Secretary to Government Revenue Department Fort St.George, Chennai 600 009. 2.The District Collector, Kancheepuram District, Kancheepuram. 3.The Tahsildar, Sholinganallur-Taluk, Kancheepuram District. 4.Tamil Nadu Slum Clearance Board, Represented by the Chairman, Kamaraj Salai, Chennai 600 005. .. Respondents Prayer: Writ petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus to call for the records in G.O.Ms.No.393 dated 19.8.2010 passed by the first respondent and quash the same and consequently directing the third respondent to issue patta in favour of the petitioner by implementing the G.O.Ms.No.854 Revenue 1(2) Dept. dated 30.12.2006, G.O.Ms.No.34 dated 23.01.2008 and G.O.Ms.No.43 dated 29.1.2010 passed by the Revenue LD.1(2) Department (Amended as per the order of this Court dated 20.9.2010 in M.P.No.1 of 2010 in W.P.No.776/2010) For Petitioner : Mr.N.G.R.Prasad for Mr.M.Rajendran For Respondents : Mr.S.Gopinathan, Additional Govt. Pleader for R1 to R3 Mr.P.S.Raman, Advocate General for Mr.R.Chellamuthu for R4 O R D E R
The petitioner Association representing the cause of their members, who are residing in Nookampalayam, Anna Street, Nethaji Nagar, Muthamil Nagar, Krishnaveni Nagar coming under Ward No.3 in poromboke land Survey Nos.536, 537 and 538 of Perumbakkam Panchayat, Sholingnallur Taluk, Kancheepuram District, had filed this writ petition praying for quashment of G.O.Ms.No.393 dated 19.8.2010 passed by the 1st respondent and consequently directing the 3rd respondent to grant patta in respect of the land in Survey Nos.536, 537 and 538 by implementing the G.O.Ms.No.854 Revenue 1(2) Dept. dated 30.12.2006, G.O.Ms.No.34 dated 23.01.2008 and G.O.Ms.No.43 dated 29.1.2010 passed by the Revenue LD.1(2) Department.
2. The facts necessary for disposal of the writ petition are as follows:
2.1. According to the petitioner Association, it is registered under Tamil Nadu Societies Registration Act, 1975 and it has been formed to take care of the needs of the people, who are residing in the above said places.
2.2. The petitioner would aver that the members of the petitioner Association are poor and down trodden and they are socially and economically backward and they are below the poverty line and most of them are struggling for the basis needs i.e., food, cloth and shelter. It is further averred that the members of the petitioner Association have been occupying small areas of poromboke lands for more than 15 years and by constructing permanent structures, they are residing in their respective houses and they are residing within Survey Nos.536, 537 and 538 of Perumpakkam Village. The said lands are poromboke lands and classified as ‘Tharisu’, coming under Ward No.3 in Perumpakkam Panchayat.
2.3. The petitioner would further aver that the above said residents are provided with electricity connection, family card, voter identity card and almost all of them are paying property tax to the local bodies and it has also constructed three water tanks to provide water supply to the residents. The Hon’ble Minister for Housing Board, Government of Tamil Nadu has also promised the residents that the Government will build houses for them or they will be provided with 2 cents of land each. The children of the residents are studying in local school and there are temples, mosques and churches to cater to the religious needs of the residents.
2.4. During August 2009, the Government authorities came to Nethaji Nagar and Krishnaveni Nagar all of a sudden and demolished more than 500 houses without any notice whatsoever and when the residents questioned, they were informed that the 4th respondent is going to construct tenements.
2.5. According to the petitioner, the residents are entitled to patta in terms of the above said G.O’s and the action on the part of the Government authorities are high-handed. Therefore, the petitioner came forward with the present writ petition.
3. In the typed set of papers filed along with this writ petition, copies of ration cards, property tax receipts, electricity board white cards have been enclosed to substantiate the contention of the petitioner.
4. The petitioner has filed an affidavit dated 25.3.2010, alleging that though they had obtained ad-interim injunction in respect of the above said Survey Nos., some of the residents in Survey No.538 were evicted by the 4th respondent on 20.2.2010 and 21.2.2010 and the water supply are also disconnected and so also the electricity supply. Therefore, prayer has been made to restore the electricity service connection and the water supply.
5. This Court vide order dated 25.3.2010, has appointed an Advocate Commissioner to ascertain whether the electricity and water supply are disconnected and as to the present status. In pursuant to the warrant issued by this Court, the Advocate Commissioner has visited the spot and filed his report dated 26.3.2010 stating that out of 11 electricity service connections in Survey No.538, power is available only in respect of 2 houses and that all houses were demolished except a few. The Advocate Commissioner further submitted that though water supply is available in Survey Nos.536 and 537, there is no water supply for the houses situated in the above said Survey Nos.
6. The 1st respondent has filed its counter affidavit dated 30.1.2010 and it is stated among other things that the Government of Tamil Nadu have given permission to the 4th respondent to enter upon the lands bearing Survey Nos.479, 482 to 485, 508 to 511, 516 to 518, 523, 524, 527, 528, 538 to 544 and 546, admeasuring to an extent of 46.65 hectares (115.23 acres) in Perumpakkam Village of Sholinganallur Taluk, Kancheepuram District, for implementing a Housing Sheme to rehabilitate the poor slum dwellers living upon the objectionable lands along Adyar, Cooum river and Buckingham Canal and Tsumani victims vide G.O.Ms.No.51, Revenue [LA5(1)] Department, dated 24.1.2007. The 4th respondent intend to develop township consisting of 19928 tenements with all necessary infrastructures on the said lands under Jawaharlal Nehru National Urban Renewal Mission (JNNURM) on top priority basis. Accordingly, the officials of the 4th respondent and the Revenue officials went to the scheme area to carry out the process of evicting the encroachers, but they faced steep resistance. Anti social elements are also started obstructing/preventing the Government officials from discharging their duties and some of them are also indulging in illegal sale of Government lands to others. The 1st respondent further stated that the said persons are trying to grab the lands in the names of poor and escalation of the land cost is a prime factor, leading to the said illegal acts.
7. In respect of Survey Nos.536, 537 and 540 are concerned, the said land admeasuring roughly about 85.90 acres and according to the 4th respondent, the lands in those Survey Nos. are absolutely necessary for the proposed multi-storied tenement constructions. Hence the 4th respondent vide letter dated 7.10.2009 has applied to the 2nd respondent for alienation of the said lands and necessary proposals were also submitted after complying with the procedural formalities. The officials of the 4th respondent visited the lands in the above said Survey Nos. for inspection and enumeration of the newly proposed additional scheme area.
8. In so far as the Government Orders relied by the petitioner Association for grant of patta to the occupants, the 1st respondent have stated that the above said Government Orders are very clear that eligible Government Poromboke lands are available for the assignment of house site, provided that the said lands are no more required for any other public purpose. However, the lands in above said Survey Nos. are required for public purpose for the construction of multi-storied tenement apartments with full infrastructure facilities for the benefit of 20,000 families living in Chennai slums. The 1st respondent would further state that the lands in Survey No.536 is measuring 17.90.0 hectares and is classified as Government Manavari Tharisu and there are about 100 huts which are in damaged condition and they have been put up by way of unauthorized occupation. Survey No.537 measures 18.84.0 hectares and it has been classified as Government Manavari Tharisu and there are approximately 200 authorized occupants, out of which 150 huts lies vacant with damaged condition and encroachments are there in that lands also. Survey No.540 measures 1.62.0 hectares and it comes under the same classification and there are encroachments by way of a church and 10 huts.
9. It is the specific stand of the 1st respondent that all these encroachments and the acts of the members of the petitioner Association/residents are nothing but land grabbing of the public property. The 1st respondent has also stated that this Court vide order dated 26.8.2009 and 27.8.2009 in W.P.No.21480/2008 has passed an order for removal of the encroachments in Survey Nos.541, 542, 543, 544 and 546 for the purpose of handing over the same to the 4th respondent for construction of tenements and in respect of the balance Survey Nos. the 4th respondent has done enumerations and identified the persons in actual possession and enjoyment of the portion of the lands and photo identity cards with particulars will be issued to the encroachers and after completion of the construction on the said lands, eligible persons will be allotted tenements. The above said order passed in the writ petition makes it clear that the claim of the persons who are in actual possession and the enjoyment of the lands and who have filed writ petition for grant of patta, should be considered by the 4th respondent for allotment on completion of the project, subject to the condition that they produce sufficient material evidence to prove their possession and enjoyment for 5 years or more on the date of issuance of the Government Order and as per the condition enumerated in G.O.Ms.No.34, Revenue [LD1(2)] Department dated 23.1.2008.
10. The sum and substance of the stand taken by the 1st respondent is that only in the Poromboke lands, which are no longer required for public purpose, the question of considering grant of patta would arise, but in the case on hand, enter upon permission has been given to the 4th respondent to construct 23,864 tenements at a cost of Rs.990/- Crores and enumerations will take place and the eligible persons will be given allotment of tenements. Therefore, the 1st respondent prayed for dismissal of the writ petition.
11. The 4th respondent has filed two counter affidavits dated 9.7.2010 and 4.10.2010 and 2nd additional counter dated 30.8.2010. As per the said counter affidavits, the Perumpakkam lands which is also known as Nookampalayam were handed over to the 4th respondent by Revenue authorities on 9.2.2007 in terms of G.O.Ms.No.51, Revenue LA(5) Department dated 24.1.2007. This scheme site is situated very near to Rajiv Gandhi Road (Old Mahabalipuram Road) and is adjacent to Semmanchery Scheme, which was completed by the 4th respondent for the benefit of the poor and Tsunami victims.
12. The 4th respondent would state that when their officials along with the Revenue officials visited the area for fixing the boundaries, soil testing and to enumerate the encroachers, they found that there are already some encroachers and some fresh encroachers were also attempting to illegally occupy the lands and they along with anti-social elements prevented the officials from discharging their duties. The Nethaji Nagar Kudisai Vazh Nalintha Pirivinar Nala Urimai Sangham represented by its Secretary, filed W.P.No.21480/2008 and this Court has disposed of the said writ petition on 27.8.2009 stating that as and when tenements are constructed, the claim of the petitioner Sangham should be considered, subject to the condition that they shall produce sufficient material evidence to prove their possession and enjoyment for 5 years or more on the date of issuance of the above said G.O.Ms.No.51 Revenue LA(5) Department dated 21.4.2007.
13. In so far as Survey Nos.536, 537 and 538, which are the subject matter of the present writ petition, the 4th respondent has stated that Survey No.538 is vested with them and Survey No.536 & 537 are likely to be handed over to them for extending the project area. Enumeration has already been done in Survey No.538 and total number of persons are 167 in numbers and they were issued with tokens and they voluntarily dismantled their residential structures and moved away. The 4th respondent has also denied the demolition of houses and disconnecting electricity service connection and water supply.
14. In the 2nd counter affidavit, the 4th respondent would state that as per G.O.Ms.No.51, Revenue LA(5) Dept. dated 21.4.2007 and G.O.Ms.No.393 dated 19.8.2010, enter upon permission has been given to the 4th respondent for the purpose of implementing the project. In so far as the allegation levelled by the petitioner that Survey No.537 were allotted to Film Employees Federation of South India (FEFSI) and the 4th respondent would state that the said allotment was cancelled. In the 2nd additional counter, the 4th respondent would state that enumerations has been done in Survey No.538 and 167 persons and 18 families were issued with tokens and they refused to receive the tokens issued by them. In so far as grant of patta is concerned, the 4th respondent would state that unless there is no requirement for public purpose, the question of grant of patta would arise. In the case on hand, the lands in question are absolutely required for implementing the scheme for public purpose.
15. In response to the counter affidavit filed by the 1st and 4th respondent, the petitioner has filed a common reply stating among other things that Survey No.537 is likely to be handed over to FEFSI and later on it was cancelled and that Survey No.536 & 537 are still classified as poromboke land. It is further stated that if Survey No.537 is likely to be allotted to FEFSI, the Authorities are under obligation to give patta to the residents of Survey Nos.536 & 538, who are there for more than 15 years. Hence prayer has been made to allow the writ petition.
16. Mr.N.G.R.Prasad, learned counsel appearing for the petitioner would submit that after passing of the G.O.Ms.No.393 dated 19.8.2010 by the first respondent, the prayer made in the writ petition was amended. The learned counsel would further submit that once a decision was taken to hand over possession of lands in Survey No.537 to FEFSI, it has been made clear that the said land is no longer required for public purpose. Once a decision has been taken to cancel the allotment given to FEFSI in respect of the said survey number, the respondents are under obligation to give patta in respect of the lands in the above said survey number along with the adjacent lands in Survey Nos.536 & 538 to the members of the petitioner Association. Since Survey No.538 has already been handed over to Slum Clearance Board, the plea made by the petitioner Association for grant of patta in respect of lands in Survey Nos.536 & 537 may sympathetically be considered for the reason that the respective members of the petitioner Association is in occupation of the lands for 15 years by constructing permanent superstructures and they were also provided with electricity service connections and water supply connections and were subject to statutory levies by the local bodies and other authorities and hence they acquire a right to get patta. The attention of this Court was also drawn to various Government Orders.
17. G.O.Ms.No.854, Revenue 1(2) Department, dated 30.12.2006, issued by the 1st respondent makes it clear that persons who are in occupation of Government lands by constructing houses are to be given house site patta. G.O.Ms.No.51, Revenue (5) Dept. dated 21.4.2007, issued by the 1st respondent would state that in respect of Survey No.479/2, Perumbakkam Village, enter upon permission has been given to the 4th respondent to construct tenements for Tsunami victims. The 1st respondent has issued G.O.Ms.No.34, Revenue 1[LD1(2)] Department dated 23.1.2008 stating that the eligible criteria period for regularization of encroachments in Government lands by way of dwelling houses has been reduced from 10 years to 5 years. The said period of 5 years was further reduced to 3 years by G.O.Ms.No.43 dated 29.1.2010 issued by the 1st respondent and the validity of the said G.O is challenged by the Sivakasi Region Tax Payers Association by filing a public interest litigation and operation of the order has been stayed by this Court.
18. In so far as G.O.Ms.No.393 dated 19.8.2010, which is the subject matter of challenge in this writ petition, the learned counsel would submit that the said order came to be issued in the malafide object of evicting the petitioners who are in occupation for more than 15 years and there is no public purpose involved. It is further submitted by the learned counsel appearing for the petitioner that inspite of interim orders, which are in operation, enter upon permission has been given to the 4th respondent in respect of lands in Survey no.536 & 537 and the said act on the part of 1st respondent would indicate that the 1st and 4th respondent are bent upon to evict the members of the petitioner Association and other residents. It is the further submission of the learned counsel appearing for the petitioner that the act on the part of the respondents are actuated by malafides and bristled with arbitrariness which are in violation of Articles 14 and 15 of the Constitution of India. The learned counsel appearing for the petitioner would further contend that in the event of eviction of the members of the petitioner Association, the respondents are not providing with any alternate accommodation as done earlier and as a result, the children of the members of the petitioner Association, are the persons who are ultimately affected, as they are studying in nearby schools/colleges. Therefore, for the above said reasons, the learned counsel appearing for the petitioner prayed for quashment of the impugned Government order and grant of consequential reliefs.
19. Per contra, Mr.P.S.Raman, learned Advocate General appearing for the 4th respondent would vehemently contend that the lands in Survey Nos.536 & 537 are admittedly Government Manavari Tharisu lands and they are required for the above said public purpose i.e., for the noble object of providing housing accommodation to slum dwellers and persons who are on the banks of Adyar, Cooum river etc., and also to Tsunami victims. Since the water ways are going to be cleaned, the persons living on the banks of those rivers are being evicted and they will be given accommodation along with other eligible persons, as and when construction of the tenements by the 4th respondent is completed. The learned Advocate General would further submit that the members of the petitioner Association and others are rank encroachers and it is false to contend that they are in occupation for more than 15 years. The sole object of the members of the petitioner Association is to occupy the lands illegally and sell the same to some land sharks by taking advantage of the fact that the lands are situated very close to Rajiv Gandhi Road (Old Mahabalipuram Road) and cost of those lands has increased manifold due to establishment of number of industries, especially Information Technology Parks.
20. As regards the claim made by the members of the petitioner Association for grant of Patta is concerned, the learned Advocate General would submit that only if Government lands are not required for public purpose, their claim can be considered, subject to the fulfillment of the eligibility norms. The learned Advocate General has also drawn the attention of this Court to the order dated 26.8.2009 passed in W.P.No.21480/2008, wherein similar issue arose for consideration and the learned Judge after taking into consideration of the rival submissions made therein and in the consent of the respective counsel has passed the following order:
7….. (1) The members of the petitioner’s sangam who are in actual physical possession of the portions of the lands, in Survey No.541, 542, 543, 544 and 546 as per the learned Advocate Commissioners would be relocated to Semmanchery immediately. The undertakings given by the petitioner’s sangam on behalf of all the members are binding and that they would abide by the same.
(2) The request of the members of the Sangam who are in actual physical possession and enjoyment of the lands, in the above said survey numbers as per the report of the learned Advocate Commissioners and who have filed the present writ petition for grant of patta through the petitioner’s sangam should be considered by the resondents for allotment of tenements, on completion of the project, subject to the condition, that they produce sufficient material evidence to prove their possession and enjoyment for five year or more, on the date of issuance and as per the condition contained in G.O.Ms.No.51 Revenue (5) Department dated 24.1.2007 on the same terms and conditions, which are intended to be imposed on the beneficiaries of the above said project.
(3) As the learned Advocate Commissioners, with the help of the concerned officials have identified the persons in actual physical possession and enjoyment of the portion of lands in above said survey numbers, the services of the learned counsel shall be utilized for the purpose of identifying and relocating those who are in actual physical possession, as per their report.
8. In as much as, the order is passed, with the consent of learned Senior Counsel appearing for all the parties, and having regard to the undertaking given by the petitioner’s sangam admitting that its members would subject themselves for relocating without any objection whatsoever, there is no need for continuance of injunction, which has stalled the implementation of the project. Hence the injunction granted by this Court on 29.8.2008 in M.P.No.2 of 2008 dated 29.8.2008 is vacated. It is open to the respondent to implement the project and complete the same as expeditiously as possible.
21. The learned Advocate General would submit that in pursuant to the enter upon permission given to the 4th respondent in terms of the impugned Government Order under JNNURM Scheme, the officials of Revenue and the 4th respondent are permitted to visit the site, do their enumerations to find out the numbers of structures, period of/state of encroachers on those lands. If the persons, who are residing there for more than 5 years and subject to the production of proof of residence, will be issued with identity cards and on being vacated from the respective premises, superstructures will be put up and they will be given allotment. With regard to providing alternate accommodation is concerned, the learned Advocate General on instructions would submit that as on date no flats are available in Okkiyum, Thoraipakkam or any other places. However, steps will be taken in right earnest to find out alternate accommodation to accommodate persons who may face eviction.
22. In response to the said submission, the learned counsel appearing for the petitioner, has drawn the attention of this Court to the decision rendered by the Division Bench of this Court in Sivakasai Region Tax Payers Association v. State of T.N reported in (2008) 5 MLJ 1425, wherein challenge was made to the impugned Government Orders issued by the Revenue Department with regard to the assignment of water course poromboke lands and regularization of certain encroachments. In para 28 to 30, it has been observed as follows:
28. We do not think it may laid down as a matter of general principle of law that irrespective of the question as to whether the land in question is required for any public purpose or not, there should be eviction. It should not be understood for a moment that we are suggesting that all encroachments should be regularized or encouraged. But, if the State Government takes a conscious decision to regularize certain encroachments, which have continued for a pretty long period after the appropriate authority comes to a conclusion that such land is not required for any public purpose or for the State, can it be said that such policy is beyond the jurisdiction of the Stage Government. As a matter of fact, a person by remaining in adverse possession for more than 30 years acquires a right over such property. This is because of the statutory provisions contained in Section 27 of the Limitation Act read with Article 112 of the Limitation Act, where the land belongs to the state.
29. In the present case, the State Government has thought it fit to regularize the encroachment in respect of residences which are in existence for more than 10 years. In that sense it may be true that those persons had not yet perfected their title by adverse possession. However, if the State Government in its wisdom decides to confer right on such persons even though they were yet to acquire such right by prescription, it cannot be said that such policy is per se arbitrary.
30. However, whether such policy is arbitrary or not is required to be examined in the context of the duty of the State to protect environment and to protect the Society. The G.O. makes it amply clear that only where the environment is not affected in the sense that the area is not actually not in use as Eri (lake) or water source either natural or artificial and not required for any public use and for the use of the State, then only the property can be settled.
23. In para 32 of the said order, the following directions were given :
32. In the light of the above discussion, W.P.No.22274 of 2007 is disposed of with the following observations and directions:
(i) G.O.Ms.No.854 (Revenue) dated 30.12.2006 is not illegal.
(ii) The above G.O. must be read along with the provisions of Tamil Nadu Land Encroachment Act, the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act and the Standing Orders of the Board of Revenue.
(iii) The Committee before granting patta is first required to find out whether the provisions contained in the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act are applicable, in which event the question of eviction has to be considered in the light of the provisions contained in the said Act.
(iv) If the provisions of Tamil Nadu Protection of Tanks and Eviction of Encroachment Act are not applicable, the Committee is required to consider whether appropriate action should be taken under the Tamil Nadu Land Encroachment Act, keeping in view the directions issued by the High Court in the judgment referred to in the G.O or whether the land can be settled.
(v) Before settling the land, the requirements indicated in the impugned G.O. as well as the Revenue Standing Orders are to be kept in mind.
(vi) If it is decided to remove the encroachers, it can be done only by following the procedure contemplated under law as highlighted in the Full Bench decision in L.Krishnan v. State of Tamil Nadu, rep. by its Secretary, Department of Revenue (Land Development) Chennai and Others [(2005)3 MLJ 363 : 2005 (4) CTC 1]
24. The learned counsel appearing for the petitioner would submit that once lands in question are not required for public purpose and for the use to the State, there is no impediment on the part of respondents to grant patta to the members of the petitioner Association. The learned counsel appearing for the petitioner vehemently reiterated the submission that the lands in Survey No.537 was originally allotted to FEFSI and though it is stated that the said allotment is cancelled, it would lead to the only inference that the said land is not required for public purpose and hence, the claim made by the petitioner Association, which on the face of it is a genuine one, unsympathetically be considered and necessary relief should be granted to them, as all of them are hailing from poor families and struggling to make both ends meet. The learned counsel appearing for the petitioner would submit that if really the object of the 4th respondent is to provide tenements to the slum dwellers and encroachers of river banks, members of the petitioner Association, who are similarly placed are also entitled to be given accommodation by means of providing each of them 2 cents of land which works out to a very meager portion of the land and the same would not in any way affect the project to be implemented by the 4th respondent.
25. This Court carefully considered the rival submissions and also perused the materials available on record.
26. The issue with regard to the rehabilitation of displaced persons came up for consideration before the Hon’ble Supreme Court of India in Sri Lachhman Dass and others v. Municipal Committee, Jalalabad and others reported in [(1969) 1 SCC 653 : AIR 1969 SC 1126], wherein it has been held as follows:
To provide for rehabilitation of displaced persons was a public purpose but it does not serve any public purpose to provide that if a displaced person is in occupation of somebody’s property he should not be given other property because it will not be expedient or practicable to do so. A public purpose may be served if it had been provided that a displaced person may not be ousted because his business would be ruined or that he would be completely thrown on the street, but to provide in the section that if the Central Government does not think it expedient or practicable for its own convenience or for the convenience of a lessee or licensee who is not a displaced person it may not restore property serves no public purpose. Under the section, the Central Government is entitled not to restore property to serve a purpose other than a public purpose and consequently the section is ultra vires Article 31(2).
27. As per the ratio laid down in the above cited decision, general interest of the community as opposed to the particular interest of the individuals is the primordial consideration. Keeping the principle laid down in the above cited decision, this Court has carefully analyzed the facts and circumstances of the case. It is the specific case of the petitioner that their members are in occupation of the lands in Survey Nos.536 & 537 and also 538 for more than 15 years and they have constructed superstructures/permanent structures and they are also subject to statutory levies by local bodies and they are also provided with electricity service connection and water supply and hence they acquire a right in terms of G.O.Ms.No.854 Revenue 1(2) Department dated 30.12.2006, G.O.Ms.No.34 Revenue 1[LD1(2)] Department dated 23.1.2008 and G.O.Ms.No.43 dated 29.1.2010, issued by the 1st respondent. It is also the case of the petitioner Association that their members are hailing from lowest strata of the Society and they are eking out their livelihood by doing menial works and they are struggling to make their both ends meet. Moreover, their children are studying in nearby schools/colleges and once they are evicted in pursuance to the enter upon permission given to the 4th respondent as per the impugned G.O, their future will be doomed and they cannot eke out their livelihood and even to maintain their minimum basic necessities.
28. Per contra, the stand of the respondents is that enter upon permission has been given to the 4th respondent and they are going to implement the scheme under JNNURM project at heavy cost to provide accommodation to slum dwellers and Tsumani victims and in respect of persons who are in occupation of river banks in Chennai city, as the Government has taken a decision to clean the water ways. The respondents would further state that enumerations would take place and the members of the petitioner Association are coming within eligible norms, they will be issued with identity card and as and when tenements are constructed, they will be given accommodation. It is also the stand of the respondents that only if Government lands are not required for public purpose, the question of granting patta would arise. In the case on hand, the lands in question are required for the above said public purpose and if public interest and private interest fitted against each other, public interest will always be preferred, as it will ultimately serve the welfare of the community at large. In so far as the claim made by the petitioner that their members should be given 2 cents of land each and in the event of granting such a request only, acceptable portion of the lands will be made available, the respondents would state that the said allotment will hinder purpose of the project, cannot be implemented in a proper manner.
29. In Kaalvaithurai Kudisai Vazh Makkal Pothu Nala Sangam v. Government of Tamil Nadu reported in (2010) 1 MLJ 257, the Association representing the cause of encroachers in Kaalvaithurai Salai situated in Aspiran Garden in S.Nos.62, 63/1(part) and 63/2(part) at Egmore Village, Nungambakkam Taluk, Chennai, made a claim for regularization of their encroachments in terms of G.O.Ms.No.854 dated 30.12.2006 (cited supra) and G.O.Ms.No.579 dated 3.10.2008 issued by the 1st respondent. The Chennai District Collector has taken a stand in his counter that the lands may be required for future use and the drinking water supply may get polluted as the lands in question are in close proximity to water ways and therefore, this Court taking into consideration the materials available on record in the said case, in para 23, held as follows:
23. Now, the representation of the petitioner association has been considered. The requirements of the CMWSSB have also been examined and only thereafter, the Collector has rejected the representation of the petitioner association. As stated earlier, the petitioners have no right on the concerned parcel of lands. Their right to get patta is under a Government Order, which is also subject to the first claim of the State for its public purpose. In the instant case, that public purpose has been specifically spelt out, and therefore, the order of the District Collector cannot be faulted with.
In the said case, the respondents therein came forward with a suggestion that the encroachers will be provided with alternate accommodation in Kannagi Nagar which is 2 kms. from the present place where encroachers are residing. The said offer was opposed by the stating that it will cause utmost inconvenience and taking into consideration of the said submission, in para 27, it has been observed as follows:
27. Shifting from a place from where one is already residing is undoubtedly not very comfortable. At the same time, in the instant case, we do not see any reason for the encroachers to make any serious grievance in that behalf. They are provided with good alternate accommodation, which is not very far off and all necessary assistance for shifting purposes has been provided.
Ultimately, the said writ petition was dismissed. As per the above cited decision, since the public purpose has been specifically spelt out, the prayer to get patta under Government Order is also subject to the 1st claim of the said order, which is public purpose.
30. In the case on hand, the counter affidavits filed by the respective respondents would clearly disclose that the 4th respondent in its Board Resolution dated 12.3.2008 has approved to construct tenements (Ground + 7 Floors) at an estimated cost of Rs.814.86 Crores at Perumbakkam under JNNURM Scheme and it is for the purpose of providing housing facility and rehabilitation of those who are poor and living in extremely unhygienic condition in some of Chennai slums. Each tenement will have a plinth area of 313 sq.ft with a multipurpose room, a bed room, a kitchen, a balcony and an individual bath and toilet and total plinth area works out to 393 sq.ft. Each block has also been provided with lift, generator, fire fighting equipments and infrastructure facilities. Under JNNURM scheme, the Central Government is providing 50% of the project cost as grant, the State Government is providing 40% of the project cost as grant and balance 10% has to be paid by the beneficiary in instalments.
31. It is the specific stand of the 4th respondent that taking advantage of the escalation of the cost of the land which lies to acres, proximate to Rajiv Gandhi Road (Old Mahabalipuram Road), some anti social elements under the garb of encroachers, are taking steps to sell the lands at huge costs, solely with a view to prevent the 4th respondent from executing the project, which is meant for public purpose. The 4th respondent would further state that enumerations will be done and persons who prove their claim that they are residing in respective portion of the land for 5 years or more, will be given identity cards and they also will be given allotment after the construction of tenements.
32. In the considered opinion of the Court, the public purpose of the project cannot be doubted. Apart from providing accommodation to slum dwellers or encroachers near the waterways, the 4th respondent has taken a fair stand that persons who are encroaching Survey No.536 & 537, subject to proof of their claim that they are residing in their respective portion for 5 years or more will be given identify cards and will be given accommodation after the construction of the tenements. The stand taken by the 4th respondent will take care of eligible persons.
33. With regard to the submission made by the learned counsel appearing for the petitioner that instead of superstructures, each member of the petitioner Association should be provided with 2 cents of land so as to enable them to put up superstructure according to their choice, this Court is of the view that such a prayer cannot be granted. The members of the petitioner Association, being encroachers, cannot insist that they should be given a plot instead of superstructure.
34. This Court in W.P.No.21480/2008 has considered a similar issue and based on consent, has passed an order dated 26.8.2009, permitting enumerations and directed the encroachers to produce sufficient material evidence to prove their possession and enjoyment for 5 years or more on the date of issuance of G.O.Ms.No.51, Revenue Department dated 24.1.2007. No material has been placed before this Court to take a different stand from that of the above cited decision, as the lands in question which are the subject matter of the above said writ petitions, also lie close proximate to Survey Nos.536 & 537. The Division Bench decision relied by the learned counsel for the petitioner in Sivakasai Region Tax Payers Association v. State of T.N reported in (2008) 5 MLJ 1425, is not applicable to the case on hand for the reason that it has been held in the said decision that regularization of encroachments, which have been continuing for a pretty long period can be made when the appropriate authority comes to a conclusion that the such land is not required for any public purpose or for the State. In the case on hand, the materials placed on record would clearly show and substantiate the stand taken by the respondents that the lands in question are required for public purpose.
35. Challenge was also made to the impugned order on the grounds of arbitrariness and malafides. The question whether an impugned act is arbitrary or not, is ultimately to be answered on the facts and in the circumstances of a given case. An obvious test is to see whether there is any discernible principle emerging from the impugned act and if so, does it satisfy the test of reasonableness.
36. As already stated above, the 4th respondent has implemented the project under JNNURM scheme and State Government contributing 40% towards project cost as grant, has also granted enter upon permission over the lands on the above said Survey nos. under the impugned Government Order. As the requirement is for public purpose and the 4th respondent has also followed the procedural formalities, it cannot be stated that their act is vitiated by arbitrariness.
37. As regards, malafides, it is settled position of law that burden of establishing malafides is very heavy on the person who alleges it. The allegations of malafides are often more easily made than proved and the very seriousness of such allegations demand proof of high order of credibility. As per the decision reported in AIR 1991 SC 1260, State of Bihar v. P.P. Sharma, the determination of a plea of malafides involves two questions namely (i) whether there is a personal bias or an oblique motive, and (ii) whether the administrative action is contrary to the objects, requirements and conditions of a valid exercise of administrative power. In the case on hand, merely stating and pleading that the acts on the part of respondents are actuated by malafides, no material has been placed before this Court to show that the impugned order is vitiated by malafides. The counter affidavits filed by the respondents make it very clear that the object of the project is to provide houses to slum dwellers and encroachers, who are living on the banks of waterways and Tsunami victims and it has been implemented in a massive scale but at huge costs. By grant of patta to the petitioners, there is possibility of non-implementation of the said project in the manner in which it is to be executed.
38. In view of the fair stand taken by the learned Advocate General that after the enumerations, the encroachers in Survey Nos.536 & 537 who are found to be eligible, will be given accommodation in the newly constructed tenements, this Court is of the view that the interest of the members of the petitioner Association will be protected. But at the same time, the respondents may also explore the possibility of providing alternate accommodation to the members of the petitioner Association and other persons who are similarly placed and who are residing in lands in above said Survey Nos. till the completion of the project and allotment. In this regard, the respondents shall make every endeavour to find alternate accommodation to them.
39. In the result, the challenge made to the impugned Government order fails and therefore, the writ petition is dismissed, subject to the observations made in para 38. Consequently, connected miscellaneous petition is also closed. In the circumstances, there will be no order as to costs.
Index : Yes / No
Internet : Yes / No
1.The Secretary to Government
Revenue Department, Fort St.George,
Chennai 600 009.
2.The District Collector,
Tamil Nadu Slum Clearance Board,
Kamaraj Salai, Chennai 600 005.
Pre-Delivery Judgment in
W.P.No.776 of 2010
& M.P.No.1 of 2010