IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.2.2010
CORAM:
THE HONOURABLE MR.JUSTICE P.JYOTHIMANI
W.P.Nos.38417 and 38418 of 2005, 2895 to 2899, 9939 to 9943,
24290 to 24295 and 36574 to 36580 of 2006,
W.P.M.P.Nos.41115 to 41118 of 2005, M.P.Nos.1 of 2006
(6 petitions in W.P.Nos.24290 to 24295/2006) and 2 of 2006 (6 petitions in W.P.Nos.24290 to 24295/2006), W.P.M.P.Nos.11179 to 11188, 3014 to 3023 of 2006, M.P.Nos.1 of 2006 (7 petitions in W.P.Nos.36574 to 36580/2006), M.P.Nos.2 of 2006 (7 petitions in W.P.Nos.36574 to 36580/2006) and M.P.Nos.3 of 2006 in (7 petitions in W.P.Nos.36574 to 36580/2006) and W.V.M.P.Nos.1964 to 1973 of 2006
W.P.No.38417 of 2005:
K.Sekar .. Petitioner
Vs.
1. The Commissioner
Salem Municipal Corporation
Salem, Salem District.
2. The District Collector
Salem. .. Respondents
and batch cases.
For Petitioners : Mr.R.Shanmugam, Sr.Counsel
in all WPs. For Dr.R.Gopinath
For Respondents : Mr.G.Sankaran
Special Government Pleader
for 1st respondent
Mr.T.Seenivasan
Additional Government Pleader
for 2nd respondent
COMMON ORDER
In all these cases, the common prayer of the petitioners is for a direction against the respondents, viz., the Commissioner of Salem Municipal Corporation and the District Collector, Salem to redeliver various portions of lands stated to have been occupied by the petitioners in various extents at Athipati Village, Salem Taluk, Salem District.
2.1. It is stated that the lands situated in Athipati, Suraiyur and Panaimarathupatti Villages of Salem District were originally patta lands and they were stated to have been cultivated by the petitioners, who are also residing there. It is the case of the petitioners that the original pattadars have given the lands to the ancestors of the petitioners and they are in possession for over 90 years. It is stated that in Panamarathupatti Village the land in Survey No.151 was subdivided and the area occupied by water tank has been marked as Survey No.151/1A and the lands were acquired for construction of a tank for water supply in Salem for Salem Municipality during the year 1905. It is stated that the entire extent of lands do not come under water spread area.
2.2. It is further stated that tank bund and the filter point are situated within 600 Acres in Survey No.151/1A and except the said 600 Acres of land lying in the south west portion, the remaining portions were lying waste and were not brought for the purpose of water storage area and these areas were cultivated by the residents. In respect of Athipatti and Suraiyur Villages, it is stated that there was no acquisition during the British period and the petitioners have been in possession. It is stated that some of the petitioners have grown coconut trees and put up thatched sheds and were living there. It is also stated that the residents also raised paddy crops, ground nut, cotton in the fields and that the villagers have been in possession of those areas. It is stated that there are about 750 wells and oil engines with pump sets installed for the purpose of irrigation and the same are in existence even as on date.
2.3. It is stated that in the year 1982, when the respondents along with the Forest Department have attempted to dispossess the occupiers of the lands situated in Athipatti, Muththanur, Suriyur and Panamarathupatti Villages, some of the members filed a representative suit in O.S.No.1415 of 1982 before the District Munsif Court at Salem for declaration. The suit was dismissed on 28.11.1986. The appeal filed against the said judgment in A.S.No.15 of 1987 on the file of the Principal Sub Court, Salem was also dismissed and the second appeal preferred before this Court in S.A.No.941 of 1989 was also dismissed.
2.4. It is stated that thereafter one Perumal on behalf of the villagers has filed W.P.No.5685 of 1989 to forbear the respondents from taking any eviction proceedings against the occupants living in the villages comprised in Survey No.151/1A of an extent of 1500 Acres in Panamarathupatti Village, Salem Taluk otherwise than by due process of law. The said writ petition was dismissed on 18.4.1998. This Court while stating the petitioner and the persons whom he represents are all encroachers living for many years, held that the petitioner cannot represent the village and restricted the relief only in respect of the petitioner to the effect that he shall not be evicted except by due process of law.
2.5. It is stated that thereafter the respondents along with the officials visited the lands on 14.11.2003 and tried to dispossess the occupants and there was negotiation. As per the decision of the villagers, one Kasi filed W.P.No.33554 of 2003 for a direction not to dispossess the occupants of the lands in Survey No.151/1A, Panamarathupatti Village and it is stated that the said writ petition is pending. It is stated that when the said writ petition was filed by Kasi, certain records relating to ownership of lands were not available and later they came to know that these were patta lands. It is in those circumstances, the present writ petitions came to be filed by the respective petitioners for the relief as stated above.
3.1. In the counter affidavit filed by the first respondent in these cases, while denying the various averments made by petitioners, it is stated that the lands are poramboke lands and the petitioners have no right over the property. If it is the case of the petitioners that they have been in possession for many years, the same is disputed and on the disputed facts these writ petitions are not maintainable.
3.2. It is stated that the land in Survey No.151/A, Panamarathupatti Village to an extent of 86262.0 Hectares (2137.92 Acres) is classified as Govindavadi lake as per the revenue records. It is stated that out of the above said extent, 1303.47 Acres was purchased by Salem Municipality in the year 1905 and another extent of 834.45 Acres was alienated by the Government of Tamil Nadu as per G.O.Ms.No.2838, Revenue Department, dated 29.11.1920 with the previous approval of Government of India for construction of tank in Panamarathupatti Eri to provide drinking water to the entire Salem Town. It is stated that the lands covered in the said 834.45 Acres are situated in Athipatti, Muthanur and Sooriyur Villages and that out of the said lands, the tank is situated in 600 acres and the remaining extent of 1500 Acres of land is intended as catchment area of Panamarathupatti tank.
3.3. It is stated that various persons have attempted to encroach upon the tank and catchment areas and the first respondent/Municipal Corporation has been taking steps by removing the encroachment on various occasions. However, the trespassers of the water catchment area have filed suits and writ petitions on various occasions. It is stated that the land owners of the three villages, viz., Athipatti, Muthanur and Sooriyur Villages of Panamarathupatti Erikkadu, represented by Arumugham and 6 others filed a suit in O.S.No.1415 of 1982 on the file of the District Munsif Court, Salem against the State of Tamil Nadu, represented by its District Collector, Salem; the Commissioner, Salem Municipality, Salem; the Assistant Commissioner, Conservation of Forest, Salem; and the District Forest Officer, Salem for declaration and permanent injunction in respect of the lands measuring 1500 Acres in Panamarathupatti Village and the said suit came to be dismissed on 28.11.1986 holding that the villagers are not in possession of lands and also holding that the said 1500 Acres of land out of 2128.92 Acres of land is a catchment area of Panamarathupatti Tank and they are Government lands.
3.4. The appeal filed against the said judgment in A.S.No.15 of 1987 also came to be dismissed by the Principal Sub Judge, Salem on 29.9.1988 and the second appeal filed before this Court in S.A.No.941 of 1989 also was dismissed on 21.7.1989 confirming the trial court judgment. In spite of the final verdict passed by this Court, it is stated that another suit was filed in the year 1996 in O.S.No.2128 of 1996 on the file of the District Munsif Court, Salem by another batch of villagers in respect of the same property and the same was filed in a representative capacity for all the villagers. The said suit also came to be dismissed by the District Munsif Court, Salem on 8.7.2002 holding that the petitioners have not proved their possession and are therefore, not entitled to the relief sought for. Therefore, there has been a consistent encroachment on this water catchment area and the respondents have been taking strenuous efforts to avoid encroachments.
3.5. It is stated that one Perumal, who is resident of Panamarathupatti Village filed W.P.No.5685 of 1989 in this Court to forbear the respondents from taking any eviction proceedings against the villagers of Athipatti, Muthanur and Sooriyur Villages in respect of the land comprised in Survey No.151/1A in the representative capacity and that writ petition came to be disposed on 18.4.1998 observing that the direction of eviction by following due process of law is restricted only to the petitioner.
3.6. Another person one Kasi, resident of Panamarathupatti Village filed W.P.No.33554 of 2003 seeking a direction to forbear the respondents therein from dispossessing the villagers by referring to the orders passed in W.P.No.5685 of 1989, dated 18.4.1998. The writ petition came to be dismissed as withdrawn on 25.2.2004 giving liberty to the petitioner to seek redressal in civil forum.
3.7. It is stated that the first respondent/Municipal Corporation was planning to protect the lake and water catchment area from encroachment and an action plan was drawn in the year 2003 and that it was postponed due to the parliamentary election.
3.8. It is stated that during January, 2004, 13 persons from the villages filed a separate suit before the District Munsif Court, Salem for permanent injunction to restrain the respondents from dispossessing them, however no interim order was granted in the suit and later the suit was dismissed as infructuous.
3.9. In the meantime, one D.Kaliyaperumal of Panamarathupatti Village filed W.P.No.5967 of 2004 for a writ of Mandamus directing the respondents to remove the encroachments in drinking water reservoir situated in Survey Nos.151/1A and 151/9 in Panamarathupatti Village, Salem Taluk as a public interest litigation. The Division Bench of this Court on 19.4.2004 has directed the authorities concerned to commence the work of removing the encroachments without any further delay and based on that action was sought to be taken. After the parliamentary election was over in May, 2004, it was decided to remove the trespassers from the lands on 2.10.2004 and 3.10.2004, as per the order of the Division Bench of this Court and the villagers were informed about the eviction by loud speaker on 29.7.2004 and 28.9.2004 calling upon them to vacate the premises occupied by them.
3.10. It is stated that most of the trespassers from the nearby villages into the catchment area have removed their encroachment on their own. During the period from 2.10.2004 to 18.10.2004, the Corporation officials with the help of Police and Revenue Officials removed the remaining trespassers in the total extent of 1750 Acres of land. The Corporation has thereafter surveyed the lands and put up barbed wire fence around the area to avoid any further interference and troubles from the villagers. Further, the police officials are also keeping constant vigil against any further trespass.
3.11. In the meantime, it is stated that the said Kaliyaperumal, who is stated to have moved this Court by filing W.P.No.5967 of 2004, has filed Contempt Petition No.640 of 2004 alleging non compliance of the order of the Division Bench of this Court. It was reported before the Division Bench that the trespassers have been removed and accordingly, the contempt petition came to be closed.
3.12. Another person by name S.V.Perumal filed a writ petition in W.P.No.28813 of 2004 to forbear the respondents from interfering with the possession and enjoyment of the land in Survey No.151/1A, Panamarathupatti Village, Salem District and the said writ petition came to be dismissed on 7.10.2004.
3.13. It is stated that all steps taken on behalf of the encroachers have ended against them and by way of filing suits and writ petitions, the villagers have attempted to trespass the tank lands which is a protected area and the same would amount to an abuse of process of court. It is stated that the present writ petitions are filed by suppression of material facts and the same are vexatious. It is stated that the petitioners have come to the court with unclean hands and that the petitioners have no basis for possession over the tank area and the catchment area.
3.14. It is further stated that even the affidavits filed by the petitioners are not having any particulars regarding their right to be in possession and that the lands are not patta lands and they are classified as catchment area of Panamarathupatti tank. It is also denied that there are 750 wells and oil engines situated in the said lands. It is stated in this regard that the Civil Court has already declared that no one of the villagers has proved his possession. It is also denied that the villagers of Athipatti, Muthanur and Sooriyur Villages have occupied the land and constructed houses. It is stated that the petitioners are not in possession of any part of the land and no one is allowed to encroach the lands, inasmuch as the lands are meant for catchment area and water spread area. It is also stated that the encroachers have not been issued any B-Memo in respect of the said lands. It is also stated that there is a mandatory direction by the Division Bench of this Court to remove all the encroachments and based on that the encroachments have been removed.
3.15. It is stated that the present writ petitions filed for the purpose of redelivery of lands on the ground that they were evicted by force are not sustainable.
4.1. It is the contention of the learned Senior Counsel for the petitioners, Mr.R.Shanmugam, that there are records to show that the lands which are stated above are in possession of the respective petitioners and that their ancestors have been in continuous possession for the past many years.
4.2. It is his submission that even if the petitioners are encroachers, law is well settled that encroachers are also entitled to be heard before they are evicted and therefore, their dispossession is opposed to the principles of natural justice.
4.3. Broadly speaking, it is his contention that no one of the petitioners was given any notice or opportunity before he was evicted; that their forceful removal from the lands in possession is opposed to all canons of justice; that there are 760 wells and oil engines situated and the entire area, even though a water course, the water stagnation has never taken place in these years and agricultural activities were carried on for many number of years; and that unless due process of law is followed, the forceful eviction of the petitioners would amount to gross illegality and therefore, the petitioners are entitled to delivery of possession of the said extent of lands and after redelivery of possession any action may be taken by the respondents in the manner known to law.
5. On the other hand, Mr.G.Sankaran, learned Special Government Pleader appearing for the first respondent would bring to the notice of this Court various litigations filed by the petitioners which ended against them consistently and also would bring to the notice of the Court the Division Bench order wherein direction has been issued to the respondents to remove the encroachments. It is his submission that encroachments were removed as per the directions of the Division Bench and therefore, the removal cannot be said to be opposed to law or principles of natural justice.
6. I have heard the learned Senior Counsel for the petitioner, learned Special Government Pleader for the first respondent and learned Additional Government Pleader for the second respondent, perused the records and given my anxious thought to the issue involved in these cases.
7.1. At the outset, it has to be stated that all these writ petitions are relating to the petitioners who are stated to have been evicted from various portions in Athipatti and Sooriyur Villages.
7.2. W.P.Nos.38417 and 38418 of 2005 are relating to lands comprised in Survey Nos.25 and 38 of an extent of 5 Acres and 6 Acres respectively in Athipatti Village. In these writ petitions, miscellaneous petitions for interim injunction restraining the respondents from utilizing the lands stated to have been in possession and enjoyment of the petitioners were filed. While admitting these writ petitions, this Court by order dated 28.11.2005 in W.P.M.P.Nos.41115 and 41117 of 2005 has passed the following order:
“Interim injunction, as it is submitted that without any authority of law, the petitioners’ land has been taken away by the respondents. Notice.”
7.3. Likewise, W.P.Nos.24290 to 24295 of 2006 also relate to various extents of lands in Athipatti Village as follows:
Survey No.
Extent (in Acres)
59
3
113
3
71
3
83
5
73
5
176/1 & 2
4
7.4. Similarly, W.P.Nos.9939 to 9943 of 2006 also relate to various extents of lands in Athipatti Village as follows:
Survey No.
Extent (in Acres)
173
5
119
3
19
3
203/1,2 & 3
3
152/1 & 2
4
7.5. W.P.Nos.2895 to 2899 of 2006 also relate to various portions of land in Athipatti Village as follows:
Survey No.
Extent (in Acres)
58
6
47
5
8
5
19
2
24
4
7.6. Similarly, W.P.Nos.36574 to 36580 of 2006 also relate to various portions of land in Athipatti Village as follows:
Survey No.
Extent (in Acres)
195
5
101
3
122
3
129
3
144
4
49
5
181
5
7.7. Therefore, all the 25 writ petitions cover the above said extents of lands in Athipatti Village.
8. As it is seen in the judgment of the District Munsif Court, Salem in O.S.No.1415 of 1982, which is a suit filed by one Arumugham and 6 Others in a representative capacity on behalf of the residents and land owners of Athipatti, Muthanur and Sooriyur Villages of Panamarathupatti area, it is the admitted case that the Government has acquired land which formed part of original Survey No.151 and the said survey number was subdivided later into Survey No.151/1A measuring 2128.92 Acres. Out of the said large extent, only 600 Acres were made use as a water course and with regard to the remaining portion, the petitioners claim that they are owners for 70 years and they have prescribed their title by adverse possession against the Government and it was with that plea the said suit came to be filed for a declaration. While dismissing the suit, in the judgment dated 28.11.1986, the trial Court has found as follows:
“.. Admittedly the suit lands belonged to the government. The plaintiffs would claim to have been in continuous possession are not able to show their continuous possession over the statutory period. Their occupation has also not been condoned by the 2nd defendant (The Commissioner, Salem Municipality) to whom the entire extent of S.No.151 was made over by the Government for the purpose of providing catchment area for the Panamarathupatty tank. For all these, I hold that the plaintiffs have failed to prove their possession for more than the statutory period and they can not be said to have perfected their title over the suit property and the cultivation of the suit land by the plaintiffs will result in injury to the health of the people who make using of water from Panamarthupatty tank and I answer all the three issues against the plaintiffs.”
9.1. The said Arumugham and others filed appeal on behalf of the villagers in A.S.No.15 of 1987 and the appeal came to be dismissed by the Principal Sub Judge, Salem in the judgment dated 29.9.1988. The Appellate Court, while giving the judgment, has found on fact as follows:
VERNACULAR (TAMIL) PORTION DELETED
9.2. The Appellate Court has held that the said suit filed by the plaintiffs should be considered as a representative suit on behalf of the villagers, which is as follows:
VERNACULAR (TAMIL) PORTION DELETED
10. The said judgments were ultimately confirmed by this Court in S.A.No.941 of 1989. T.Sathiadev,J., as he then was, in the elaborate judgment dated 21.7.1989 has held as follows:
“7. Yet, learned counsel for the plaintiffs, puts forth a strange contention that it is for the defendants, who claim to be in possession of the suit property to show that they have been in complete control over this property without any interference by the villagers. This proposition is unknown as far as the claim of adverse possession is concerned. It is not for the defendants to prove that they have been in possession of the property uninterruptedly, continuously and without in any manner interfered by a third party. To show that within a period of 30 years preceding the filing of the suit, there had been steps taken against the sporadic attempts made by villagers to occupy the area, Exhibits B-3 to B-9 have been filed. Exhibits B-3 to B-8 are the notices sent for remvoal of encroachment of 200 acres. They have been issued in the years 1975, 1976 and 1977. Therefore, when such notice had been sent, it only goes to show that attempts made by villagers to trespass into this property had been objected to by the second defendant. That interferes with whatever claim they would make based on adverse possession. Even on their own admission, the Forest Department Officials have entered the suit property to plant trees. That also shows that the public authorities have been taking steps from time to time to prevent unauthorised occupation of the property. Having filed the suit in 1982, within 30 years preceding that date, when public authorities have intercepted and interfered with the sporadic attempts made by villagers to occupy portions of the land belonging to second defendant, this is certainly not a case wherein the plea of adverse possession could ever be considered.”
11. The said judgment which has become finally decided up to the High Court states in categoric terms that no one of the occupiers have proved their continuous uninterrupted possession so as to claim adverse possession against the Government. Therefore, the civil court judgment on fact has become final.
12. In spite of such declaration having been rejected by the civil court, it is seen that again 10 persons, which includes some of the original plaintiffs, filed suit in O.S.No.2128 of 1996 for and on behalf of the villagers for an injunction not to interfere with their possession except by due process of law and the said suit came to be dismissed by judgment dated 8.7.2002 with the following findings of fact:
VERNACULAR (TAMIL) PORTION DELETED
13. It is relevant to point out at this stage that out of the ten plaintiffs in the latter suit, one among them, viz., Perumal has filed the earlier W.P.No.5685 of 1989, which came to be disposed by this Court on 18.4.1998 stating that he cannot represent the villagers and restricting the relief only in respect of the said Perumal, viz., he shall not be evicted except by due process of law. Thereafter, in respect of the same Perumal, the civil court on evidence found in the judgment stated above dated 8.7.2002 that continuous possession has not been proved and therefore, the plaintiffs are not entitled to the decree of injunction.
14. Surprisingly, another writ petition came to be filed by one Kasi in W.P.No.33554 of 2003 and that came to be dismissed as withdrawn by order of this Court dated 25.2.2004.
15. In another suit O.S.No.144 of 2004 filed by one Pachiappan, on the file of the II Additional District Munsif, Salem for permanent injunction also, while dismissing the suit on 18.8.2005, there is a factual finding in the following terms:
“10. …. The cause of action for the suit has been pleaded to the effect that on 19.12.2003 a publication was made in the daily newspaper calling for tender of machines to remove the encroachments and that publication also is not produce and the plaintiff himself pleads that no specific mention is made with regard to the Suriyur and Athipatti Village in that Publication. So the reason for them coming forward with this suit for the relief of permanent injunction cannot be accepted because no specific mention is made in the newspaper even as per their pleading in para-6 of the plaint and having already decided as per Ex.B1 that the plaintiff is not in possession of the suit property, the equitable relief of injunction cannot be granted and this issue is decided as against the plaintiff.”
16. Another suit filed by one Annamalai in O.S.No.145 of 2004 and yet another suit filed by one Duraisamy in O.S.No.146 of 2004 on the file of the II Additional District Munsif, Salem were also dismissed on 18.8.2005. In those suits filed by various parties, including the above said suits filed in the representative capacity, the parties have represented before the Court that their ancestors have encroached upon the lands and the fact that the lands formed part of water course is not denied. However, the factual assertion made was that they have been in continuous possession and on fact the civil court has consistently found that no one of the occupies have proved their titled by adverse possession and that factual finding has become final.
17. It is in that context relevant to note about the public interest litigation filed by one D.Kaliyaperumal of Panamarathupatti Village in W.P.No.5967 of 2004. In the order dated 19.4.2004, the Division Bench of this Court has passed the following order:
“This is a public interest litigation wherein the prayer made is for removing the encroachments from the catchment area of a drinking water lake. It is insisted and asserted by Mr.C.Selvaraju, learned counsel for the petitioner that this lake supplies water to Salem Municipality, Rasipuram Municipality, Panamarathupatti Town Panchayat and Mallur Town Panchayat. It is pointed out that the encroachments have been made on the catchment area and that is likely to affect the lake itself.
2. Learned counsel Mr.Sankaran appearing on behalf of the Commissioner, Salem Municipal Corporation points out that all the suits filed by those encroachers have been successfully met by the Corporation. The writ petitions filed by them have also been dismissed and there is absolutely no impediment in removing those encroachers and their encroachments treating them to be criminal trespassers. However, it is pointed out that there is a specific notification and direction by the Election Commission of India not to remove any encroachments during the election time. He promises that as soon as the time limit is over, the work of removing the encroachments shall be taken up on a war-footing. In that view, the writ petition succeeds. Direction is given to the concerned authorities to start the work of removing the encroachments without any delay after the time limit given by the Election Commission of India expires. The writ petition is ordered accordingly. No costs.”
18. When it is pursuant to the direction given to the respondents by this Court to remove the encroachments the respondents have removed the petitioners from the respective portions, it is not known as to how the same can be held to be illegal or without jurisdiction. Inasmuch as the direction given by the Division Bench of this Court has become final, based on which the respondents have acted and removed the encroachers, including the petitioners, the contention of the learned Senior Counsel for the petitioners that the removal of the petitioners by force should be taken as illegal cannot be sustained and that will not give any right to any one of the petitioners to have redelivery of lands, especially in a writ petition filed under Article 226 of the Constitution of India. Apart from the fact that these are factual issues which cannot be decided in a writ petition, even on the factual matrix, the entire issue has been settled by the civil court and there is nothing left to be decided further and therefore, the question of redelivery of various portions of lands does not arise. In such view of the matter, I am of the considered opinion that the petitioners are not entitled to any relief.
For the reasons aforesaid, these writ petitions fail and the same are dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
sasi
To:
1. The Commissioner
Salem Municipal Corporation
Salem, Salem District.
2. The District Collector
Salem