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Kaalvaithurai Kudisai Vazh … vs The Govt. Of Tamil Nadu on 26 October, 2009

Madras High Court
Kaalvaithurai Kudisai Vazh … vs The Govt. Of Tamil Nadu on 26 October, 2009
       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:  26..10..2009

CORAM

THE HONBLE Mr.H.L.GOKHALE, CHIEF JUSTICE
and
THE HONBLE Mr.JUSTICE D.MURUGESAN

W.P.No.9851 of  2009
and
M.P.Nos.1 and 2 of 2009
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Kaalvaithurai Kudisai Vazh Makkal 
Pothu Nala Sangam (Reg.No.378/1991),
Rep. by its President Mr.S.Murugesan,
Water Tank Road, Kaalvaithurai,
Kilpauk, Chennai  600 010. 						   ..Petitioner.

Vs. 
1. The Govt. of Tamil Nadu,
    rep. by its Secretary to Government,
    Department of Revenue,
    Fort St.George,
    Chennai  600 009.

2. The State of Tamil Nadu, 
    rep. by its Secretary to Government,
    Department of Public Works,
    Fort St.George,
    Chennai  600 009.

3. The Collector,
    Chennai District,
    Chennai  600 001.

4. The Commissioner,
    Corporation of Chennai,
    Chennai  600 003. 
5. The Tamil Nadu Slum Clearance Board,
     rep. by its Chairman,
     Chennai  600 005. 

6. The Managing Director,
    Chennai Metropolitan Water Supply and Sewerage Board,
    Chennai  600 002. 				
									          ..Respondents. 

	PRAYER: Petition filed under Article 226 of the Constitution of India for the issuance of a writ of certiorarified mandamus to call for the records relating to the order dated 26.05.2009 issued by the 3rd respondent herein in Na.Ka.No.03/57403/08; to quash the same and consequently, direct the 3rd and 4th respondents herein to grant pattas to the members of the Petitioner Association and regularize the encroachments in Kaalvaithurai area in Survey Nos. 62, 63/1 (Part) and 63/2 (Part), Egmore Village, Egmore-Nungambakkam Taluk, Chennai in terms of G.O.Ms.No.854 dated 30.12.2006 read with G.O.Ms.No.579 dated 03.10.2008 issued by the 1st respondent herein and to issue such further or other orders that are necessary and proper to meet the ends of justice. 
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		For Petitioner 		:: Mr.N.G.R.Prasad
						   for Mr.K.Elango
		For Respondents  1 to 3	:: Mr.J.Raja Kalifulla, Govt. Pleader 
		For Respondent  4		:: Mr.L.N.Praghasam
		For Respondent  5 		:: Mr.Jai Venkatesh 
		For Respondent  6 		:: Mr.I.Paranthaman 
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O R D E R 

THE HONBLE THE CHIEF JUSTICE

The petitioner is a registered association constituted for the welfare of the hutment dwellers of an area known as Kaalvaithurai situated at Water Tank Road in Kilpauk area of Chennai. This association, through its President has filed this writ petition to challenge the order dated 26th May, 2009 passed by the 3rd respondent District Collector, Chennai. The petition thereafter seeks to direct the 3rd respondent and the 4th respondent (Municipal Commissioner of Chennai) to grant pattas to the 772 members of the petitioner association and to regularize their encroachments in Kaalvaithurai Salai situated near Aspiran Garden in S.Nos.62, 63/1 (part) and 63/2 (part) of Egmore Village, Egmore Nungambakkam Taluk, Chennai in terms of G.O.Ms.No.854 dated 30th December, 2006 read with G.O.Ms.No.579 dated 3rd October, 2008 issued by the 1st respondent Government of Tamil Nadu. The 2nd respondent to the petition is the State of Tamil Nadu through its Public Works Department, 5th respondent is the Tamil Nadu Slum Clearance Board and the 6th respondent is the Managing Director of the Chennai Metropolitan Water Supply and Sewerage Board (hereinafter referred to as CMWSSB).

2. The above referred to land on which the hutments of these 772 persons are situated admittedly belongs to the 6th respondent CMWSSB. The Managing Director of the CMWSSB has opposed this petition by filing his counter affirmed on 9th June, 2009 and the District Collector, Chennai has also defended her order, which is impugned herein, by her counter affirmed on 15th June, 2009. The President of the petitioner association has filed a rejoinder to these affidavits. All necessary documents and orders are filed by the parties by way of typed sets of papers. The petitioner association has also relied upon the photographs of the structures which are occupied by its members, whereas the respondents have relied upon the photographs of the tenements which are offered as alternative accommodation to those occupants who are eligible for the alternative tenement.

3. The short facts leading to this petition are as follows:

A writ petition bearing W.P.No.1923 of 2008 was filed by Federation of K.K.Nagar Residents Welfare Association in public interest against the State of Tamil Nadu, CMWSSB and the Tamil Nadu Slum Clearance Board seeking steps to remove the unauthorized encroachments in S.Nos.63/2, 63/3 and 62/2 of Kaalvaithurai Salai, Aspiran Garden, Egmore Village, Kilpauk, Chennai 10. This was on the ground that the main water pipeline which supplies water to the city of Chennai passes through these lands. There are large size water supply pumping mains located in these lands and that there is an extension programme under the Krishna Water Project. It was submitted that a number of hutment dwellers have encroached upon these lands, and that too, on the pipelines, which is likely to contaminate the pure water supply to the residents of the city. It was submitted that the structures put up by the encroachers over the pipelines are mostly made up of plastic sheets and other non-degradable substances and they have no proper lavatories, and this is posing a great health hazard to the residents of Chennai. It was submitted that initially the number of encroachers was less than 100 and the Government of Tamil Nadu was expected to act under G.O.Ms.No.1488 dated 3rd November, 1988 to direct the removal of these encroachments and rehabilitate all the encroachers who have encroached upon the land prior to the cut off date viz., 30th June, 1984. This was, of course, subject to the fulfilling of the criteria laid down in that Governmental Order.

4. Another writ petition in W.P.No.12288 of 2006 was filed by Dr.Ambedkar Nagar Kalvaithurai Salai Colony Kudiyirupor Sangam rep. by its President M.C.Mani having address at Dr.Ambedkar Nagar, 2nd Street, Aspiran Garden Street, Kalvaithurai Salai Colony, Kilpauk, Chennai 10. This was filed against the Government of Tamil Nadu, Tamil Nadu Slum Clearance Board, and CMWSSB. This petition sought a direction to the 2nd respondent Tamil Nadu Slum Clearance Board to give effect to their commitment to an alternative site at Okkiyam Thuraipakkam as contained in their letter dated 8th January, 2006.

5. Both these writ petitions were disposed of by a Division Bench of the then Chief Justice A.P.Shah, J. and Smt.Prabha Sridevan, J. In its order on the first writ petition viz., W.P.No.1923 of 2008 the Division Bench noted that the Slum Clearance Board had carried out a survey of the encroachers on S.Nos.63/2, 63/3 and 62/2 in pursuance to the order dated 19.8.1991 passed in an earlier writ petition viz., W.P.No.3248 of 1990 and some 88 families were found in the 1984 Voters List. The Court noted that the encroachers had filed two suits in the City Civil Court, Chennai one suit bearing O.S.No.5880 of 2004 had been dismissed for non-prosecution, whereas another suit bearing O.S.No.1305 of 2001 had been decreed with a direction to the CMWSSB not to evict the encroachers except in terms of G.O.Ms.No.1488 dated 3rd November, 1988. The Court recorded the statement of the Government Pleader that the CMWSSB was agreeable to provide alternative accommodation to those, whose cases are covered by G.O.Ms.No.1488 dated 3rd November, 1988. The Court, therefore, passed the following operative order on 12.03.2008:

8. Having regard to the fact that the encroachments are likely to endanger the supply of drinking water to the city of Chennai, we are of the opinion that urgent steps need to be taken to remove the encroachments on the lands of the second respondent CMWSSB. We direct respondents 1 and 2 to remove all the encroachers from the lands in Survey Nos.63/2, 63/3 and 62/2, Kalvaithurai Salai, Aspiran Garden, Egmore Village, Kilpauk, Chennai 10 within a period of six months from today. It is needless to say the hutment dwellers who are in a position to produce the proof regarding their occupation of any portion of the said lands prior to the cut-off date, viz., 30.06.1984 will be entitled to the alternative accommodation as per G.O.Ms.No.1488 dated 03.11.1988. It is left to the State Government to decide whether the encroachers who have occupied the lands subsequently to the cut-off date should be given any alternative accommodation or not.

6. As stated above W.P.No.12288 of 2006 sought alternative accommodation in terms of G.O.Ms.No.1488 dated 3rd November, 1988. The Division Bench, therefore, by its order passed on the same day viz., 12.03.2008 disposed of that petition after noting its order passed in W.P.No.1923 of 2008 that it had directed the removal of encroachments and to provide alternative accommodation to the eligible slum dwellers in terms of G.O.Ms.No.1488 dated 3rd November, 1988.

7. Another Writ Petition No.34592 of 2007 was filed by the same Dr.Ambedkar Kalvaithurai Salai Colony Kudiyiruppor Sangam, now represented by its Secretary Mr.I.Alexander Selvaraj. This petition sought that the respondent District Collector, Commissioner, Municipal Corporation of Chennai, CMWSSB and Tamil Nadu Slum Clearance Board restore the petitioner Sangam members dwelling hutment units situated in those aforesaid parcels of land. The petition was dismissed by the same Division Bench by referring its earlier order passed in W.P.No.1923 of 2008 and observing that those encroachers who were on the site on 30th June, 1984 will be entitled to the protection of G.O.Ms.No.1488 dated 3rd November, 1988.

8. The order passed in W.P.No.1923 of 2008 was challenged in Petition for Special Leave to Appeal (Civil) No.20124/2008 before the Apex Court. The Division Bench of the Apex Court consisting of the Honble the Chief Justice and Honble Mr.Justice P.Sathasivam on 26.09.2008 passed the following order thereon.

O R D E R
The learned counsel appearing for the Tamil Nadu Slum Clearance Board says that the Members of the petitioner Association have been given alternative accommodation at Kannagi Nagar in Okkiam Thoraipakkam and the petitioners may move to the newly allotted place. The petitioner may shift to the alternative place offered to them.

Subject to that the SLP is disposed of.

9. The present petitioner Sangam (i.e., Society) through its Secretary A.Bhoopalan filed one earlier writ petition bearing W.P.No.30792 of 2008. This petition sought a direction as per the order of this Court in W.P.No.1923 of 2008 dated 12th March, 2008 to provide alternative accommodation to those who have encroached after 30th June, 1984 on S.Nos.63/2, 63/3 and 62/2 of Kalvaithurai Salai, Aspiran Garden, Egmore and Purasawalkam Village, Kilpauk, Chennai 10. The Division Bench consisting of V.Dhanapalan, J. and M.Sathyanarayanan, J. noted the order in W.P.No.1923 of 2008 and observed that the order had made it clear that it was left to the State Government to take a decision as to whether the encroachers who have occupied the lands subsequent to the cut-off date should be given any alternative accommodation or not. The Court, however, noted that the petitioner Sangam has not enclosed any proof regarding their claim for alternative accommodation to show whether they are in occupation of the land in question. The Court, however, granted them liberty to file any proof for their claim to the respondents within two weeks, and disposed of that petition by its order dated 30th December, 2008.

10. One more writ petition by Samidosspuram Harijan Kudiyiruppor Nala Sangam bearing W.P.No.737 of 2009 was filed praying not to disturb the occupants of the members of the petitioner Sangam upon S.Nos.63/2, 64 and 3150/2 of Aspiran Garden, Egmore and Purasawalkam Village, Kilpauk, Chennai 10. They claimed to be residing into those lands over 100 years. The matter was heard by S.J.Mukhopadhaya, Acting Chief Justice and V.Dhanapalan, J. The Court noted that no document relating to the right or title was produced and in the absence of the same no protection could be given. The Court dismissed the petition on 21.01.2009, however, observed that the order will not stand in the way of individual members to move before the appropriate authority/forum.

11. One more petition was thereafter filed by the petitioner Sangam bearing W.P.No.2825 of 2009. This petition for the first time prayed that the action of the respondents to vacate them was illegal and contrary to G.O.Ms.No.854 dated 30.12.2006. It also sought a direction to respondents 3 and 4 i.e., the District Collector, Chennai and the Municipal Commissioner, Corporation of Chennai to grant pattas to the members of the petitioner Sangam and to regularize their encroachments in S.Nos.62, 63/1 (part) and 63/2 (part) of Egmore Village, Egmore-Nungambakkam Taluk, Chennai in terms of G.O.Ms.No.854 dated 30.12.2006 read with G.O.Ms.No.579 dated 03.10.2008. This petition first came before S.J.Mukhopadhaya, Acting Chief Justice and V.Dhanapalan, J., who by their order dated 12th February, 2009 restrained the respondents from carrying out further evictions. The petition, thereafter, came before a Division Bench consisting of one of us (H.L.Gokhale, C.J.) and F.M.Ibrahim Kalifulla, J. The petition was stoutly opposed by the respondents by filing a counter. The respondents referred to the judgment in W.P.No.1923 of 1998 and that it was left undisturbed by the Apex Court. It was pointed out that this very Association had filed earlier referred to W.P.No.30792 of 2008 which sought that the respondents should go beyond the cut-off date. It was also pointed out that the respondents had taken steps to shift all the eligible occupants to the colonies which have been constructed. Last but not the least, it was submitted that once a finding of fact was given, it was not open to re-open the same question once again.

12. The Division Bench, however, noted that it was a major human problem wherein some 772 families were sought to be evicted. The Court noted the submission of the petitioners counsel that they were not represented in the earlier matters (though this was disputed by the respondents). The Court, therefore, was of the view that an opportunity should be given to the members of the petitioner Sangam and their representation dated 7th February, 2009 ought to be looked into by the District Collector, Chennai and be decided once and for all. The Court permitted the petitioner Sangam to furnish additional particulars, if they wanted to furnish, within two weeks, and the District Collector was asked to decide the representation within four weeks thereafter by a speaking order. The occupants were to be protected in the meanwhile. This representation has been considered by the District Collector, Chennai. The Collector has issued a notice of enquiry to the petitioner Sangam, recorded the statement given by the President of the petitioner Sangam, and thereafter, passed an order on 26th May, 2009 to the effect that the request made by the Sangam cannot be granted. It is this order dated 26th May, 2009, which is under challenge in the present writ petition.

13. Submissions by the parties:-

(a) Mr.N.G.R.Prasad, learned counsel appearing for the petitioner association submitted that when the High Court directed the Collector to afford a hearing to the petitioner association, the Collector was expected to consider the submission of the petitioner in all seriousness. He submits that though the members of the petitioner association had furnished the documents to show their long stay on the disputed survey numbers, to claim the pattas the Collector has not considered this material at all. The statement of the President of the petitioner association was recorded on 26th May, 2009, and on the same day, the impugned order came to be passed. The Collector had in fact met the members of the District Level Committee on the previous day i.e., on 25th May, 2009 with regard to regularization, and therefore, the opportunity afforded could not be said to be a genuine opportunity. The decision was in fact pre-determined.

(b) It was then submitted by Mr.N.G.R.Prasad that whether the land bearing these survey numbers was required in public purpose was to be decided by the concerned Government Officers as per G.O.Ms.No.854 dated 30th December, 2006. In the instant case, initially writ petition bearing no. W.P.No.1923 of 2009 was filed at the instance of some other residents of another housing society. It was disputed on behalf of the petitioner association that at any point of time there was any complaint of contamination or leakage of water because of occupation by the encroachers in the concerned survey numbers.

(c) It was then submitted by Mr.N.G.R.Prasad that the pipe lines at Kilpauk had been laid during the British period. The latest pipe lines were laid for improving the water supply during 1996 and 2004. These pipe lines are very much below the ground level. Besides, the fourth respondent/Corporation of Chennai was permitted to lay tar road in this area in the year 2005. It was, therefore, submitted that the CMWSSB was not acting on its own volition, but at the behest of vested interests.

(d) Lastly, it was submitted that the facilities at Kannagi Nagar were inadequate. There was a problem of adequate drinking water and electricity. The persons concerned were well settled in Kilpauk area for the last so many years doing small sundry jobs and now they will be required to go to a place which is situate at a distance of about 20 kilometers, which will be totally inconvenient to them, since, they are all small wage earners. Even the 132 families who had shifted to Kannagi Nagar have also now returned to Kaalvaithurai.

14. The submissions of Mr.Prasad were stoutly countered by Mr.Raja Kalifulla, learned Government Pleader in the following way –

(a) Countering the first submission of Mr.Prasad, Mr.Raja Kalifulla submitted that the material placed by the petitioner association has been considered by the Collector, and the Collector also held a meeting with the concerned Government Officers on 25th May, 2009, which was necessary as per G.O.Ms.No.854 dated 30th December, 2006. Thus, it cannot be, said that there was non-application of mind on the part of the Collector in considering the relevant material. Her decision cannot be said to be pre-mediated, merely because she held a meeting with the concerned officers on 25.05.2009 and recorded the statement of the President of the petitioner association on 26.05.2009.

(b) With respect to the second submission of Mr.Prasad that action was not in public purpose, Mr.Raja Kalifulla, submitted that in the initial petition i.e., W.P.No.1923 of 2008 filed by a Private Federation of Housing Societies the submissions therein were accepted by the High Court and that the order had been left undisturbed by the Apex Court when the same was challenged. The order passed by the Collector did reflect that the pattas could not be granted on these survey numbers as there were chances of the drinking water getting polluted due to encroachments and the lands were required for future use. Once that was clearly stated by the concerned officers from different departments, there was no occasion to dispute the public purpose in shifting the encroachers. That apart, the encroachers have no right whatsoever, and yet they were being accommodated elsewhere. G.O.Ms.No.854, which provided for the grant of patta, was subject to the clause that the concerned land must not be required for public purpose.

(c) With respect to the third submission of Mr.Prasad with regard to laying of tar road in the concerned area, Mr.Raja Kalifulla submitted that it had no relevance to the petition. It has been specifically pleaded in para-23 of the counter filed by the Managing Director of CMWSSB that the black topping of a service road was permitted between the water treatment plant and its annex building shaft. Merely because encroachers had occupied the lands and used the stretch of the service road, it cannot be magnified to the status of other public roads.

(d) Countering the last submission of Mr.Prasad with regard to the facilities at Kannagi Nagar, Mr.Raja Kalifulla took us to the photographs of the buildings which have been put up at Kannagi Nagar. The photographs show that the buildings consist of ground + two floors. The tenements appear to be well constructed. There are other facilities like schools, medical facilities, open areas and so on. It was also pointed out that for shifting to the place also transport was provided and every care was taken to assist the families which were shifting. It was submitted that it was only because of the pressure of the petitioner association that some of the families, which had shifted earlier, had returned.

(e)It was in any case submitted that all throughout the plea on behalf of the encroachers were that they should be rehabilitated. The submission that they should be granted patta was not raised at any point of time, but it is being raised now. Such an after though and an improvement cannot be permitted even in a public interest matter. The submissions of the Government Pleader were adopted by the counsel appearing for the other respondents.

15. We have considered the submission of both the counsel. To deal with the same, it is firstly necessary to refer to the concerned G.O.Ms.No.854 dated 30th December, 2006, on which much emphasis has been laid by the counsel for the petitioner. Paragraph-4 of this G.O which is the relevant one in this behalf reads as follows: –

4. The Government has seriously considered the issue of regularizing the encroachments of those who have been residing for more than 10 years in houses constructed on government land based on the demand which is on the rise to grant patta to such persons through members of legislative assembly, question before the State Legislative Assembly and the public. If the aforesaid lands are not required by the Government, in order to regularize the encroachments relaxing the ban orders for granting assignments in the aforesaid lands alone, a special scheme has been announced from period from January, 2007 for six months for those encroachers on government lands orders are issued with the following conditions: –

(i)Excluding poromboke lands around temples, churches and mosques those lands under the panchayat/panchayat unions/municipalities and Corporations which are objectionable government lands which were allotted for public purposes but had not been utilized and had remained as Natham and if persons have been residing in such lands by constructing houses for more than 10 years, if they produce necessary evidence, such lands if they were not required for public purposes may be examined by the committee headed by the District Collector and consisting of District Revenue Officer, Thasildar and District Senior Officer of the relevant department may be regularized by the District Collector who should also consider the order of the Madras High Court, order of the Madurai Bench of the Madras High Court and the resolution of the local bodies based on the eligibility of such persons.

(ii)The ban orders issued with regard to assignment of house sites in Municipalities and within the jurisdiction of Chennai, Coimbatore, Madurai, Tiruchirapalli, Salem and Tirunelveli Corporations are being relaxed for this purpose of issuing house sites patta alone.

(iii)While regularizing these lands, particularly those classified as water ways poromboke, the committee headed by the District Collector should ensure that such lands are not required by the Government.

(iv)While granting house site pattas, those who are not eligible for getting free house site patta should be assessed on the value for such land as given in the guideline register. If the eligible persons have encroached upon land which is more than the permissible allotment as per the rules, such part of the excess land should be assessed based on the guideline register.

(v)The band order issued against assignment of land within 16/8 kms radius from the district head quarters of the newly formed districts namely, Dindigul, Virudunagar, Sivagangai and Thuthukudi and the conditions laid down for transferring Meychal poromboke lands from other departments are relaxed for this purpose alone.

(vi)Rest of the rules/order applicable for granting house site patta will apply for this scheme also.

(vii)This scheme will be implemented only as a one time scheme.

16. District Collectors order dated 26th May, 2009 impugned in this petition:

(a) As can be seen from the above referred to paragraph, this scheme was to regularize the encroachments of those who had been residing for more than 10 years on Government lands only as a one time scheme. Before grant of any such patta, the committee headed by the District Collector was to examine as to whether any such lands are required for public purpose. The Committee was to consist of District Revenue Officer, Tahsildar and District Senior Officers of the Revenue Department. In the instant case, the submission of the petitioner for regularization has been considered by the District Collector in accordance with this Government Order, as can be seen from the impugned order. The impugned order shows that the Collector did call the meeting of the concerned officials on 25th May, 2009. The impugned order refers to the earlier High Court orders in paragraph-1 thereof. It also refers to the order passed by the High Court in W.P.No.2825 of 2009 directing that the representation of the petitioner sangam should be considered. In paragraph-3, it refers to the fact that the petitioner sangam had submitted representation dated 29th April, 2009 enclosing their ration cards and other documents, as proof of their residence and had sought house sites and pattas as per G.O.Ms.No.854 dated 30th December, 2006.

(b) Paragraph-4, of the order, which is relevant for our purpose, reads as follows: –

4. The District level committee for regularization met on 25.05.2009 to take action as per the order dated 3.4.2009 of the Madras High Court and G.O.Ms.No.854 of the Revenue Department dated 30.12.2006 the following officials from various Departments participated in the said meeting.

Name of the Department
Designation of the Officials
C.M.W.S.S.B
Executive Director
Revenue Department
District Revenue Officer
Chennai Corporation
Special Tahsildar for Land Assets Departments.

Tamil Nadu Slum Clearance Board
Executive Engineer
Public Works Department,
Water Resources Organisation, Chennai-5
Assistant Engineer
P.W.D.Palar Basin Circle, Chennai-5
Assistant Engineer
C.M.D.A, Chennai -2.

Assistant Project Officer
T.N.H.B, Chennai 35.

Head Surveyor.

Land Survey and Records Department
Assistant Director

As the Chennai Metropolitan Water Supply and Sewerage Board to whom the lands belong and the Chennai Corporation stated that the encroachers cannot be given patta since the land which has been encroached upon by the Kaalvaithurai Kudisai Vazh Makkal Sangam may be required for future use by the Government and if the encroachments are allowed to continue, the drinking water supplied to the people of Chennai City may be polluted. The District level committee decided that orders cannot be passed to regularize the encroachments as per G.O.Ms.No.854 issued by the Revenue Department dated 30.12.2006.

Thereafter to take action on the representation dated 29.4.2009 given by the slum dwellers, notice was sent to the President of the Association to appear for the enquiry on 26.5.2009. President of the Association and other office bearers appeared for the enquiry and gave a statement that the 772 families residing in their area should be granted free house site patta as per G.O.Ms.No.854 dated 30th December, 2006 issued by the Revenue Department.

The opinion of the officials of the various departments constituting the committee for regularizing the encroachments were considered. As the Chennai Metropolitan Water Supply and Sewerage Board and Chennai Corporation have not consented for issue of patta saying the lands are required for future use and that there are chances for the drinking water supplied to Chennai City being polluted due to these encroachments, it is hereby informed that the Association request cannot be granted as per the Government Order.

Sd/-

District Collector
26.05.2009

(c) Thus, as can be seen from the above paragraph the submissions made by the petitioner association have been referred to by the Collector, and the Collector has called all the relevant officials at the time of meeting of the District Level Committee. The Collector has considered the submission of the petitioner that 772 families should be granted free house site pattas, as against the submission of CMWSSB and that of the Chennai Corporation that the encroachers should not be given patta for two reasons namely (i) that the lands may be required for future use and (ii) that the drinking water supply may get polluted. The Collector has accepted the submission of the Chennai Corporation, as well as the CMWSSB and informed the petitioner association that its request cannot be accepted as per Government Order. We would also like to mention that G.O.Ms.No.579 dated 3rd October, 2008 relied upon by the petitioner is in continuation of G.O.Ms.No.854 for the purpose of granting patta. If the requirements of G.O.Ms.No.854 are not satisfied, there is no occasion to seek any benefit under G.O.Ms.No.579 dated 3rd October, 2008.

17. A counter has also been filed by the Collector of Chennai, wherein it is stated that in the District Level Committee, the representations of the petitioner association were deeply discussed and the opinion of the officials were heard with reference to G.O.Ms.No.854 dated 30th December, 2006. If the lands are not required for any public purpose in future, then only the encroachments could be regularized as per G.O.Ms.No.854 dated 30th December, 2006. In para 7 it is specifically stated that the officials insisted that the lands under encroachments are needed for the future of CMWSSB and Corporation of Chennai, and that if the encroachments were allowed to continue it will contaminate the water supply to entire Chennai city. The Collector has also stated that an opportunity was given to the petitioner and members of the association were heard in person and the hearing was not a farce as alleged in the writ petition. The Collector has stated that after considering all facts only, the impugned order had been passed.

18. A counter has also been filed by the Managing Director of the CMWSSB. He has in terms stated that the issues raised have already been considered. The occupants, who were in possession prior to the cut-off date of 30th June, 1984, were provided with alternate accommodation in pursuance to the directions in W.P.No.1923 of 2008, which has been confirmed by the Apex Court. It is stated in paragraph-7 of his affidavit that in this particular parcel of land there are large size water supply pumping mains two of which measure about 48 and one about 60. The additional pump lines were also added as part of the expansion programme under the Jawaharlal Nehru National Urban Renewal Machine Water Project. They are main supply channels for providing water to the entire population of Chennai city. In this land, approximately 200 families have encroached and are living in the premises of the Kilpauk Water Works adjacent to the water treatment plant. They have put up temporary shelters made of plastic and other non-biodegradable substances and are causing nuisance by their acts and activities. They are using the premises as an open-air toilet without any sense of cleanliness and hygiene.

19. It is, further, stated in paragraph-10 of the counter that out of the 772 members of the petitioner association, the eligible members were identified and 134 of them have already been provided with alternate accommodation at the tenements of the Tamil Nadu Slum Clearance Board at Ookium Thoraipakkam. They are provided with electricity, protected water supply, underground sewerage, and other facilities such as school, hospital, transport, fair price shops, children play ground, etc. The encroachers have been issued with individual notices to vacate. Thereafter, they filed Writ Petition No.2825 of 2009 wherein this new plea has been raised to grant them patta which should not be permitted.

20. We have noted the submissions made by CMWSSB, which is the owner of these survey numbers. The Managing Director has clearly stated the need of removing the encroachment from the concerned parcel of lands. The Collector has stated that necessary deliberations were held with the District Level Committee members. The Collector has also stated that the petitioner association has also been provided with an opportunity and their representation has been considered. It is no doubt true that the particulars of the documents submitted by the petitioner association showing their long standing stay on the concerned survey numbers are not reflected in the impugned order. The fact, however, remains that the land belongs to CMWSSB. The CMWSSB has given reasons as to why it wants the encroachment to be removed. Mr.Prasad has submitted that these hutments are there for a long time and there have not been any complaints so far. Even so, if the CMWSSB wants to keep land adjoining the pipe lines and pumping stations intact and clean and wants the encroachments removed, the decision cannot be faulted with. As has been seen, the number of encroachments earlier was less than 100. Over the years, it has gone into 772 families as claimed by the petitioner association themselves. If this growth continues unchecked, it will be difficult for the CMWSSB to progress with any expansion work or to do any further work to the water works and pipe lines. These pipe lines and the water works supply water to the entire Chennai city. This being the position, if the CMWSSB submits that it would like the particular survey numbers to be kept clear of encroachments, the Board cannot be faulted in that nor the Collector be faulted in accepting that submission, which is fully in accordance with G.O.Ms.No.854 dated 30th December, 2006.

21. The petitioner association had been afforded an opportunity by the High Court under its order dated 3rd April, 2009 in W.P.No. 2825 of 2009, so that its representation is considered by the appropriate authority. The G.O.Ms.No.854 dated 30th December, 2006 requires the District Level Committee to examine whether the particular parcel of lands were required for any public purpose. To seek regularization of the encroachments, it had been submitted on behalf of the petitioner association that the initial action in the instant case was at the instance of the private parties, which led to the High Courts order in W.P.No.1923 of 2008. It was also submitted that the present petitioners were not parties to the earlier proceedings, though that was stoutly disputed by Mr.Raja Kalifulla, learned Government Pleader. He pointed out that one Mr.Mani, who is the office bearer of the present association was also the office bearer of the associations, which filed the earlier proceedings. He submitted that one of the earlier writ petitions, being W.P.No.30792 of 2008, was filed by the very petitioner association seeking alternate accommodation. This being the position, the petitioner could not be allowed to raise a new submission at a later point of time. As held by the Apex Court in State of Karnataka v. All India Manufacturers Organisation reported in 2006 (4) SCC 683 that if previous litigation was in respect of a right in public interest and was bona fide it would be a judgment in rem and would bar a subsequent PIL raising same issues as were raised in the previous litigation or connected issues by persons interested in such right. This would be particularly so after the judgment in W.P.No.1923 of 2008 was left undisturbed by the Apex Court.

22. Yet, in the instant case, an opportunity has been afforded to the petitioner association, under the order dated 3rd April, 2009 in W.P.No.2825 of 2009, since, none of the encroachers or their associations were party to the original Writ Petition No.1923 of 2008. It is a human problem and it should not be said that the petitioners had no opportunity to make a representation before the appropriate authority. Besides under the G.O.Ms.854 dated 30th December, 2006 the public purpose had to be ascertained before rejecting the request for pattas.

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.

24. We may note that on a somewhat similar matter, the shifting of dairies, which was necessary to prevent the possibility of contamination/pollution of drinking water carried out through pipe lines was upheld by the Apex Court in the case of Ramji Patel v. Nagrik Upbhokta Marg Darshak Manch reported in 2000(3) SCC 29. We have no reason to take a different view in the present matter.

25. Mr.Prasad, drew our attention to the observations made in paragraph-112 of the judgment of the Apex Court in the case of N.D.Jayal v.Union of India reported in 2004 (9) SCC 362, wherein in the context of the matter, the Court observed that it is, therefore, necessary that when a big multimillion dam project is undertaken to generate electricity and for providing water for irrigation and drinking, we should not leave those living by the side of the river from generations to suffering by displacement to a far-off place which would deprive them of their life and lifestyle.

26. On perusal of the relevant materials, we are satisfied in the facts of the present case that the persons, who are eligible, are provided with good alternate accommodation in a housing colony known as Kannagi Nagar, which has come up at an area, which is around 20 kilometers or so from the present place where the encroachers are staying. Those who want to shift to those premises are to be afforded with necessary transport facilities. This has been done with respect to those who have already been shifted and we have been shown photographs in that behalf. It can not be said to be displacement to a far off place depriving them of their life and lifestyle.

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.

28. For the reasons stated above, the two fold prayers in this petition cannot be entertained, and the petition is accordingly dismissed, though without any order as to costs. Consequently, connected miscellaneous petitions are also dismissed.

sm/pv

Copy to:

1. The Govt. of Tamil Nadu,
rep. by its Secretary to Government,
Department of Revenue,
Fort St.George,
Chennai 600 009.

2. The State of Tamil Nadu,
rep. by its Secretary to Government,
Department of Public Works,
Fort St.George,
Chennai 600 009.

3. The Collector,
Chennai District,
Chennai 600 001.

4. The Commissioner,
Corporation of Chennai,
Chennai 600 003.

5. The Tamil Nadu Slum Clearance Board,
rep. by its Chairman,
Chennai 600 005.

6. The Managing Director,
Chennai Metropolitan Water Supply and Sewerage Board,
Chennai 600 002

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