In the High Court of Judicature at Madras
Dated: 01/11/2004
Coram
The Honourable Mr.Justice V.KANAGARAJ
and
The Honourable Mr.Justice M.THANIKACHALAM
Writ Appeal No.105 of 2002
R.Vijayalakshmi ... Appellant
-Vs-
1. P.P.R.Hariharan
9, Red Hills Road
Villiwakkam
Madras 600 049
2. The Tahsildar
Peambur-Purasalwakkam
Sembiam
Madras 600 012
3. The District Collector
Madras District
Madras 600 005
4. The Commissioner
Corporation of Madras
Madras 600 003
5. The Inspector of Police ( L&O)
Villiwakkam Police Station
Madras 600 049
6. The Junior Engineer
Tamil Nadu Electricity Board
63, Villiwakkam
Madras 600 049. ... Respondents
Appeal under Clause 15 of the Letters Patent against the order dated
17.08.2001 made in W.P.No.5940 of 1995.
!For appellant : Mr.V.Raghavachari
^For respondents : Mr.A.Shanmugham .. For R1
Mr.V.Subbarayan
Spl.G.P. .. For R2,3 & 5
Mr.K.A.Raveendran For R4
Mr.G.Vasudevan .. For R6
:J U D G M E N T
(Judgment of the Court was delivered by
V.KANAGARAJ.,J.)
The above writ appeal has been preferred against the Order dated 17
.08.2001 made in Writ Petition No.5940 of 1995 by the learned Single Judge of
this Court thereby an application filed by the petitioner individual,
praying to issue a Writ of Mandamus, directing the respondents 1 and 2 to take
necessary action under the provisions of the Tamil Nadu Land Encroachment Act
(III of 1905) to clear the encroachments and to remove the huts over an extent
of about 3000 sq.ft. Of poromboke land stretching from East to West to an
extent of 160 feet in length situate between the Villiwakkam Red Hills Road at
Northern side and the petitioner residential house in No.9, Red Hills Road,
Villiwakkam, Madras.49 and the passage at the southern side and the learned
Single Judge on the above writ petition has been ordered directing the
respondents to remove the unauthorised encroachers within eight weeks from the
date of receipt of production of the copy of the order.
2. Aggrieved, the third party-appellant on leave by this Court, has
come forward to prefer the above appeal on grounds such as, that the learned
Single Judge should have seen that the writ petition is abuse of process of
law and the writ petitioner had mischievously failed to implead the proper and
necessary party to the proceeding; that the learned Judge should have
appreciated that the occupation of the appellant is anterior to that of the
writ petitioner and she had put up a pucca structure and had the building
assessed; that the learned Judge should have directed the first respondent to
disclose the nature of his right to the property; that the first respondent is
an interlopper and has no right to the property that he is holding; that
further, he had encroached upon the ‘eri channel’ and that the first
respondent has no right to accuse the occupants of S.No.344 as encroachers;
that the first respondent had pleaded a false case as if the public is
affected by the construction of the property by the petitioner; that the claim
of the first respondent is fraudulent and mischievous; that there exists a 40
feet road and the appellant’s property is assigned Door No.12, South Red Hills
Road, and this property had been constructed by her father and the assessment
was also made by the Corporation of Madras as early as in 1 957; that the
respondents 2 to 5 are attempting to remove the structure put up by Jayarama
Reddy, the father of the appellant and inherited by the appellant on his
death; that the respondents 2 to 6 have issued a notice on 25.09.2001 and
served on the appellant on 09.11.2001, calling upon the appellant to remove
the alleged encroachment; that the appellant has perfected her title, and
right, and the respondents 2 to 6 cannot seek to have the construction removed
particularly, themselves having assessed to the property; that the proceedings
of the respondents is against the ruling reported in 2001 All India High Court
Cases 1921; on such grounds, the appellant would ultimately pray to set aside
the order of the learned Single Judge made in Writ Petition No.5940 of 1995
dated 17.08.2001, as illegal, incumbent, irregular and without jurisdiction.
3. Today when the above writ appeal was taken up for
consideration before this Court, the learned counsel appearing on behalf of
the appellant would submit that the judgment of the Hon’ble Apex Court
delivered in Government of Andhra Pradesh v. Thummala Krishna Rao and another
(AIR 1982 SUPREME COURT, 1081) wherein the learned counsel appearing for the
appellant would point out the following passage.
“If there is a bona fide dispute regarding the title of the Government
to any property, the Government cannot take a unilateral decision in its own
favour that the property belongs to it, and on the basis of such decision take
recourse to the summary remedy provided by S.6 for evicting the person who is
in possession of the property under a bona fide claim or title.”
4. On the part of the writ petitioner before the learned
Single Judge who is the first respondent in the above writ appeal, the learned
counsel appearing on his behalf would submit that the first respondent has got
his own interest nearby the property which is under encroachment and moreover
since being a public road, the encroachments drastically affect the easy
access for men and vehicle to pass through, besides creating pollution by
causing the effluents allowed to flow nearby his genuine occupation and
therefore, he would urge this Court to confirm the order of the learned Single
Judge directing to evict the encroachers in a time bound manner.
5. The learned Special Government Pleader appearing on behalf
of the Governmental authorities who are the rest of the respondents in the
above appeal, that is respondents 2, 3 and 5, would also submit that the order
of the learned Single Judge is the warranting one in the situation of the case
without which it is very difficult to maintain a common and communal
facilities such as, the road and therefore, in full consideration of the
hindrance that is caused not only to the individuals like the petitioner, but
also to the general public, the learned Single Judge has passed this order and
would urge the Court to confirm the same dismissing the above writ appeal.
6. In consideration of the facts pleaded, having regard to
the materials placed on record and upon hearing the learned counsel appearing
for the appellant, the first respondent and the Special Government Pleader for
respondents 2, 3 and 5, and the learned counsel appearing for respondents 4
and 6, what comes to be known is that the above writ petition has been filed
seeking to evict the encroachments indicted by the writ petitioner in the
above writ petition. Though on the part of the petitioner in the above writ
petition, he would cite the representation made on his part to the authorities
particularly, to the Madras Corporation, the Assistant Engineer, Highways
concerned with the Corporation and such other authorities, since no proper
action was initiated to evict the encroachers, left with no choice has come to
the Court seeking the remedy as sought for in the writ petition.
7. Though the intention of the writ petitioner in the above
writ petition is laudable, still the petitioner has not brought-forth in
detail and with proof as to how by the said encroachments the petitioner is
affected since it is the public convenience on the main road leading from Red
Hills Road to an extent of about 3000 sq.ft. Of poromboke land stretching
from East to West to an extent of 160 feet in length situate between the
Villiwakkam Red Hills Road at Northern side and the writ petitioner’s
residential house in No.9, Red Hills Road, Villiwakkam, Madras.49 and the
passage at the southern side of the property is the subject matter, wherein
the encroachers are to be evicted and therefore needless to mention that the
petitioner’s personal properties are not at all involved so far as the
eviction sought to be carried out is concerned.
8. But the petition would very well sound a public interest
litigation and from the very wording of the petitioner and the prayer sought
to be made, it could easily be analysed that it is a sort of public interest
litigation and in such event it cannot lie before the learned Single Judge of
this Court and therefore, even regarding the maintainability, there is no
ground for the writ petition to have been entertained.
9. Secondly, though eviction is sought for to be made who are
to be evicted, it has not been made clear in the writ petition nor those who
are sought to be evicted have been impleaded as necessary parties to the writ
proceeding particularly, in view of the fact that those who are going to be
affected by the orders sought to be passed, have to be made parties so as to
give an opportunity for them to be heard since being the cardinal principles
of t he natural justice.
10. Absolutely, no one of the so-called encroachers has been
brought on record as a necessary party to the proceedings. But the order of
the learned Single Judge directing the authorities to carry out the eviction
issued are sure to affect the so-called encroachers, among whom, there may be
genuine parties and the vital interest in the property held by them or their
properties may not even come under the purview of encroachment but, still
under the pretext of the order they are also likely to be evicted and
therefore, without identifying as to who are the encroachers and without
bringing them on record, a blunt order cannot be passed in the name of
eviction of the encroachers and, therefore, this writ appeal has to be decided
on such parameters, particularly on the ground of maintainability which in the
considered opinion of this Court, the writ petition could not have been
entertained since the petitioner, strictly speaking, is not personally
affected by the encroachment sought to be evicted but may be with the hidden
desire to increase the value of his property which is some of the way from the
encroached portion, the petitioner might have come forward to file the
application and that cannot be presumed prior to the entertaining such
application pertaining to the prayer of the writ petition.
11. The wordings, the objects sought to be achieved in the
writ petition, particularly fixing the attention on the subject matter and the
eviction sought to be made would all sound very much that the subject designed
by the petitioner is one of public interest matters and if at all it could be
made to the proper forum as a public interest litigation in which event the
writ petition could not lie before a learned Single Judge.
12. Further, the encroachers who are sought to be evicted are
not identified nor made necessary parties to the proceedings and therefore, no
blunt orders could be made particularly regarding the eviction of the certain
permanent structures since the innocents also are susceptible to suffer and
therefore, it is only desirable on the part of the petitioner to name out the
encroachers, identifying them and their properties which could be considered
having constructed in the encroached area and making them as respondents to
the writ petition. Thus making out a writ petition in the full form and in
the required order and therefore, on all these reasons, this Court is not in a
position either to accept the maintainability of the writ petition before the
learned Single Judge or even to confirm the order passed therein, directing
the authorities to evict the encroachers within eight weeks as it has been
ordered by the learned Single Judge and therefore, this Court is of the firm
view that the above writ appeal has to be allowed but at the same time with
liberty to the writ petitioner, the first respondent herein to agitate his
rights, if any, or in the manner of a public interest litigation fulfilling
the requirements therein and resorting to the proper forum and hence the
following Judgment:
In result,
(i) for all the reasons assigned, the above writ appeal
succeeds and the same is allowed;
(ii) the Order dated 17.08.2001 made in W.P.No.5940 of 1995 by
the learned Single Judge of this Court is set aside;
(iii) However, the writ petitioner/first respondent will be at
liberty to agitate his right in the proper manner and before the proper forum
and in such a way as it has been directed supra.
No costs.
Index : Yes
Internet: Yes
kvsg
To
1) The Tahsildar
Peambur-Purasalwakkam
Sembiam
Madras 600 012
2) The District Collector
Madras District
Madras 600 005
3) The Commissioner,
Corporation of Madras
Madras 600 003
4) The Inspector of Police ( L&O)
Villiwakkam Police Station
Madras 600 049.
5) The Junior Engineer
Tamil Nadu Electricity Board
63, Villiwakkam, Madras 600 049.