Friday, July 30, 2021

Rajasthan High Court in Hanumana Ram & Anr. vs. District Collector, Churu [07.04.2021]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR 

D.B. Spl. Appl. Writ No. 808/2018 
1. Hanumana Ram S/o Shri Mukna Ram, By Caste Jat, Resident Of Village Somasi Tehsil And District Churu. 
2. Rajesh Kumar S/o Shri Bhagwana Ram, By Caste Jat, Resident Of Village Somasi Tehsil And District Churu. 
 ----Appellants 
Versus 
1. The District Collector, Churu. 
2. Block Development Officer, Panchayat Samiti Churu. 
3. Gram Panchayat, Jhariya Through Its Sarpanch, Panchayat Samiti Churu, District Churu. 
4. Surendra Kumar S/o Ram Kumar, By Caste Meghwal, Resident Of Somasi, Tehsil And District Churu. 
 ----Respondents 

Connected With D.B. Spl. Appl. Writ No. 752/2018 
1. Hanumana Ram S/o Shri Mukna Ram, By Caste Jat, Resident Of Village Somasi Tehsil And District Churu. 
2. Rajesh Kumar S/o Shri Bhagwana Ram, By Caste Jat, Resident Of Village Somasi Tehsil And District Churu. 
----Appellants 
Versus 
1. The District Collector, Churu.
2. Block Development Officer, Panchayat Samiti Churu. 
3. Gram Panchayat, Jhariya Through Its Sarpanch, Panchayat Samiti Churu District Churu. 
4. Ashok Kumar S/o Shri Sanwata Ram, By Caste Meghwal, Resident Of Village Somasi, Tehsil And District Churu.
 ----Respondents 

D.B. Spl. Appl. Writ No. 753/2018 
1. Hanumana Ram S/o Shri Mukna Ram, By Caste Jat, Resident Of Village Somasi Tehsil And District Churu. 
2. Rajesh Kumar S/o Shri Bhagwana Ram, By Caste Jat, Resident Of Village Somasi Tehsil And District Churu. 
----Appellants 
Versus 
1. The District Collector, Churu. 
2. Block Development Officer, Panchayat Samiti Churu. 
3. Gram Panchayat, Jhariya Through Its Sarpanch, Panchayat Samiti Churu, District Churu. 
4. Sanwat Ram S/o Lekhu Ram, By Caste Meghwal, Resident Of Somasi, Tehsil And District Churu. 
----Respondents 

D.B. Spl. Appl. Writ No. 780/2018 
1. Hanumana Ram S/o Shri Mukna Ram, By Caste Jat, Resident Of Village Somasi Tehsil And District Churu. 
2. Rajesh Kumar S/o Shri Bhagwana Ram, By Caste Jat, Resident Of Village Somasi Tehsil And District Churu. 
----Appellants 
Versus 
1. The District Collector, Churu. 
2. Block Development Officer, Panchayat Samiti Churu 
3. Gram Panchayat, Jhariya Through Its Sarpanch, Panchayat Samiti Churu District Churu. 
4. Sanjay Kumar S/o Ram Kumar, By Caste Meghwal, Resident Of Somasi, Tehsil And District Churu.
----Respondents 

D.B. Spl. Appl. Writ No. 781/2018 
1. Hanumana Ram S/o Shri Mukna Ram, By Caste Jat, Resident Of Village Somasi Tehsil And District Churu. 
2. Rajesh Kumar S/o Shri Bhagwana Ram, By Caste Jat, Resident Of Village Somasi Tehsil And District Churu. 
 ----Appellants 
 Versus 
1. The District Collector, Churu. 
2. Block Development Officer, Panchayat Samiti Churu. 
3. Gram Panchayat, Jhariya Through Its Sarpanch, Panchayat Samiti Churu District Churu. 
4. Ajeet Kumar S/o Sanwanta Ram, By Caste Meghwal, Resident Of Somasi, Tehsil And District Churu. 
----Respondents 

For Appellant(s) : Mr. R.S.Choudhary with Mr. S.S.Gour 
For Respondent(s) : Mr. Sunil Beniwal, AAG with Mr. Utkarsh Singh Mr.K.R.Saharan for Gram Panchayat, Jhariya Mr.R.P.Singaria, for private respondents. 

HON'BLE MR. JUSTICE SANGEET LODHA 
HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA 

Order 7th April, 2021 

PER HON'BLE MR.SANGEET LODHA,J.

1. These intra-Court appeals are directed against common order dated 20.12.17 passed by the learned Single Judge of this Court, whereby the writ petitions preferred by the appellants herein, assailing the order dated 11.10.17 passed by the District Collector, Churu under Section 97 of the Rajasthan Panchayati Raj Act, 1994 (for short "the Act of 1994"), in Revision Petition Nos. 3/2017, 4/2017, 5/2017, 6/2017 & 7/2017, have been dismissed.

2. The appellants challenged the legality of the pattas issued in favour of the private respondents herein by the Gram Panchayat, Jhariya of residential land inter alia on the ground that the respondents already having the residential plots were not entitled for allotment of the land under the provisions of Rajasthan Panchayati Raj Rules, 1996 (for short "Rules of 1996"). That apart, it was contended that the land in question forms part of the land of johar paitan ad measuring 114 bighas 18 biswas, comprising khasra no.95, which on account of prohibition contained in Section 16 of the Rajasthan Tenancy Act, 1955 (for short 'the Act of 1955') could not have been divested for expansion of abadi.

3. The revision petitions were dismissed by the revisional authority vide order dated 11.10.17 observing that the material on record is not sufficient to arrive at the conclusion that the respondents were already having the residential land in their possession and therefore, they were not entitled to further allotment. Regarding the land being part of the land categorised in the revenue record as johar paitan, the revisional authority opined that the land measuring 3 bighas & 10 biswas forming part of the land johar paitan, has already been divested for expansion of abadi by the State Government vide order dated 28.9.02 and thus, the pattas of the land already entered in the revenue record as abadi land, issued by the Gram Panchayat, cannot be cancelled. The revisional authority further observed that it would not be justified to cancel the pattas issued in the year 2004 after a lapse of about 12 years.

4. The learned Single Judge has dismissed the writ petitions preferred by the appellants, observing that the appellants having failed to prove the fact that at the time of issuance of the pattas in question, some other residential plots had already been allotted to the private respondents, the revisional authority has rightly refused to cancel the pattas. The learned Single Judge observed that the District Collector, Churu vide order dated 13.11.02 had already converted 3 bighas & 10 biswas of land of khasra no.95 from johar paitan to abadi after approval of the State Government and therefore, the contention raised by the appellants that pattas of land forming part of johad paitan were issued by the District Collector, Churu, is without any merit.

5. Learned counsel appearing for the appellants contended that the learned Single Judge has not examined the matter in correct perspective. The pattas of the land in question have been issued by the Gram Panchayat in favour of the members of one family, who were already in possession of residential plots and as a matter of fact, in the garb of the allotment made, they have encroached upon entire 3 bighas & 10 biswas land set apart for expansion of abadi by the District Collector, Churu. Learned counsel submitted that from bare perusal of the material on record, it is apparent that the plots have been allotted to the respondent no.4-Sanwata Ram and his other family members whereas, while setting apart the land for abadi purposes vide order dated 13.11.02, a specific condition was imposed that the plot of the size more than 500 sq. yard, shall not be allotted to one family, the families which are already having residential plots shall not be allotted the plots and preference shall be given to the families of SC/ST. Learned counsel submitted that it is settled law that the land forming part of johar paitan cannot be divested for expansion of abadi and thus, keeping in view the directions issued by this Court in the matters of Abdul Rahman vs. State of Rajasthan: (2004) 4 WLC (Raj.) 435 and order dated 12.1.17 passed in Gulab Kothari vs. State of Rajasthan & Ors.: D.B.C.Writ Petition No.1554/2004, the land in question deserves to be restored to its original use i.e. johar paitan.

6. On the other hand, Mr. Sunil Beniwal, learned AAG submitted that the contention sought to be raised by the appellants that the family members of respondent-Sanwata Ram have been allotted the plots of the area more than 500 sq. yard is factually incorrect. Learned AAG submitted that 3 pattas were issued; one in favour of Sanwata Ram and two in favour of his major sons of the land measuring 150 sq. yard each, which comes to total 450 sq. yard. Similarly, two other persons were allotted land measuring 150 sq. yard each. It is submitted that all the allotments are made in favour of the persons belonging to SC category and thus, the contention sought to be raised by the appellants regarding violation of the conditions of the order dated 13.11.02, is devoid of any merit. Learned AAG submitted that while allotting the land already divested for residential use, the procedure prescribed under the Rules of 1996 has been duly followed and thus, the revisional authority has committed no error in dismissing the revision petitions. Learned AAG submitted that if the respondents have encroached upon the land , the same shall be dealt with by the competent authority in accordance with law but on that account, the allotment made in favour of the private respondents cannot be said to be illegal.

7. Mr. R.P.Singaria, learned counsel appearing for the private respondents submitted that the plots were allotted in favour of the private respondents in accordance with the procedure laid down under the Rules of 1996. Learned counsel submitted that neither the conditions of the order setting apart the land for abadi purposes nor the provisions of the Rules of 1996 have been violated. Drawing the attention of the Court to the order dated 13.11.02 issued by the District Collector, setting apart the land for abadi purposes, learned counsel submitted that the private respondents had applied for and allotted the plots in abadi area and thus, they cannot be penalized for no fault on their part.

8. We have considered the rival submissions and perused the material on record.

9. Section 16 of the Act of 1955, specifies the lands in respect whereof no khatedari rights shall accrue, which inter alia include the land used for casual and occasional cultivation in the bed of a river or tank, land covered by water and used for the purpose of growing Singhara or other like produce, land acquired or held for a public purpose or a work of public utility and land which has been set apart or is, in the opinion of the Collector necessary for the flow of water therein into any reservoir or tank of drinking water for a village or for the surrounding villages. Thus, the land falling within the perimeter of tank or pond of the village, its boundary or the catchment area being the land of public utility, is not available for allotment for the purpose of expansion of abadi or any other use.

10. In Kanti Lal Vs. State of Rajasthan & Ors.: D.B.Civil Writ Petition No.7509/2016, decided on 13.11.18, this Court while considering the issue regarding protection of the land forming part of catchment area in terms of provisions of Section 16 of the Act of 1955, observed:

"16.Under the law if the tank, nadi or talab is required to be protected, then obviously, its boundary and catchment area are also required to be protected and thus, nothing turns on the question that according to the private respondents earlier in the revenue record the land alleged to have been regularised in their favour, comprising Khasra No.407 was shown in the revenue record as 'Talab Ki Pal' and not 'gair mumkin nadi' as such. As a matter of fact in the order dated 31.7.85 passed by the Tehsildar, Aburoad, regualrising possession of father of the private respondents over the land measuring 755 sq. yard comprising Khasra No.529, it is specifically observed that land sought to be regularised forms part of 'gair mumkin nadi'. (emphasis added)

11. In Abdul Rahman's case (supra), a Bench of this Court has already issued directions to the State Government to remove encroachment in the catchment area of the water bodies and in 'Suo Moto Vs. State of Rajasthan' (supra), decided by Jaipur Bench of this Court vide order dated 29.5.12, specific directions have been issued restraining the allotment of the land falling in catchment areas of water bodies like Johar, Nala, Tank, River, Pond etc. and it is further directed that the appropriate action shall be taken for cancellation of the allotment made in defiance of Section 16 of the Act of 1955.

12. In Jagpal Singh & Ors. vs. State of Punjab & Ors.: 2011 ACR SCW 990, while declining to interfere with the order of the High Court, dismissing the writ petition preferred against the order of the Commissioner, setting aside the order of the Collector, whereby the directions were issued to the Gram Panchayat to transfer the land forming part of the pond to the occupants thereof, the Hon'ble Supreme Court issued directions to all the State Governments in the country in the following terms :
"22. Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthoized occupants of Gram Sabha /Gram Panchayat/ Poramboke/ Shmlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal act or for regularizing the illegal possession. Regularization should only be permitted in exceptional cases e.g. where lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land."

13. In Gulab Kothari's case (supra), this Court has issued directions to the State Authorities to take effective steps for conservation and preservation of natural resources i.e. rivers, other water bodies and catchment area. Further, the State Authorities have been directed to undertake a drive to remove all encroachments made over the natural resources operating thereon and restore such natural resources by taking appropriate action.

14. Thus, in view of the position of law settled as above and directions already issued by this Court time and again, the land forming part of johar paitan, cannot be permitted to be divested to any other use.

15. Admittedly, in the instant case, the land ad measuring 3 bighas 10 biswas comprising khasra no.95 forms part of the land of the johar paitan (catchment area of the pond), a land of public use and thus, the same could not have been set apart for expansion of abadi. In this view of the matter, the order dated 13.11.02 passed by the District Collector setting apart the land of johar paitan for the purpose of expansion of abadi is ex-facie illegal and void and consequently, the pattas of the plot forming part of the said land, issued by the Gram Panchayat in favour of the private respondents were not sustainable in the eyes of law.

16. A perusal of the order passed by the revisional authority reveals that the contention raised on behalf of the appellants regarding the land of johar paitan being not available for allotment for abadi, has been rejected merely on the ground that the land already stands converted for abadi purposes by the State Government on the recommendation made by the Gram Panchayat. The position of law already settled by this Court regarding the non-availability of land of johar paitan for diversion to any other use, has altogether been ignored by the District Collector.

17. It is pertinent to note that it was specifically contended by the appellants that the respondents already having the residential plots, were not entitled for further allotment in defiance of the conditions of the order dated 13.11.02, however, the contention has been rejected by the revisional authority by recording the conclusion without any basis that the land shown in patta issued adjoining to the plot allotted may be the land in unauthorized occupation of the private respondents herein. It is not understandable as to why the Gram Panchayat will show the land in unauthorized occupation of any person as the land belonging to the said person in a patta of yet another plot issued under the Rules of 1996 and thus, the assumption of the revisional authority that the neighbourhood land shown in the pattas may be the land unauthorizedly occupied by the private respondents herein, is absolutely unjustified. Moreover, under Section 97 of the Act of 1994, the revisional authority is even empowered to examine the legality of the proceedings of Panchayat Raj Institution suo moto and thus, nothing prevented the revisional authority to requisition the record of the Panchayat to verify the correct factual position.

18. In view of the discussion above, the order impugned passed by the learned Single Judge as also the order impugned in the writ petition dated 11.10.17 passed by the revisional authority, deserves to be set aside and the revision petitions preferred by the appellants deserve to be allowed.

19. In the result, the intra-Court appeals are allowed. The order impugned passed by the learned Single Judge dated 20.12.17 is set aside. The writ petitions preferred by the appellants are allowed. The order dated 11.10.17 passed by the revisional authority is set aside. The order dated 13.11.02 issued by the District Collector, Churu shall be treated to be non est. The pattas issued in favour of the private respondents of the land forming part of johar paitan shall stand set aside and the said land shall stand restored to its original use. The encroachments made on the land of johar paitan comprising khasra no.95, if any, shall be removed expeditiously, in any case, within a period of three months from the date of this order. No order as to costs. 


(DEVENDRA KACHHAWAHA),J                                                     (SANGEET LODHA),J

Allahabad High Court in Sri Chandra vs. State of UP & Ors. [19.03.2021]

HIGH COURT OF JUDICATURE AT ALLAHABAD 
Court No. - 10 

Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 530 of 2021 

Petitioner :- Sri Chandra 
Respondent :- State Of U.P. And 12 Others 

Counsel for Petitioner :- Vishesh Kumar 
Counsel for Respondent :- C.S.C.,Azad Rai 

Hon'ble Prakash Padia,J.

Heard learned counsel for petitioner, learned Standing Counsel for respondent Nos.1 to 3 and Mr. Azad Rai, counsel for the respondent no.5.

The petitioner has preferred the present Public Interest Litigation inter-alia with the following prayers:-

"i) to issue a writ, order or direction in the nature of mandamus commanding the respondent no.2 and 3 to remove the illegal encroachment made by the private respondent no.7 to 13 over the land reserved for public utility purpose as manure pit (khadd-ka-gadda) situated at gata no.1382M having total area of 2 biswa in village Saiyara Meethepur, Tehsil Sirathu, District Kaushambi

ii) to issue a writ, order or direction in the nature of mandamus commanding the respondents no. 2 to 3 to demarcate the land reserved for public utility purpose as manure pit (khadda-ka-gadda) situated at gata no.1382M having total area of 2 biswa in village Saiyara Meethepur, Tehsil Sirathu, District Kaushambi."

It is argued by counsel for the petitioner that the illegal constructions were made over the property in dispute by the private respondents in connivance with the respondents no. 4, 5 and 6 namely Ansar Ahmad (Kanungoo), Katkey Devi(Pradhan) and Manoj Gupta (Halka Lekhpal).

In view of the same, a prayer has been made to direct the Collector, Kaushambi to initiate proceedings in the matter by comprising committee of some other officers except respondents no.4 to 6.

In view of the same, in case petitioner is aggrieved in this regard, he is permitted to raise all the submissions before the respondent no.2/Collector, District Kaushambi along-with certified copy of this order within two weeks. If such an application is filed, the respondent no.2 is directed to look into the matter personally and initiate the proceedings as per law laid down by the Supreme Court in the case of Jagpal Singh and others Vs. State of Punjab and others reported in AIR 2011 SC 1132 as well as in terms of the circular issued on 4th October, 2012 by the State Government with the help of independent local authorities.

With the aforesaid directions, the present Public Interest Litigation is disposed of.

Order Date :- 19.3.2021

Thursday, July 29, 2021

Punjab & Haryana High Court in Dhan Singh vs. State of Haryana & Ors. [09.04.2021]

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 
CWP No. 8143 of 2021 

Date of decision: 09.04.2021 

Dhan Singh                                                                                                          ......Petitioner 
V/s. 
State of Haryana and others                                                                           .......Respondents 

CORAM: - HON'BLE MR. JUSTICE RAJAN GUPTA 
                   HON'BLE MR. JUSTICE JASGURPREET SINGH PURI 

Present: Mr. Rahul Deswal, Advocate,for the petitioner. *** 

(Through Video Conferencing) 

Jasgurpreet Singh Puri , J.

The present writ petition has been filed under Article 226/227 of the Constitution of India with a prayer for issuance of a writ in the nature of certiorari for quashing the impugned order dated 28.01.2021 (Annexure P-7) passed by the learned Commissioner, Hisar Division, Hisar, order dated 10.03.2017 (Annexure P-5) passed by the learned Collector, Sirsa and order dated 31.03.2015 (Annexure P-3) passed by the learned AC Ist Grade, Ellenabad, whereby eviction order has been passed against the petitioner along with penalty of `5,000/- per year per acre from the date of the institution of the suit.

The learned counsel for the petitioner has submitted that the petitioner is in possession of the property for more than 40 years, interlock streets have been constructed in the disputed houses and electricity and water connections have also been given. He has submitted that he is living in the house and the Panchayat has also received the Chulha Tax from the 1 of 4 petitioner and, therefore, he cannot be evicted from the house. He further submitted that the learned authorities below have passed the orders erroneously as the petitioner could not have been evicted on the ground of his long possession of the house and that he was not in unauthorised possession of the land in question. He further submitted that nobody had raised any objection when the house was being constructed and there are other houses also being constructed on the land. He further submitted that in view of his long possession the Panchayat land can be sold to the petitioner by taking some price of the said land and, therefore his eviction is illegal.

We have heard the learned counsel for the petitioner. An application under Section 7(1)(2) of the Punjab Village Common Lands Regulation Act, 1961 was filed by the Gram Panchayat, Dhudianwali, Tehsil Rania, District Sirsa for evicting the petitioner from the land measuring Khasra No.270 area 1 Kanal 2 Marla on the ground that the land belongs to Gram Panchayat and it was reserved for the toilets and, therefore, the petitioner was liable to be evicted from the land. The Sub Divisional Officer exercising the powers of Assistant Collector Ist Grade, Ellenabad came to the conclusion and recorded finding of fact that as per the revenue record, the owner of the property in dispute is Gram Panchayat and the same is reserved for toilets. As per the demarcation report, the petitioner was having illegal possession over the same. The Assistant Collector also relied upon the judgment passed by the Hon'ble Supreme Court to the effect that the Panchayat cannot sell the panchayat land to the private person after taking money and, therefore, the order of eviction was passed. The petitioner filed appeal before the District Collector, Sirsa who 2 of 4 also recorded the finding that as per the demarcation report dated 21.08.2011, the Gram Panchayat is owner of the property in dispute and that the petitioner is having illegal possession of the property. The property in dispute is beyond Lal Lakir and as per the Jamabandi for the year 2011-12, the property in dispute is reserved for toilets and in this way, the property in dispute is for public purposes and, therefore, dismissed the appeal of the petitioner.

The petitioner thereafter filed the revision petition before the Commissioner, Hisar Division, Hisar and the same was also dismissed The Hon'ble Supreme Court in 'Jagpal Singh V/s. State of Punjab' [2011(11) SCC 396] while dealing with the encroachment of panchayat land which was reserved for pond had issued directions to all the State Governments in the country that they shall prepare schemes for eviction of the illegal/unauthorised occupants of Gram Sabha/Gram Panchayat/Poramboke/Shamlat land and these must be restored to Gram Sabha/Gram Panchayat for the common use of villagers of the village and for that purpose the Chief Secretaries of all State Governments/Union Territories in India were directed to do the needful, taking the help of other senior officers of the Governments. Furthermore, long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning the illegal act or for regularizing the illegal possession and regularization should only be permitted in exceptional cases e.g. where lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already 3 of 4 a school, dispensary or other public utility on the land.

In the present case, the land belongs to Panchayat and has been reserved for toilets which is a common purpose. There is nothing on record to show as to how the petitioner came into possession of the said land and why the Gram Panchayat had not objected at the time of the construction of the house. Mere long possession of a Panchayat land cannot vest a right in the petitioner to continue the possession. Furthermore, mere long possession of the land belonging to Gram Panchayat cannot enable the petitioner to seek regularisation as the same can only be permitted for very limited purpose as observed by the Hon'ble Supreme Court in Jagpal Singh's case (supra).

There is nothing on record to show that the petitioner came into possession under some decision of the Government or any policy. All the authorities below have recorded a finding of fact on the basis of demarcation report that the land in dispute is owned by Gram Panchayat of the village and the land was reserved for toilets.

This Court does not find any infirmity in the orders passed by the authorities below and therefore, the present case is not a fit case to invoke jurisdiction under Article 226 of the Constitution of India.

Consequently, the present petition is hereby dismissed. 

                    (RAJAN GUPTA)                 (JASGURPREET SINGH PURI) 
                         JUDGE                                                  JUDGE

Uttarakhand High Court in Mahmood & Ors. vs. State of Uttarakhand & Ors. [10.06.2021]

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL 
ON THE 10TH DAY OF JUNE, 2021 

BEFORE: HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI 

Writ Petition (M/S) No. 1018 of 2021 

BETWEEN: Mahmood & another ...Petitioners 
(Mr. T.A. Khan, Senior Advocate) 
AND: State of Uttarakhand & others ...Respondents 
(Mr. J.S. Bisht, learned Standing Counsel for the State of Uttarakhand and Dr. K.H. Gupta, learned counsel for respondent no. 4.) 

JUDGMENT

1. By means of this writ petition, petitioners have sought following reliefs:-
(i) To issue a writ, order or direction in the nature of certiorari quashing the order dated 17.04.2021, passed by Sub Divisional Officer (Dy. Collector), Bazpur, District Udham Singh Nagar (Annexure No. 2 to the writ petition)
(ii) To issue a writ, order or direction in the nature of certiorari quashing the report of Advocate Commissioner dated 17.04.2021 (Annexure No. 15 to the writ petition).
(iii) To issue a writ, order or direction in the nature of mandamus directing the respondent (Dy. Collector) to get measure the land belonging to category IV in possession of the petitioners measuring about 950 sqmtr leaving out 75 feet from the front of National Highway and leaving out the land of Nala (measuring the width of Nala as 20 feet (6 meter) in the back side of the land in possession of the petitioners and the respondents may restrained not to cause hinderance in the possession of the petitioners over the land measuring about 950 sqmtr having the meets and bound of the measurements as mentioned in the site plan which is annexed as Annexure no. 11 to the petition.

2. It transpires that one Mohammad Akram had filed WPPIL No. 59 of 2016 for removal of encroachment over plot nos. 803, 827/1, 827/4 and 463 of Village Sultanpur, Pargana Bazpur, District Udham Singh Nagar, which was recorded as pond land (water body) in the Revenue Record.

3. The said writ petition was disposed of by Division Bench of this Court vide order dated 04.09.2018. Subsequently, on a recall application moved by the affected persons, the final order dated 04.09.2018 was recalled and certain directions were issued to the State Government vide order dated 03.12.2018. Operative portion of the order dated 03.2.2018 is reproduced below:-

17. As the petitioner himself sought a mandamus only for a directions to be issued, in terms of the law declared by the Supreme Court in Jagpal Singh & Others (supra), we are of the view that the Division Bench was not justified in issuing directions, which not only run contrary to what the Supreme Court has held, but also go far beyond the relief sought for in the writ petition itself. We consider it appropriate, therefore, to recall the order passed in this writ petition dated 04.09.2018, and instead direct the Government of Uttarakhand to prepare a scheme for eviction of illegal/unauthorized occupants of municipal lands in the State, which are covered by water bodies such as lakes, ponds, streams, water- courses etc. As directed by the Supreme Court the scheme shall provide, among others, for a showcause notice to be given to the encroachers and to be provided an opportunity of a brief hearing. The State Government shall also take note of the exceptions carved out by the Supreme Court in the aforesaid judgment regarding lease granted under a Government Notification to landless labourers or members of the Scheduled Castes/Scheduled Tribes or areas where there exists a school, dispensary or other public utility on the land.
18. The scheme shall be prepared at the earliest and, in any event, not later than six months from the date of receipt of a certified copy of this order; and action shall be taken forthwith, after such scheme is formulated, to evict encroachers or unauthorized occupants from such land in accordance with the said scheme. Needless to state that, on such a scheme being prepared and notices being issued to those in possession of the land in terms of the scheme so formulated, it is open to persons in possession of such land, to whom the notices are given, to put forth all such defenses as are available to them in law including that the subject land, over which they are in possession, has not been a water body after the 1950 Act came into force.

4. Thereafter, Sub-Divisional Magistrate, Bazpur passed an order on 11.02.2021, whereby petitioners were asked to remove their encroachment over water body within thirty days and it was further provided in the said order that on the failure of the petitioners to remove their encroachment, the same shall be removed at the cost and expense of the petitioners.

5. Against the order dated 11.02.2021 passed by Sub-Divisional Magistrate, petitioners filed WPMS No. 555 of 2021. The said writ petition was disposed of vide order dated 09.03.2021. Relevant extract of the said order is reproduced below:-

"6. The dispute, which petitioners are trying to raise in the present writ petition involves disputed question of facts, namely, whether petitioners encroached upon land belonging to water-body or not; and further whether the land, which is presently under occupation of the petitioners, is in excess to the land for which they have applied for regularisation. For adjudicating such disputed question of facts, oral evidence would be needed besides report of the Survey Commissioner, therefore, this Court is not inclined to entertain this writ petition.
7. Having regard to the facts and circumstances of the case, the writ petition is disposed of with a direction to the Sub-Divisional Magistrate, Bajpur, District Udham Singh Nagar to get the land under occupation of the petitioners measured by a Survey Commissioner, within three weeks from the date of receipt of certified copy of this order. If, after the said measurement, it is found that petitioners have encroached upon the land belonging to the water-body or if it is found that petitioners are occupying more land than the land for which they have applied for regularisation, then petitioners encroachment upon such excess land shall be got removed, even by using force, if need be.
8. It is further made clear that petitioners shall be informed about the date and time of measurement of their land and it shall be open to the petitioners to remain present at the time when measurement of the land in question to be done by the Survey Commissioner. For a period of four weeks status quo, as on today, shall be maintained."

6. Pursuant to the direction issued in WPMS No. 555 of 2021, Sub-Divisional Magistrate, Bazpur vide order dated 01.04.2021 appointed one Mr. Sohan Lal Goyal - Advocate, as Survey Commissioner to measure the land of the petitioners. Survey Commissioner measured the land in the presence of petitioners and Revenue Officers on 12.04.2021 and submitted his report on 17.04.2021. The said report has been challenged in the present writ petition.

7. Mr. T.A. Khan, learned Senior Counsel appearing for the petitioners submits that the report submitted by the Advocate Commissioner is erroneous, therefore, deserves to be set aside.

8. Per contra, learned Standing Counsel appearing for the State submits that the Survey Commissioner had measured the land in question in the presence of the petitioners, after taking fixed points. Learned Standing Counsel further submits that the question whether the report of the Survey Commissioner is correct or not cannot be adjudicated in writ proceedings under Article 226 of the Constitution of India, as it is basically a question of fact.

9. This Court finds substance in the contention raised by learned Standing Counsel for the State. Whether petitioners have encroached upon a water body land or not is basically a question of fact. For resolving the dispute, this Court directed measurement of the land in question by a Survey Commissioner. The Survey Commissioner has submitted a report, according to which, petitioners have encroached upon water body land.

10. Learned Senior Counsel appearing for the petitioners now contends that the report submitted by the Survey Commissioner is erroneous and needs to be set aside with a direction to the authorities to re-measure the land in question in the presence of the petitioners.

11. In the humble opinion of this Court, the issue raised before this Court cannot be properly adjudicated in writ proceedings. Whether the report submitted by Survey Commissioner is correct or not cannot be decided in a writ petition. The prayer made by learned counsel for the petitioners for re- measurement of land also cannot be accepted because then it will be an unending exercise.

12. In such view of the matter, this Court declines to entertain this writ petition. Accordingly, writ petition fails and is hereby dismissed.

Madhya Pradesh High Court in Aam Janta Mouja Mahidal Kala vs State of Madhya Pradesh [20.07.2021]

The High Court Of Madhya Pradesh 
WP-12535-2021 

(AAM JANTA MOUJA MAHIDAL KALA 
Vs 
THE STATE OF MADHYA PRADESH AND OTHERS) 

Jabalpur, Dated : 20-07-2021 

Heard through Video Conferencing. 

Shri Jayant Prakash Patel, learned counsel for the petitioner. 
Shri Ashish Anand Barnard, learned Deputy Advocate General for the respondents/State.


This writ petition in the form of Public Interest Litigation has been filed by Aam Janta Mouja Mahidal Kala through its Secretary- Baijnath Sen alleging encroachment by respondent Nos.5 to 10 on the land of public road. It is contended that despite order passed by the Tehsildar, Circle Chhiboura, Tehsil Rampur Baghelan, District Satna for removal of the encroachment, so far no action has been taken by the government authorities to free the land bearing Khasra No.1030, area 0.308 hectares in part 0.03 decimal from encroachment by the private respondents. It is further contended that the Tehsildar by order dated 25.01.2020 has not only directed for removal of the encroachment, but also imposed the fine of Rs.5000/- on each of the private respondents who have constructed certain Pakka structures on the land of public way and thereby reducing the width of the road which has made it difficult even for two wheelers to pass through the same.

This Court in W.P.No.7865/2021 (Gram Panchayat Dhooma Vs. State of Madhya Pradesh and others, order dated 09.06.2021) considering that large number of petitions of similar nature, with allegations of encroachment over the 'nistar land'/'charnoi'/'gocher'/'pasture' land/land of 'pond', 'talab'/'river'/'river bed'/'public way'/'shamshan'/'kabristan' etc. passed the following order :-

"5. This Court is inundated with large number of writ petitions, styled as public interest litigation, from almost all the Districts of the State, with allegations of encroachment over the 'nistar land' / 'charnoi' / 'gocher' / 'pasture land' / land of 'pond', 'talab'/'river'/'river bed'/'public way'/'shamshan'/'kabristan' etc. In all such petitions, common allegation is that despite repeated complaints / representations to the concerned revenue officers, no steps are taken by them to remove the encroachment.

This results in number of writ petitions being filed by the complainants / representationists before this Court. This Court has been passing orders in such matters requiring the respective District Collectors and other revenue authorities to examine the factual content of the allegations and take steps to remove the encroachments so as to secure such land.

6. In order therefore to provide a State wide solution to this ever persisting problem, we deem it appropriate to direct the Chief Secretary of the State to devise a permanent mechanism, which should be functional in every district of the State where the concerned District Collector should be required to periodically notify for the information of the general public to lodge the complaints / representations with regard to such encroachments with a specially designated Public Land Protection Cell (for short 'PLPC') for rural areas. The PLPC should be headed by District Collector and function under his direction and supervision with an officer of the rank of Tehsildar as its Member Secretary and such other Officers as its Members as the Government may deem fit to nominate. The PLPC shall get such complaints / representations enquired into by deputing concerned Sub Divisional Officer / Tehsildar / Naib Tehsildar so as to verify whether or not such encroachments have actually taken place on public land. If the allegations are found to be substantiated, appropriate steps in accordance with law be immediately taken for removal of the encroachments and appropriate penal action be also taken against the trespassers. The complaints / representations received in the PLPC should be decided by passing speaking order, informing the respective complainant / representationist about the action taken. This would obviate the necessity of such complainants / representationists approaching this Court directly by way of public interest litigation. If this permanent mechanism is put in place, this Court would not be required to directly entertain such public interest litigation and would do so only in the event of inaction on the part of the concerned PLPC.

7. The PLPC aforementioned shall also keep in view the guidelines issued by the Supreme Court in Jagpal Singh & Others Vs. State of Punjab & Others, (2011) 11 SCC 396 wherein all the State Governments of the country have been directed to prepare scheme for eviction of illegal / unauthorised occupants of the Gram Sabha / Gram Panchayat / Poramboke / Shamlat land which should then be restored to the Gram Sabha / Gram Panchayat for the common use of residents of the village. The said scheme should provide for the speedy eviction of such illegal occupants, after giving them a show cause notice and a brief hearing. The Supreme Court further held therein that long duration of the illegal encroachment / occupation of land or huge expenditure in making construction thereon or political connections of trespassers are no justification for regularising such illegal occupation. Regularisation should be permitted only in exceptional cases where lease has been granted under some government notification e.g. to landless labourers or members of Scheduled Castes / Scheduled Tribes or where there is already a school, hospital, dispensary, 'shamshan', 'kabristan' or other public utility of the like nature on the land. Observations of the Supreme Court in Jagpal Singh (supra) thus leaves no manner of doubt that removal of encroachment on all such land is a rule and regularisation an exception and that too in extremely limited number of cases, which only the Government can do by appropriate notification and no other authority.

8. A copy of this order be forwarded to the Chief Secretary of the State of Madhya Pradesh, Bhopal for issuance of necessary notification for notifying the permanent body designated as Public Land Protection Cell (PLPC) in every District with the District Collector as its head and a Tehsildar as its Member Secretary, apart from other revenue officers as the Members. This should be given due publicity for information of all the citizens that complaint with regard to encroachment over public land in the rural areas can be made to such authorities which shall be responsible for causing an enquiry into such complaint to be made and taking expeditious action for removal of encroachments so as to protect the public land."

In view of the above, we require the petitioner to approach the Collector, District Satna, who shall ensure compliance of the aforesaid order so as to get the land free from the encroachment in compliance of this order within three months after providing opportunity of hearing to private respondents.

Petition is accordingly disposed of. 


            (MOHAMMAD RAFIQ)                             (SATYENDRA KUMAR SINGH)
                CHIEF JUSTICE                                                         JUDGE

Wednesday, July 28, 2021

Bombay High Court in Pralhad vs. State of Maharashtra [26.07.2021]

IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
NAGPUR BENCH, NAGPUR. 

CIVIL WRIT PETITION NO.2552 OF 2021 

(Pralhad s/o. Gyanu Ghewande Vs. State of Maharashtra, through its Secretary, Department of Revenue & Forest, Mumbai and others) 
 
 Mr. S.M. Awachar, Advocate for petitioner 
Mr. N.R. Patil, AGP for the respondent Nos.1, 3 and 4/State 

CORAM : SUNIL B. SHUKRE AND ANIL S. KILOR, JJ.

DATE : 26th JULY, 2021.

Heard Mr. Awachar, learned counsel for the petitioner and Mr. Patil, learned AGP, who appears by waiving notice on behalf of the respondent Nos.1, 3 and

2. The petitioner is admittedly an encroacher upon government "E" Class land, which is Gairan land. It is the contention of Mr. Awachar, learned counsel for the petitioner that the petitioner is a land less person, who has encroached upon this land since the year 1991 and therefore, the petitioner is entitled for allotment of the land encroached by him through its regularization. He also submits that there is a Gram Panchayat Resolution dated 30.06.1998, which gives no objection for permanent allotment of government land to the petitioner. It is also the case of the petitioner that the petitioner is eligible for regularization of his encroachment, as his case falls in the exceptional categories carved out in the case of Jagpal Singh and others Vs. State of Panjab and others , (2011) 11 SCC

3. Mr. Patil, learned AGP for respondent Nos.1, 3 and 4 submits that under Section 22A of the Maharashtra Land Revenue Code, 1966 (for short "the Code of 1966"), no regularization for any private purpose is permissible, as it could amount to diversion of the Gairan land against the express provisions of law. He also submits that even by the criteria laid down in the case of Jagpal Singh (supra), the petitioner is not entitled for any kind of regularization.

4. So far as Gram Panchayat resolution is concerned, we must say that there was no business for the Gram Panchayat to have passed a resolution, giving its no objection for regularization of the encroachment upon the government land, especially in view of the provisions made under sub-Section (6) of Section 22A of the Code of 1966. These provisions indicate that powers of diversion, grant, lease of Gairan land under Section 22A of the Code of 1966 shall be vested in the State Government. Therefore, passing of any un- warrented resolution in respect of the land, of which Gram Panchayat is not the owner or the land which is not vested in the Gram Panchayat, only amounts to meddling with the affairs of the State Government, for which purpose, appropriate action, if thought it necessary, would have to be taken by the State Government.

5. Section 22A of the Code of 1966 provides for diversion of the Gairan land only in a limited manner. Such diversion or grant has been provided for under sub-sections (2) and (3) of Section 22A of the Code of 1966. Sub-section (1) of Section 22A of the Code of 1966 lays down that any land which is set apart as a Gairan land shall not be diverted or granted or leased for any other purpose, except in the circumstances, provided in sub-sections (2) and (3). For the sake of convenience, sub-sections (1), (2) and (3) of Section 22A are reproduced as under:
"[22A.Prohibition on diversion of use of Gairan land (1)The land set apart by the Collector for free pasturage of village cattle (hereinafter referred to as "the Gairan Land") shall not be diverted, granted or leased for any other use, except in the circumstances provided in sub- sections (2) or (3), as the case may be.
(2)The Gairan land may be diverted, granted or leased for a public purpose or public project of the Central Government or the State Government or any statutory authority or any public authority or undertaking under the Central Government or the State Government (hereinafter in this section referred to as "Public Authority"), if no other suitable piece of Government land is available for such public purpose or public project.
(3)The Gairan land may be diverted, granted or leased for a project of a project proponent, not being a Public Authority, when such Gairan land is unavoidably required for such project and such project proponent transfers to the State Government, compensatory land as provided in sub-sections (4) and (5)."

6. It would be clear from the above provisions of law that except for public purpose, the Gairan land cannot be diverted or granted or leased out for any other use. In the present case, the petitioner is seeking allotment of the land on lease to him for private purpose, which is not permissible under above referred provisions of law.

7. Even in the case of Jagpal Singh (Surpa), the Hon'ble Apex Court has allowed regularization only in exceptional cases, and these cases have been listed as the cases where lease had been granted under some Government Notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other utility on the land. In present case, admittedly, the petitioner is not there on the land by virtue of some Government Notification in his favour. Admittedly, the petitioner is seeking regularization of his encroachment for only private purpose. Therefore, as per the law laid down by the Hon'ble Supreme Court of India, the petitioner is not entitled for regularization of his encroachment by allotting the land on lease to him.

8. In the result, we find no merit in the petition, the petition stand summarily dismissed. No costs.

9. The learned counsel for the petitioner submits that crops of Soyabean and Toor are standing on the encroached land and therefore, some protection should be given to the petitioner to enable him to save the harvest of these crops.

10. There is nothing on record which establishes as a fact that these crops are standing on the land in question. Besides, notice has been received by the petitioner in May 2021 and therefore, if the contention of the petitioner is correct, petitioner ought to have taken necessary steps by now regarding removal of the crops, which apparently the petitioner has not done so.

11. The prayer made by the learned counsel for the petitioner is, therefore, rejected. However, the petitioner may approach the Tahsildar for grant of time of one week or two weeks at the most for restoring the land to its original position, if any.

Madras High Court in Smt. Logammal & Ors. vs. District Collector [22.01.2019]

IN THE HIGH COURT OF JUDICATURE AT MADRAS 
DATED: 22.01.2019 

CORAM THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM 

W.P.No.20854 of 2005 and 
W.P.M.P.No.22785 of 2005 
1.Smt.Logammal 
2.Smt.Varalakshmi 
3.Smt.Kumari 
4.Sri.Maheswari 
5.Lavanya Devi 
6.Saranya Devi 
7.Manikandan (Petitionesr 6 & 7 are Minors, Rep.by their Mother and Natural Guardian Smt.Maheswari.) 
All are residing at Previous No.1, old No.4, New No.2 Narasimhalu Naidu Street, Ayyavoo Naidu colony, Chennai – 29 
...Petitioner 
 vs 
1.The District Collector Chennai District, Singaravelar maligai, Kamarajar Salai, Chennai – 600 001. 
2.The Tahsildar, Egmore – Nungambakkam Division Chennai 
3.The Tahsildar, Aminjikarai, Chennai. (R3-Suo motu impleaded as per order dated 17.12.2018 in W.P.No.20854/2005) 
...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 of the 2nd Respondent pertaining to MO.M.(A2) 00751/2005 Dt.01.04.2005, quash the same and direct the Respondents to issue Patta in favour of the Petitioners in respect of the land measuring one ground 1260/Sq., ft, i.e., 3600 sq., ft., of land bearing T.S.No.3, O.S.No.17/3, Block No.4(R.S.No.6, Block No.4) Previous No.1, Old No.4 and present New No.2, Narasimhalu Naidu Street, Ayyavoo Naidu Colony, Aminjikarai, Chennai – 600 029, morefully described in the Schedule hereunder. 

For Petitioner : Mr.S.Natana Rajan 
For Respondents : Mr.Akhil Akbar Ali, Government Advocate ORDER


The order passed by the Tahsildar, Egmore-Nungambakkam Taluk, rejecting the claim of the writ petitioner to grant patta in respect of the land, which is classified as “Circar Poramboke” is under challenge in the present writ petition.

2.The learned counsel for the writ petitioners state that the writ petitioners are in possession and enjoyment of the property for long years and by virtue of their occupation for a considerable length of time, they are eligible for grant of patta. When an application is made, the 2nd respondent / The Tahsildar rejected the application on the ground that the land under the possession and occupation of the writ petitioners are classified as “Circar Poramboke” and therefore, no patta can be issued as per the Government Policy.

Challenging the said order, the present writ petition has been filed.

3.The petitioners, who are also present before this Court, expressed their concern about their livelihood. This Court is of an opinion that undoubtedly the grievances of the citizen are to be addressed and redressed by the “State” in an appropriate manner. The “State” is a welfare State, is bound to implement certain schemes for the welfare of the poor landless people and the Government is periodically implementing such schemes by constructing houses for the poor landless people. Allotments are made by considering the eligibility criteria and by following the terms and conditions stipulated in the policy. The writ petitioners are also entitled to submit application for allotment of free house or site as per the Government schemes, if they are otherwise eligible in accordance with the terms and conditions of the scheme. However, this Court cannot encourage the encroachments made by the citizen in respect of the public land.

4.Encroachments are infringing the rights of all other citizen. The constitutional rights of all other citizen in respect of the public properties cannot be taken away by few individuals on account of their greediness. Encroachment of land occurs on account of greediness. Courts can never encourage the actions of such greedymen in respect of their encroachment of the public land, water bodies and water resources. It is a growing trend across the State that few greedymen, land grabbers and land mafias are encroaching the public property, water bodies and water resources and obstructing the development of our great Nation. On account of large scale encroachments, the developmental activities of the State is being paralyzed. “State” is bound to act vigilantly and no leniency can be shown in respect of the encroachers and the authorities competent are bound to invoke the provisions of the Tamil Nadu Land Encroachment Act, 1905 or the Tamil Nadu Protection of Tanks and removal of Encroachment Act, 2007 whichever is applicable. There cannot be any leniency or misplaced sympathy in respect of the encroachers. Any lapses in this regard on the part of the authorities are also must be viewed seriously. The authorities committing lapses, negligence or dereliction of duty by way of any omission or commission, must be taken note of and suitable prosecution and appropriate disciplinary actions are also to be initiated against all such officials, who all are responsible for committing an act of negligence or dereliction of duty.

5.Admittedly, the land under the occupation of the writ petitioners are classified as “Circar Poramboke”. The Status Report filed by the Tahsildar, Aminjikarai categorically enumerates as follows:-

“3. I, respectfully submit that the Sub-Inspector of Survey of this office, who inspected the said property has reported that the property is situated at New No.2, Narasimhalu Naidu Street, Ayyavoo Naidu Colony, Aminjikarai, Chennai – 600 029, corresponds to T.S.No.3 of Block No.4 of Vada Agaram Village and the said piece of land stands registered in the Town Survey Land Records as follows: Village : Vada Agaram Block No. :4 T.S.No. :3 Old S.No. : 17/3 part Classification : Circar Poramboke Extent : Hec.Ares.Sq.metres 00 07 15.0 Adangal : Collector's Colony How the holding is utilized? : ....”

6.The earlier writ petition filed by the very same writ petitioners in W.P.No.37113 of 2004 was disposed of with a direction to consider the representation submitted by the writ petitioners. The Tahsildar concerned rejected the claim of the writ petitioner for grant of patta on the ground that the land is classified as “Circar Poramboke” and therefore, no patta can be issued.

7.The Tahsildar along with the Status Report enclose the copy of the 'A' Register as well as the Sketch of the area, which is under the possession and occupation of this writ petitioner. The Status Report reveals that the writ petitioners are the encroachers and the land under their occupation is a “Circar Poramboke” land and therefore, they have no right whatsoever to claim patta or to continue their possession. Long possession in respect of the Poramboke land, water bodies and water resources would not confer any right on the encroachers to claim patta or to continue in the “Circar Poramboke” land.

8.This Court had passed an order in respect of the evil facts of encroachments and the infringement of rights of all other citizens in general in W.P.No.33883/2012 dated 11.09.2018 and the relevant paragraphs are extracted hereunder:-
“7. If the Officials are inactive and insensitive towards the encroachments in public lands and water bodies it would amount to infringing the constitutional rights of other citizens, who are residing in the nearby places from water bodies, as the same would affect the other citizens to get sufficient water. Thus, the infringement amounts to violation of constitutional rights ensured to all other citizens. It is the duty of the State to preserve the water bodies and prevent ecological imbalances. Such being the constitutional perspectives and duty of the State, the State authorities are bound to act in respect of all such encroachments. In W.P.No.4779 of 2015 dt.13.08.2018, this Court passed an order as below:-11.ENCROACHMENT – AS AN ISSUE:-

(1) The Black's Law Dictionary defines encroachment as “an infringement of another's rights; an interference with or intrusion onto another's property”. The word 'Encroach' is defined as “to enter by gradual steps or stealth into the possessions or rights of another; to trespass or intrude; to gain or intrude unlawfully onto another's lands, property or authority”. Thus, it is unambiguous that encroachment is an offence. Encroachment amounts to a criminal trespass into the property belongs to another.

(2)The definition of encroachment is also defined in Section 2(1)(c) of the Tamil Nadu Land Encroachment Act, 1905 (Act III of 1905). Encroachment means, unauthorised occupation of land and public land by way of putting temporary, or permanent structure for residential or commercial use or any other use.

(3) The encroachment process gradually gains momentum from the following factors:-
(i) Lack of periodical monitoring;
(ii) Weakening of Social bondage;
(iii) People's justification of their position by citing wrong examples;
(iv) Delayed realisation of the ill-effects caused by encroachments;
(v) Negligence of Government functionaries and lack of timely action.

However, it is pertinent to note the fact that the basis of the alarming rise of encroachments is the greed, selfishness, and jealousy of people.

(4) Section 441 of the Indian Penal Code states; “whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or, having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit 'criminal trespass'.” The term 'criminal trespass' has been defined in Black's Law Dictionary as “a person who enters on the property of another without any right, lawful authority or an express or implied invitation or licence”. But when trespass is committed with a criminal intention, it is treated as an offence and is made punishable under the Indian Penal Code. A punishment is that “whoever commits criminal trespass shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.

(5) The land encroachment is a social evil. Encroachment is a passive form of land grab movement, which mirrors man's innate greed for land and his natural tendency towards aggrandizement of wealth in any form. Encroachment of Government property is a loss not only for the Government but also the public, as huge amount of money would be spent again to acquire new property.

(6)The Government lands are for the welfare of the public in general and to create common infrastructure for the usage and benefit of, we the people of India. Thus, the matter of encroachment of Government land cannot be treated ordinarily and it should be treated as a grave offence against, the State.

(7) Article 300-A of the Constitution of India deals with persons not to be deprived of property save by authority of law. No person shall be deprived of his property save by authority of law. Thus, the State being a “person”, cannot be deprived of its right of property and any intruder is liable to be prosecuted under the provisions of the Land Encroachment Act as well as under the Penal Law. Thus, this Court is of the opinion that the rights conferred to a person under Article 300-A of the Constitution of India, is certainly available to the State and the State has got every right to initiate appropriate legal action against the encroachers.

(8) The preamble of the Constitution 'WE THE PEOPLE OF INDIA', is the heart and soul of the Constitution. Article 12 of the Constitution provides definition for the State. Accordingly, 'the State' includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. Thus, State is a person and therefore, all public lands belong to the State and we the people of India are the owners of the land. Thus, the right of property provided under Article 300-A is to be extended to the State as a person. In other words, the property belongs to the State is also protected under Article 300-A of the Constitution of India. Thus, any encroacher of a public/Government land is certainly depriving the right of property of the State to possess the same under Article 300-A of the Constitution of India. Therefore, the question of de-linking such encroachers otherwise will not arise at all. Question of extending the equality clause or the discrimination clause will not arise at all to the encroacher as an offender and an offender citing the offence committed by one offender, another one cannot claim that he should also be exonerated from the offence. Such a dangerous proposition, cannot be adopted at any circumstances and in the event of connivance with the officials in this regard also to be viewed very seriously.

(9) This Court wishes to ask a question whether any citizen of this country will allow another citizen to encroach the property owned by him. Litigations in lakhs and lakhs are pending before various Courts in our Great Nation only to establish the rights of such citizen in respect of their property. Such being the law of this country, how a State land can be allowed to be encroached by another citizen and such offences are dealt in a casual manner by the officials. Due to the constant increase of market value of the immovable property in this Great Nation, the public officials are also contributing for the dilution of the implementation of various laws in this regard, more specifically, while dealing with the Government lands. Such actions deserve to be condemned and such officials are to be dealt with iron- heart and no leniency can be shown to such public officials.

12.The Tamil Nadu Land Encroachment Act, 1905, is an Act, which provide measures for taking unauthorised occupation of land which are the property of the Government. The preamble of the Act provide measures for checking unauthorised occupation of lands which are the property of the Government, whereas, it has been the practice to check the unauthorised occupation of lands which are the property of the Government and by imposition of penal or prohibitory assessment or charge and whereas, the doubts have arisen as to how far such practice is authorized by law and it is expedient to make statutory provision for checking such occupation. The Act provides for removal of encroachment and and the implementation of the Act by the Government officials are to be done in a manner prescribed under the Act. Any violation of the officials also to be viewed seriously.

13.With this background, it is necessary to go into the legal principles laid down by the Courts on encroachments:

(i)In PANDIA NADAR AND ORS v. THE STATE OF TAMIL NADU AND ORS [ 1974 AIR 2044], the Constitution Bench of the Hon'ble Supreme Court rendered a Judgment on 30 April 1974 wherein, the very th constitutional validity of the Tamil Nadu Land Encroachment Act, 1905 was tested. While dismissing the Appeals filed by land encroachers, the Hon'ble Supreme Court held as follows:

This Court then went on to apply those principles to the statutes under consideration in the following words :

"The statute itself in the two classes of cases before us clearly lays down the purpose behind them, that is that premises belonging to the Corporation and the Government should be subject to speedy procedure in the matter of evicting unauthorized persons occupying them. This is a sufficient guidance for the authorities on whom the power has been conferred. With such an indication clearly given in the statutes one expects the officers concerned to avail themselves of the procedures prescribed by the Acts and not resort to the dilatory procedure of the ordinary Civil Court. Ever, normally one cannot imagine an officer having the choice of two procedures, one which enables him to get possession of the property quickly and the other which would be a prolonged one, to resort to the latter. Administrative officers, no less than the courts, do not function in a vacuum. It would be extremely unreal to hold that an administrative officer would in taking proceedings for eviction of unauthorised occupants of Government property or Municipal property resort to the procedure prescribed by the two Acts in one case and to the ordinary Civil Court in the other. The provisions of these two Acts cannot be struck down on the fanciful theory that power would be exercised in such an unrealistic fashion. In considering whether the officers would be discriminating between one set of persons and another one has got to take into account normal human behaviour and not behaviour which is abnormal. It is not every fancied possibility of discrimination but the real risk of discrimination that we must take into account. This is not one of those cages where discrimination is writ large on the face of the statute. Discrimination may, be possible but is very improbable. And if there is discrimination in actual (1) [1952] SCR 435 (2) [1962] 2 SCR 125 (3) [1960] 2 SCR 646 (4) [1954] SCR 30.

practice this Court is not powerless. Furthermore, the fact that the Legislature considered that the ordinary procedure is insufficient or ineffective in evicting unauthorised occupants of Government and Corporation property, and provided a special speedy procedure therefore is a clear guidance for the authorities charged with the duty of evicting unauthorised occupants. We, therefore, find ourselves unable to agree with the majority in the Northern India Caterers' case."

(ii)In KRISHNAN,L. v. STATE OF TAMIL NADU [2005 (4) CTC 1], His Lordship Justice F.M.Ibrahim Kalifulla, speaking for the Bench, held as follows:

“9. In this connection reference may be made to Article 48A of the Constitution which states: -

"Protection and improvement of environment and safeguarding of forests and wild life: - The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country."

10. No doubt the above provision is in the Directive Principles of State Policy, but it is now well settled that the fundamental rights and directive principles have to be read together, since it has been mentioned in Article 37 that the principles d down in the Directive Principles are fundamental in the governance of the country and it is the duty of the State to apply these principles in making laws. The Directive Principles embody the aim and object of the State under a Republican Constitution, i.e., that it is a welfare State and not a mere police State, vide Kesavananda Bharati Vs. State of Kerala, (197 3) 4 SCC 225 (vide paragraphs - 134, 139 and 1714) and embodies the ideal of socio-economic justice, vide Union of India Vs. Hindustan Development Corporation, AIR 1994 SC 988 (990).

11. Though the early decisions of the Supreme Court paid comparatively scant attention to the Directive Principles in Part - IV of the Constitution as they were said to be non-justiciable and nonenforceable in the Courts (vide Article 37), the subsequent decisions of the Supreme Court changed this trend and this new trend reached its culmination in the 13 member bench Judgment of the Supreme Court in Kesavananda Bharati's Case (Supra), which laid down that there is no disharmony between the directive principles and fundamental rights because they supplement each other in aiming at the same goal of bringing about a social revolution and the establishment of a welfare State, which is envisaged in the Preamble to the Constitution. The Constitution aims at a synthesis of the two, and the Directive Principles constitute " the conscience of the Constitution". Together they form the core of the Constitution, vide Markandeya, V. Vs. State of A.P., AIR 1989 SC 1308 (paragraph - 9). They are not exclusionary, but are complementary to each other, vide Unnikrishnan, J.P. Vs. State of A.P., AIR 199 3 SC 2178. It follows therefore that the courts should uphold, as far as possible, legislation enacted by the State which seeks to remove inequalities and attain 'distributive justice', vide, Lingappa Pochanna Appealwar Vs. State of Maharashtra, AIR 1985 SC 389 (paragraphs 1 6 and 20), Manchegowda Vs. State of Karnataka,AIR 1984 SC 1151, Fateh Chand Himmatlal Vs. State of Maharashtra, AIR 1977 SC 1825, etc., In recent decisions the Supreme Court has been issuing various directions to the Government and administrativeauthorities to take positive action to remove the grievances which have been caused by nonimplementation of the Directive Principles, vide Comptroller and Auditor General of India Vs. Jagannathan, AIR 1987 SC 537 (paragraphs 20-21), Mukesh Advani Vs. State of M.P., AIR 1985 SC 1363, Bandhua Mukti Morcha Vs. Union of India, AIR 1984 SC 802, Animal and Environment Legal Defence Fund Vs. Union of India, (1997) 3 SCC 549, etc.

12. Apart from the above we may also refer to Article 51A(g) of the Constitution which makes it a fundamental duty of every citizen "to protect and improve the natural environment including forests, lakes, rivers and wild life". This duty can be enforced by the Court, vide Animal and Environment Legal Defence Fund Vs . Union of India (supra, vide para-15).

13......

14. Therefore, we direct the respondents 1 to 5 to take necessary legal steps to remove the alleged encroachments made by the respondents 6 to 12 as well as the petitioner over Odai Poramboke in Iyan Punji Survey No.100/1 at No.247, Tatchur Village, Kallakurichi Taluk, Villupuram District measuring 5 acres and 70 cents. Inasmuch as this writ petition has come before us by way of a public interest litigation, we take this opportunity to direct the State Government to identify all such natural water resources in different parts of the State and wherever illegal encroachments are found, initiate appropriate steps in accordance with the relevant provisions of law for restoring such natural water storage resources which have been classified as such in the revenue records to its original position so that the suffering of the people of the State due to water shortage is ameliorated.”

(iii) In an important Judgment, the Hon'ble Supreme Court in JAGPAL SING v. STATE OF PUNJAB [ AIR 2011 SCC 1123], has held as follows:

“13. We find no merit in this appeal. The appellants herein were trespassers who illegally encroached on to the Gram Panchayat land by using muscle power/money power and in collusion with the officials and even with the Gram Panchayat. We are of the opinion that such kind of blatant illegalities must not be condoned. Even if the appellants have built houses on the land in question they must be ordered to remove their constructions, and possession of the land in question must be handed back to the Gram Panchayat. Regularizing such illegalities must not be permitted because it is Gram Sabha land which must be kept for the common use of villagers of the village. The letter dated 26.9.2007 of the Government of Punjab permitting regularization of possession of these unauthorized occupants is not valid. We are of the opinion that such letters are wholly illegal and without jurisdiction. In our opinion such illegalities cannot be regularized. We cannot allow the common interest of the villagers to suffer merely because the unauthorized occupation has subsisted for many years. “

21. For the reasons given above there is no merit in this appeal and it is dismissed.”

14.It is categorically stated in the counter affidavit filed by the respondents that the portion of the land encroached by the writ petitioner is a Government Poramboke land, which is preserved as water body. The Hon'ble Division Bench of our High Court in the case of T.S.Senthil Kumar, Vs. The Government of Tamil Nadu, rep.by its Secretary, Public Works Department, in W.P.No.20021 of 2008 dated 10.02.2010 and the relevant paragraphs are extracted hereunder:

“From the above, it is seen that the Act in question has come not a day sooner, because we have seen that the Ramsar Convention includes as wetlands, not only natural wet lands, but even human-made wetlands such as waste water treatment ponds and reservoirs. Therefore, tanks and tank poramboke lands would definitely require protection from encroachment.” “18.Considering the fact that we have adopted wet land conservation policy which takes note of the environmental value and functions of wet lands and the fact that they deserve to be protected, the State may take steps to protect all water bodies and not only tanks. In L.Krishnan's case - AIR 2005 Madras 311, this Court has referred to the judgment of the Supreme Court in AIR 2001 SC 3215, where the maintenance of ecological balance has been highlighted and this Court has also specifically indicated that it is imperative to see that water storage resources such as tanks, odais, oranis, canals are not obliterated by encroachers. Right to water is a part of life and, therefore, as observed by the Supreme Court in Hinch Lal Tiwari v. Kamal Devi and others - AIR 2001 SC 3215, demands of economic development must be made without compromising the natural resources of the earth which this generation holds in trust for future generation. The order of inter- generational equity has to be remembered and in fact in the Rio Declaration, to which India is a party, it has been affirmed that environmental protection constitutes an integral part of sustainable development and cannot be isolated from it.” “19.Persistent developmental activities, ignoring the need to protect natural resources, have caused irreparable damage. It is also necessary that the State shall not invoke Section 12 of the Act which results in alienation of tank poramboke lands citing "public interest". Protection of water resources is as much as a public interest issue as any other requirement. The Government may also bear in mind that water resources have to be protected while issuing patta to persons who claim to have resided in the same place for a number of years.”

15.The Hon'ble High Court, in the above said case issued directions to the State, which reads as under:

“(a)The State shall scrupulously follow the provisions of the Act. It shall also ensure that all the District Collectors and other authorities, who are concerned with the observance of the provisions of the Act, strictly follow the letter, dated 10.10.2007.

(b)The District Collectors, while creating adequate awareness, may also enlist the help of Self Help Groups to disseminate the message that protection of water resources will actually promote the welfare of the villages and therefore it is in the interest of every citizen to make sure that he is not encroaching on a tank and to clear tanks and water bodies which are filled with garbage and to avoid dumping of garbage will automatically enhance and improve the public health of the community.

(c)As already stated, the State will ensure that alienation of tank poramboke lands, citing public interest, shall not be made under Section 12 of the Act. The meaning and weight of the words "public interest" shall be implicitly borne in mind.

(d)The State holds all the water bodies in public trust for the welfare of this generation and all the succeeding generations and, therefore, protecting water bodies must be given as much weightage, if not more as allowing house-sites or other buildings to come up on such tanks or tank poramboke lands, and water charged lands.

(e)The State shall also bear in mind the provisions of this Act and the objects and reasons of this Act while issuing patta to persons who claim to have resided in the same place for a number of years and if necessary modify the relevant Government Orders to make sure that the implementation of these G.Os. are not in violation of this very valuable and important Act, namely Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007.”

16.The Hon'ble Division Bench of our High Court in W.P.No.26364 to 26376 of 2017 dated 10.10.2017, held as follows:

“8.A perusal of the typed set of documents filed in support of these writ petitions would reveal a shocking and sorry state of affairs. Admittedly, the petitioners are ranked encroachers and however, the concerned revenue officials have failed to take action at the relevant point of time and therefore, allowed them to perpetuate the illegality and the petitioners/their predecessors have, not only stopped with the illegal act of encroachment ; but also got emboldened on account of the inaction on the part of the revenue officials as well as the Local Body officials and proceeded to construct palatial superstructures, without any authorisation or planning permission and also leased out the same for commercial purposes. It appears that it was / is a deliberate and wilful act on the part of the revenue officials as well as the Local Body officials as to the non-taking of any action to abate such illegalities.” “The respondents shall cause inspection of the entire area in question and identify the encroachers as well as the unauthorised / deviated constructions and take necessary and appropriate action within a period of ten weeks from the date of receipt of a copy of this order and file a COMPLIANCE REPORT to this Court.” “The Administrative Department of the Government is directed to identify the officials concerned as to the continued laxity and exhibition of callousness and apathy in performing / discharging their official duties and neglect in protecting the assets of the Government and initiate appropriate Departmental and Criminal action and also file a Status Report.”

17.From the said judgments delivered based on the legal principles settled by the Hon'ble Apex Court of India, it is clear that all “Kuttai Poramboke”, “Pond Poramboke” and other Poramboke lands belongs to the Government are to be preserved for protecting the Environment and for the usage of the public at large. In this case, it is categorically admitted even by the writ petitioners' that they have encroached the Government Poramboke land and it was classified as “Vari Poramboke lands” and “Pond Poramboke lands”, which all are water bodies. Thus, there cannot be any leniency or misplaced sympathy in respect of such encroachments of the Government land and the authorities competent are duty bound to protect the same in all respects. However, this Court is able to find out that the officials have miserably failed to protect such valuable lands of the Government and submitted frequent proposals in favour of the writ petitioners' on extraneous considerations, enabling them to pursue the matter for getting permission in an illegal manner. Thus, the public officials have colluded with the writ petitioner company for the purpose of the continuance of encroachment of such Government Poramboke lands. All such Government officials are liable for prosecution and suitable disciplinary proceedings are also to be initiated against such persons. The Government officials are the abettors and have equally committed an offence by assisting the writ petitioners' to encroach the land and continue in the encroached land for the past about many years. Thus, the officials concerned are equally responsible.

18.This Court is able to find that the Sub-Collector, Ariyalur, who passed the impugned order alone has realized the fact and rejected the claim of the writ petitioner. Thus, the actions are to be initiated against all the officials, except the Sub-Collector, Ariyalur, who passed the impugned order in this writ petition.

19.Considering the arguments as advanced by the learned counsel for the writ petitioner as well as the learned Special Government Pleader, this Court has to consider, whether it is right on the part of the writ petitioner to encroach the Government Poramboke land and thereafter, write a letter, seeking permission to lay Railway Tracks. Whether the writ petitioner is right in continuing the industrial establishment by encroaching the Government land without even obtaining permission from the Government. This apart, the subsequent proposal to provide an alternate land for exchange is also not made clear by the writ petitioner. Contrarily, the respondents stated that the proposed alternate land suggested by the writ petitioner also belongs to the Government and it is not the land belongs to the writ petitioner. Under these circumstances, this Court has to examine whether the writ petitioner has shown their highhandedness in respect of encroaching the Government land with the hope that the Government will not raise any objection. This Court has to further examine that whether the public servants/respondents have acted prudently and diligently in maintaining the public lands meant for the welfare of the public at large. The Possibility of collusion and corrupt activities of the Government officials are also to be examined in such nature of cases, where the petitioner like corporate sector has encroached the public lands and laid Railway Tracks by digging the water body for about 30 ft. and utilizing the same for commercial purposes, thereby depriving the people of that locality to utilize the water bodies and the public pathway. All these questions are to be addressed in such nature of cases.

20.Admittedly, the writ petitioner has encroached the land belongs to the Government. In paragraph 7 of the affidavit filed in support of the writ petition categorically states that “9.55 K.M railway path identified by the petitioner company included lands under the Government Poramboke measuring a total extent of nearly 9.12 acres”. The petitioner made an application dated 05.05.2009, bearing No.549 with the 1st respondent to utilize the specified Government Poramboke land, thereby agreeing to pay the prescribed fee, if any, to the Government, of which, a copy was also sent to the 3rd and 4th respondents. Thus, it is unambiguous that the writ petitioner has encroached the land belongs to the Government without any authority. It is an admitted fact and therefore, factual presumption is to be drawn that the petitioner has usurped the powers of the State with an understanding that nobody can raise any objection in respect of such encroachments. Otherwise also, they are under the impression that no person in the Village can raise any objection in view of their strength and they are confident that they can get such permission even after encroachment. Such an attitude of the writ petitioner can never be tolerated. If the Corporate Sectors started encroaching the public lands with the fond hope that they can violate the rule of law and get permission from the Government in their own way, then the Courts cannot witness the same as mute spectator. Such an attitude of the writ petitioner is certainly unwarranted and is to be deprecated.

21.The frequent internal correspondences between the respondents are clear that they wanted to assist the writ petitioner on extraneous considerations. On a perusal of the internal communication between the respondents 3, 4, 5, 6 & 7, this Court is of a strong opinion that there is a possibility of collusion in order to help the writ petitioner one way or other. This Court cannot have any objection to help for the development of an Industry. In fact, this Court has to positively look into the industrial advancements and developments in our great Nation. However, considering the process of developing the industries and corporates, the persons, who all are desiring to commence such industrial activities, must know that they are bound by the rule of law and the norms fixed and the law in force, must be followed for the commencement of industrial activities. Such industries cannot encroach upon the Government land, which is not only a water body, but also used as a pathway by the Villagers and the people of that locality. Thus, the collusion in this regard by the authorities are also to be investigated by the State Government. There is a possibility of corrupt activities also and the investigating authority must examine all these aspects based on the internal correspondences shared between the respondents for several years and thereby allowing the writ petitioner to enjoy the Government land for about many years. The language used in the internal correspondences are self- explanatory that the authorities have taken steps to ratify the illegality committed by the writ petitioner. It is not an irregularity, but certainly an illegality. The illegality committed by the persons cannot be condoned in a routine manner. The illegalities are to be dealt with in accordance with law. When the authorities came to understand that the writ petitioner has committed an illegality, then they are bound to initiate appropriate action under the provisions of law. Thus, all those officials, who have shared the internal communication in order to help the writ petitioner in an illegal way, must be prosecuted and suitable disciplinary actions are to be initiated by the competent authorities. Once the illegality is found, it is duty mandatory on the part of the public servants to ensure that proper actions are initiated against all such illegalities. Contrarily, they are going on writing letters and sharing informations, knowing the fact that the Government has not granted any permission or assignment in favour of the writ petitioner. When the Sub Ordinate officials have indulged in such correspondences intentionally and knowing that the Government has not granted permission, there is no reason to approve the conduct and the manner in which they dealt with the matter relating to encroachment of public lands. Thus, the conduct of the Government officials concerned in this regard are certainly reprehensible and suitable actions are certainly warranted.

22.On a perusal of the impugned order, the Sub-Collector has categorically made a finding that the writ petitioners' have encroached the Government land and laid Railway Tracks by digging in the encroached land 30 ft. depth and 60 ft. breadth. The alternate land suggested for exchange is also classified as “Cart Track Poramboke lands”. Therefore, the writ petitioner has made an attempt to cheat the Government by providing another Government land as an alternate land for exchange. The attitude of the writ petitioner in this regard deserves all further actions in accordance with the provisions of the Tamil Nadu Land Encroachment Act, 1905. The Sub- Collector has clearly stated that the land owners Easementary right has been encroached by the writ petitioner company, while forming the Railway Track in the Government Poramboke Lands. It is categorically established by the respondents 8 to 14 that the pattadars could not reach their land for cultivation, and could not carry the agricultural produce as well as the implements thereby affecting their livelihood and found rights on account of the encroachment of the Government land committed by the writ petitioner company. The land encroached was classified as “Vari Poramboke lands”, which all are prohibited water bodies by the Hon'ble Supreme Court. Some of the lands are “Pond Poramboke lands” and in the course of forming of Railway Track by digging to the depth of 30 ft, the natural water ways in these lands have been damaged, thereby hindering natural water flow leading to the curtailment of irrigation for agriculture. The lands to which exchange proposal is put forth by the company are “Cart Track Poramboke lands”. Thus, on account of the large scale of encroachment of Government lands by the writ petitioner company, the nearby land owners have lost their usual pathway rights. The findings of the District Collector is certainly an alarming factor for this Court. The writ petitioners' have encroached the water bodies and the Apex Court and this Court has passed number of orders, stating that the water bodies are to be protected in all respects. When there is an encroachment in the water body namely “Vari Poramboke lands”, “Pond Poramboke lands”, this Court is unable to understand, why the official respondents have not taken any action to remove all such encroachments by following the procedures as contemplated under the provisions of Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007. The present Sub-Collector, who passed the impugned order has categorically stated that the writ petitioners' have encroached the public lands, which includes water bodies and “Pond Poramboke lands”. Such being the factum, why the earlier officials, who had indulged in sharing internal correspondences, have not initiated proper legal action to evict the encroachers in respect of the Government lands, which all are classified as water bodies. In this regard, a detailed investigation and an enquiry is certainly warranted and all the officials, who have acted unbecoming of a public servant are to be prosecuted under the penal provisions as well as under the disciplinary laws.

23.This being the view taken by this Court, there is no infirmity as such in respect of the impugned order passed by the 2nd respondent/The Sub- Collector, Ariyalur, in proceedings dated 10.02.2015 and accordingly, the writ petition is devoid of merits. However, taking note of the internal correspondences between the Government officials and the manner in which the Government lands including the water bodies are systematically allowed to be encroached by the corporates like the petitioner, this Court is inclined to pass the following orders.

(i) The writ petitioner, admittedly, an encroacher of the Government land, has not established even a semblance of right to grant the relief as such sought for in the present writ petition. Accordingly, the claim of the writ petitioner is rejected.

(ii) The respondents 2 and 3 are directed to evict all the encroachments of the “Government Poromboke lands”, “Vari Poramboke lands”, “Pond Poramboke lands” and all other public lands in that locality within a period of Two Weeks from the date of receipt of a copy of this order.

(iii) The Superintendent of Police, Ariyalur, is directed to provide necessary Police protection to the respondents 2 and 3 to evict the encroachers from the public lands in all respects.

(iv) The first respondent is directed to order for an enquiry or investigation to be conducted by an I.A.S. level officer in respect of the conduct of the officials of the District Administration and the officials of the Public Works Department in respect of their conduct, negligence, dereliction of duty, corrupt activities, illegalities and to submit a enquiry report within a period of two Months from the date of receipt of a copy of this order.

(v) On receipt of an Investigation/Enquiry report, the first respondent is directed to initiate all appropriate actions against all the public servants and all other persons concerned under the penal provisions of law and under the Discipline and Appeal Rules.

24.With these directions, the writ petition stands disposed of. However, there shall be no order as to costs. Consequently, connected miscellaneous petitions are also closed”.

8. The counter-affidavit filed by the respondents states that the writ petitioner has encroached upon 0.40.5 ares of land in Survey No.1395C/3A, classified as 'Wet Assessed Waste (Nanjai Tharisu) Government Poramboke Land (Total extent 11.73.5 Ares) and the writ petitioner has constructed a Compound Wall in respect of the encroached Government land.

9. This being the factum of the case, the District Collector is bound to act swiftly and remove all such encroachments by evicting the encroachers both in the Government lands and in water bodies. In view of the facts and circumstances, the following orders are passed:-

(i) The relief as such sought for in this writ petition stands rejected.

(ii) The District Collector, Kancheepuram District/first respondent is directed to conduct review meetings with the Officials concerned to identify the encroachments in Government lands as well as in the water bodies and water resources, within the jurisdiction of Kancheepuram District, and within a period of two weeks from the date of receipt of a copy of this order.

(iii) The District Collector, Kancheepuram District/first respondent is directed to issue suitable orders/instructions to all the concerned Officials to initiate action to evict all such encroachments in Government lands, water bodies and water resources, within his jurisdiction, by following the procedures contemplated under the Tamil Nadu Land Encroachments Act, 1905 or under the Tamil Nadu Protection of Tank and Eviction of Encroachment Act, 2007, which ever is applicable.

(iv) In the event of any failure, negligence or dereliction of duty on the part of the Officials concerned, then the District Collector is directed to initiate appropriate prosecution and departmental disciplinary proceedings against all such Officials under the Rules in force.

(v) Suitable circulars or instructions are to be issued to all the Officials concerned to protect the Government lands, Government properties, water bodies and water resources in accordance with law.

(vi) The Superintendent of Police, Kancheepuram District, is directed to provide adequate protection to the Officials for the purpose of initiating actions to evict the encroachers from the Government lands, water bodies and water resources in Kancheepuram District.

10. Accordingly, the writ petition stands disposed of. However, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.”

9.Even in the earlier writ petition cited supra, the District Collector was issued with a direction to remove the encroachments in Government Poramboke lands, water bodies and water resources. The District Collector, Chennai also filed a Status Report in other writ petitions, stating that the actions are initiated in respect of the removal of encroachers from the Government land, water bodies and water resources. When the process of evicting the encroachers are in progress, this Court is of an opinion that the present writ petitioners deserve no consideration in respect of their claim. The District Collector, Chennai has initiated swift actions in respect of encroachments within his jurisdiction and the Government orders are also awaited in this regard. Under these circumstances, the writ petitioners are not entitled for any relief as such sought for in the present writ petitions.

10.However, it is made clear that if the petitioners are otherwise eligible for allotment of a free house site or a free house under the scheme if any implemented by the Government, their case also shall be considered along with all other eligible persons and strictly by following the terms and conditions, if any application is made by the petitioners in this regard. However, this Court cannot grant the relief to grant of patta as the writ petitioners are the encroachers and the land in question is classified as “Circar Poramboke” and further, the land is situated within the Chennai City and such a valuable land belongs to the Government cannot be parted with in favour of few individuals by granting patta.

11.In this view of the matter, the writ petitioners have not established any acceptable ground for the purpose of grant of relief as such sought for in the present writ petition.

12.Accordingly, the writ petition stands dismissed. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed.

22.01.2019 

S.M.SUBRAMANIAM, J.