M. Jeyasudha v. District Collector, Tuticorin & Ors. [20.12.2019]

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT 

W.P (MD) No. 21908 of 2019 etc. batch

Date of Reserving the Order 26.11.2019

Date of Pronouncing the Order  20.12.2019 

M. Jeyasudha 

... Petitioner 

Versus

1.The District Collector Tuticorin District, Tuticorin 

2.The Revenue Divisional Officer Kovilpatti, Tuticorin District 

3.The Tahsildhar Kovilpatti Taluk Kovilpatti, Tuticorin District 

4.The Executive Officer Poovanathasamy Thirukovil Kovilpatti, Tuticorin District 

5.The Commissioner Kovilpatti Municipality Kovilpatti, Tuticorin District 

   ... Respondents

CORAM: HON'BLE JUSTICE T.S.SIVAGNANAM 

                 HON'BLE JUSTICE R.THARANI 

PRAYER: Petition filed under Article 226 of the Constitution of India, to issue a writ of certiorari calling for the records relating to the impugned order made by the third respondent in his proceedings in Na.Ka.No.A3/10177/2015 dated 24.09.2019 and quash the same as illegal. 

For Petitioner : Mr.Ajmal Khan, Senior Counsel for Mr. M.Mahaboob Athiff 

For Respondents : Mr.A.K.Baskarapandian Special Government Pleader for R1 to R3 & R5 

                          Mr. M.Muthu Geethayan for R4 in  W.P.(MD) No.21908 of 2019 etc. 

 COMMON ORDER 

T.S.SIVAGNANAM, J.

The reliefs sought for in all these writ petitions are identical and hence, the writ petitions were heard together and are disposed of by this common order.

2. W.P.(MD) No.21908 of 2019 is taken as a lead case and it would suffice to refer to the facts stated therein.

3. The petitioners have filed the writ petitions for issuance of a writ of certiorari to quash the order, passed by the Tahsildar, Kovilpatti Taluk, dated 24.09.2019, by which the Tahsildhar directed the petitioners to vacate the encroachments in the odai poramboke and also to remove the shops constructed by the fourth respondent Temple on the top of the odai. In the impugned order, there is a reference to an order, dated 12.09.2019, passed by this Court in W.P.(MD) Nos.19561 of 2019 etc. batch. The said writ petitions were filed challenging the eviction notice, dated 22.08.2019. The petitioners therein contended that the land is classified as “Grama Natham” and therefore, the provisions of the Tamil Nadu Land Encroachment Act are not applicable. The Court having found that the classification of the land is http://www.judis.nic.in  W.P.(MD) No.21908 of 2019 etc. batch “Odai”, held that the petitioners therein cannot remain in possession of the land. In the light of the said conclusion, the writ petitions were dismissed and an observation was made to the effect that if there is any encroachment, which is yet to be removed, the respondents shall remove the same completely within a period of fifteen days and seek Police assistance, if required. The third respondent has referred to this order and direction in the impugned notice.

4. Mr.Ajmal Khan, learned Senior Counsel, assisted by Mr.M.Mahaboob Athiff, learned counsel for the petitioners, submitted that the petitioners are small vendors and eking their livelihood by running petty shops and other small businesses and the shops have been leased out to them by the fourth respondent Temple, which is a Temple falling under the control of the Tamil Nadu Hindu Religious and Charitable Endowments Department. It is further submitted that Kovilpatti Town was originally an inam village and was in possession and enjoyment of the fourth respondent Temple. After the enactment of the Inam Estate Abolition Act, 1948, the inam was subjected to the provisions of the Act. It is submitted that there was a water channel called “Sevalkulam”, which was originally part of the inam, but after the 1948 Act, the water channel was vested with the Government.

5. It is further submitted that in the year 1958, a dispute arose between the Government of Tamil Nadu and the fourth respondent Temple with regard to the right over the shops and the channel. This culminated in an order passed by the Board of Revenue, dated 14.09.1960, holding that the channel belongs to the Government. With regard to the shops, it is submitted that the fourth respondent Temple was permitted to construct shops on permanent basis by erecting posts and pillars and conditions were also imposed. Pursuant to the same, the fourth respondent Temple had erected high pillars and constructed shops.

6. Further, it is submitted that during 2018, when there was an attempt made to demolish the shops, the Association in which all the traders were members, filed a writ petition in W.P.(MD) No.6436 of 2018 to forbear the respondents from in any manner evicting or demolishing the shops. This Court granted an order of injunction on 23.03.2018 and it is submitted that the said writ petition is still pending.

7. It is submitted that when the above is the factual situation, the third respondent is not justified in issuing the impugned notice treating the petitioners as encroachers especially, when he is fully aware of the pendency. Further, it is submitted that the writ petition in W.P.(MD) No.19561 of 2019 etc., batch were filed by the encroachers in a waterbody and they are not in lawful possession of the premises and therefore, the observations made in the said order can be applied to the encroachers in the waterbody and not the persons, like the petitioners herein.

8. Further, it is submitted that without resorting to the procedure under the provisions of the Tamil Nadu Land Encroachment Act, action could not have been initiated and the impugned notice is arbitrary and offending Article 14 of the Constitution of India. Further, it is submitted that the order passed by the Board of Revenue, under Section 19A of the Madras Estate (Abolition and Conversion into Ryotwari) Act, 1948 having attained finality, the same cannot be unsettled by the third respondent. On the above grounds, the learned Senior Counsel sought to set aside the impugned orders.

9. Mr.M.Muthu Geethayan, learned counsel for the fourth respondent Temple submitted that earlier the third respondent had issued notice under Section 7 of the Tamil Nadu Land Encroachment Act, on 18.03.2018, for which a suitable reply has been sent by the fourth respondent Temple on 03.04.2018 stating that the said notice is not sustainable in law  and it is contrary to the decision of the Board of Revenue, dated 14.09.1960, passed by the Settlement Commissioner. It is further submitted that this reply was not considered by the third respondent before issuing the impugned notice. It is submitted that all the writ petitioners are occupying 108 shops belonging to the fourth respondent Temple and the attempt by the third respondent / Tahsildar to evict them is unsustainable. The learned counsel for the fourth respondent referred to the relevant portion of the order passed by the Board of Revenue, dated 14.09.1960, which had been extracted in the counter affidavit.

10. Further, it is submitted that the said order had attained finality in terms of Section 64-C of the Act as no appeal or revision has been filed against the said order. Further, the other averments regarding the type of constructions put up by the fourth respondent Temple etc., as mentioned by the petitioners were reiterated. It is further submitted that the rent received from the shops is the major source of income for the fourth respondent Temple and the impugned notice if allowed to be enforced, it would cause great prejudice to the respondent Temple apart from being illegal. 

11. Further, it is submitted that the Board of Revenue has imposed conditions in its order, dated 14.09.1960, and the same have been strictly complied with by the fourth respondent Temple and in the absence of any breach of conditions, the Temple's right over the shops constructed on top of the odai cannot be interfered. Further, it is submitted that the fourth respondent Temple has complied with the directions issued in W.P.(MD) No. 122 of 2010 and has raised pillars to a height of 4 feet with regard to 22 shops.

12. Further, the learned counsel for the fourth respondent Temple submitted that there are three ooranies in Kovilpatti Town, of which one is in front of the Temple, which has been used by the Tamil Nadu Housing Board to put up residential buildings. The other oorani has been converted into a commercial complex, which has now been demolished by the fifth respondent Municipality and there is also a Primary Health Centre as well as a dumping- yard of the fifth respondent Municipality. The third oorani has been converted into Uzhavar Santhai. Therefore, it is submitted that as on date, there are no ooranies in Kovilpatti Town. With regard to the supply channel, a regular desilting work is being done and the fourth respondent Temple is maintaining the free flow of water in the odai by strictly complying with the conditions imposed by the Settlement Commissioner on 14.09.1960.

13. Further, in the counter affidavit, the details regarding the various tenants and which of those tenants have been recognized by the Temple etc. have been mentioned. Further, it is submitted that as on date, the Temple is collecting rent from 103 shops and many of them are not legally recognized as tenants and some of them are the legal heirs of the tenants, who have been recognized and the some of them have purchased the shops without intimation to the Temple, who are also remitting rent to the Temple. Pages 25 to 28 of the counter affidavit contain a list of tenants. On these grounds, the fourth respondent Temple supports the case of the writ petitioners as they are tenants of the Temple.

14. Mr.A.K.Baskarapandian, learned Special Government Pleader appearing for the respondents 1 to 3 submitted that the third respondent being a public authority is bound to prevent the illegal encroachment of a Government property, especially in a water course, for which purpose, proceedings under the Tamil Nadu Land Encroachment Act were initiated and 25 encroachers have been vacated. The writ petitions filed by them in W.P. (MD) No.19561 of 2019 etc., batch were dismissed. In the said order, there was a direction to remove the other encroachments and therefore, notices were issued to the shops built on Sevalkulam Odai encroaching the water course.

15. It is further submitted that in terms of the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948, rivers and ponds have been transferred to the Government in terms of Section 3(b) of the said Act. It is further submitted that the fourth respondent Temple has no legal right over the odai as the same belongs to the Government and all types of inams have been abolished.

16. Further, it is submitted that the conditions laid down by the Board of Revenue have not been followed by the fourth respondent Temple, condition Nos.6 and 7 have been violated and when there is a breach, even as per the order passed by the Board of Revenue, permission can be revoked. Further, it is submitted that the procedure under the Land Encroachment Act had been violated and notice had been issued under Section 7 of the Act. It is submitted that as per the revenue records, T.S.No.139 in Ward-B, Block No. 10; T.S.No.214, in Ward-C, Block No.3; T.S.No.286, in Ward-C, Block 20 and T.S.No.337, in Ward-C, Block No.20 are classified as odai (Sarkar Poramboke). It is submitted that the shops have been constructed on top of the odai and the free flow of the water has been completely blocked by all types of wastes and it is completely covered and the averments made by the fourth respondent Temple are absolutely false. As a result of the odai being completely blocked, the rain water flows in the main road causing nuisance and health hazard.

17. Further, it is submitted that as per the order of the Board of Revenue, only 93 structures were situated in the supply channel, whereas the fourth respondent Temple claims that there are 108 structures. The learned Special Government Pleader relied on the decision of the Honourable Full Bench of this Court in the case of T.K.Shanmugam vs. State of Tamil Nadu, reported in 2015 (6) CTC 369 and the decision of the Honourable Supreme Court in the case of Jagpal Singh vs. State of Punjab, reported in 2011 (11) SCC 396. On the above grounds, the learned Special Government Pleader seeks to sustain the impugned eviction notices.

18. After elaborately hearing the learned counsels for the parties, the following facts emerge as undisputed facts. The shops, which have been erected by the fourth respondent Temple, are admittedly on top of the water supply channel. Obviously, such construction is impermissible as on date in batch the light of the various statutory provisions of the law laid down by the Honourable Supreme Court and this Court.

19. That apart, there is a duty cast upon the State to protect these supply channels and waterbodies and none can act in violation of this duty. Such a duty is cast upon the fourth respondent Temple as well more so, because it is a Temple falling under the control of the H.R. & C.E.Department. Therefore, the fourth respondent Temple cannot take a stand as if it is a private landlord and raise a plea to justify their action in putting up shops over a water supply channel.

20. The case of the fourth respondent Temple rests upon the permission granted by the then Board of Revenue in its order dated 14.09.1960, while implementing the provisions of the Act 26 of 1948. This order came to be passed in a claim made under Section 18(4) of the Act 26 of 1948.

21. The Settlement Commissioner, after hearing the parties before him, had conducted an inspection of the shops and passed the order. In the order, there is a clear finding that the odai is a communal poromboke falling under Section 3(16)(a) of the Estates Land Act. The fourth respondent Temple argued that in terms of Section 18(4) read with Section 18(5) of the Act, the site on which the building stands as well as any adjacent premises occupied as an appurtenance thereto would vest in the owner of the building automatically, whatever may have been the position, immediately before the notified date. This argument was rejected by the Settlement Commissioner holding that Section 18(1) to (4) would apply not only to the building proper, but also to the sites on which they stand and to any adjacent premises occupied as appurtenances to the buildings.

22. Further, it was held that for a building to vest in a private person, the essential condition of ownership immediately before the notified date laid down in Section 18(4), must be satisfied. The words “belonging to” are used in Section 18(4). Further, it was held that for the vesting under Section 18(1) or (2) or (4) in respect of the site on which the building stands or in respect of the appurtenant premises, the vital condition of “ownership immediately before the notified date” applied equally as in the case of the building proper. The abolition Act does not make a gift of any land to any one if he had no rights in that land before the notified date. The building may have been constructed on a land belonging to another person and taken from him on long lease, say-a lease for 99 years. It can hardly be argued that Section 18(5) means that, even in such a case, the owner of the limit will loss his ownership of the building from the notified date. In such a case, the building will under Section 18(4) vest in the person who owned it immediately before the notified date, subject to the rights of the owner in respect of the land. The effect of Section 18(5) is that, in such a case, the site on which the building stands will vest in the person who owned it (site) immediately before the notified date. The legal position in regard to the vesting of the adjacent appurtenant premises is exactly the same.

23. After rendering the above findings, the Settlement Commissioner noted that the odai is a communal poramboke land, the land of a description mentioned in Section 3(16)(a) of the Estates Land Act; the odai has been functioning as a supply channel to an irrigation tank and is still required for that purpose; it is not an abandoned poramboke land. Therefore, the fourth respondent Temple cannot claim that it was the owner of the bed of the odai immediately before the notified date and in respect of a land of this kind, the landholder is bound by Section 20A of the Estate Land Act and he cannot use it for any other purpose for which it has been set apart. Further, the Settlement Commissioner held that in terms of Section 20-A(2) of the Estate Land Act, the fourth respondent Temple cannot even claim the use of the odai for fixing up posts and pillars for supporting the structures and cannot claim ownership within the meaning of Section 18 of the said Act in respect of the communal poromboke land.

24. A plea of adverse possession was raised by the fourth respondent Temple, which was rejected by the Settlement Officer. Thus, it was held that the fourth respondent Temple was not the owner of any portion of the odai immediately before the notified date and accordingly, only the structures proper vest in it and not any portion of the odai immediately before the notified date nor any portion of the adjacent appurtenant premises. The appurtenant land is a trunk road and the fourth respondent Temple is not the owner of that either immediately before the notified date. Thus, it was held that the odai and road vest in the Government absolutely free of all encumbrances under Section 3(b) of the Abolition Act. After deciding the application filed by the fourth respondent Temple under Section 18(4) of the Act, against the Temple, the Settlement Commissioner applying equitable conditions referred to Section 19-A of the Abolition Act and issued certain directions, which are as follows:

“The Devasthanam is granted permission, on a permanent basis, to have the supporting posts and pillars imbedded in the Sevalkulam odai, subject to the conditions specified below:-

(1) The posts and pillars should be constructed of such material and imbedded in such manner as may be specified by the District Collector.

(2) The other structures which are put up should be of such type and constructed of such material as may be specified this behalf by the District Collector.

(3) The Devasthanam shall leave such openings in the constructions put up by it, or make such other arrangements as may be specified by the District Collector in this behalf, in order to enable the Government to carry out any repairs or other works which they deem necessary for the efficient maintenance of the Sevalkulam odai as a supply channel to the Sevalkulam tank or as may be required in the interest of the public health of the town or in the interest of the adjoining Trunk Road.

(4) The existing posts, pillars and structures should be reconstructed within a reasonable time specified by the District Collector so as to be in confirmity with the specification laid down by the District Collector vide conditions (1) to (3) above.

(5) Officers of the Government shall have the right to inspect the portions of the odai below the structures at all times.

(6) There shall be no interference with the functioning of the Sevalkulam odai as a supply drainage or sewage channel, either by the Devasthanam or by any of its tenant occupying the shops.

(7) For each fasali year, commending with the fasli year in which the Kovilpatti inamstate was notified, the Devasthanam should pay to the Government ground rent, at the rate of ground rent in force for the time being in Kovilpatti town, for each portion of the Sevalkulam odai which is verified below any structure constructed by the Devasthanam.

(8) The Board of Revenue may revoke the permission hereby granted if there is a breach of any of the above conditions.

The Special conditions (1) to (6) above have been imposed as I consider them necessary in the public interest.”

25. The fourth respondent Temple was required to give their acceptance to the conditions within a specified time. It appears that the Temple agreed for the said conditions and presumably for such reason, no action was taken earlier.

26. In the light of the above facts, the plea raised by the fourth respondent Temple, as if it is a rightful owner, entitled to put up shops by erecting pillars over the odai, requires to be outrightly rejected. The claim made by the fourth respondent Temple under Section 18(4) of the Abolition Act was rejected. However, the Settlement Commissioner took a sympathetic approach, because most of the shops were erected using wooden planks with sides covered by tin sheets and thatched roofs. Thus, what was granted to the fourth respondent was a permission. A permission cannot be construed as having conferred unfettered right to be in possession and enjoyment. At best, a permission can be a licence to occupy. A licence issued in favour of the fourth respondent Temple is terminable at the option of the State Government. There is no vested right with the fourth respondent Temple to state that they will continue to hold the shops by constructing on top of the water supply channel, which is as of now fully blocked with wastes, as a result of which, the heart of Kovilpatti Town gets flooded even when there is a little rain fall.

27. The conditions mentioned in the order of the Settlement Commissioner imposed strict conditions that the supply channel should not be interfered; the ground rent has to be paid to the Government; the officers of the Government have right to inspect the channel; the materials used for posts and pillars could be as per the specifications of the District Collector. The type of construction has also been mentioned, where openings have to be left to enable the maintenance of the supply channel etc. The Board of Revenue reserved its right to revoke the permission, if there is breach of any conditions.

28. The photographs produced before us clearly show that there has been a clear abuse and wholesale violations of the conditions stipulated in the order. The shops are pucca shops. The entire supply channel has been fully covered, pucca shops have been constructed and the entire area is covered with filth.

29. The argument of the learned counsel for the fourth respondent was so-highly pitched by contending as if the fourth respondent Temple is the rightful owner of the property. Unfortunately, the Executive Officer of the Temple within the control of H.R. & C.E.Department cannot take such a stand. There can be no conflict of interest in the instant case between the Tahsildar and the Executive Officer. The land vests with the Government. This is clear from the order of the Board of Revenue. The Temple was permitted to put up posts and pillars and erect small shops to sustain its income. This permission / licence is terminable at any point of time more so when it is found that the conditions have been violated. Therefore, the argument made by the writ petitioners and the Executive Officer of the fourth respondent Temple as if they have a vested right to continue, is an argument which has to be outrightly rejected.

30. Once the land in question, which is classified as odai, vests with the Government, the Government is entitled to resume the land and restore it to the original position. The permission granted is revokable at any point of time and the permission being a licence cannot be specifically enforced nor the fourth respondent Temple can plead for restitution of the licence. This being the factual and legal position, the appropriate action that should be done by the Government is to cancel the permission granted to the Temple. This should have been done by adopting the proper procedure. After the decision of the Honourable Full Bench in the case of T.K.Shanmugam (supra), it would not lie in the mouth of the fourth respondent Temple to state that they will continue to hold the shops, pollute the channel and consequently, contribute to the flooding of Kovilpatti Town. 

31. In the case of T.K.Shanmugam (supra), the Court held that if the Government Orders seek to regularize illegal encroachment in tank-beds, water channels or area abutting, those Government Orders are deemed to have been superseded in the light of the directions issued by the Honourable Supreme Court in the case of Jagpal Singh (supra). Thus, by harping upon the order of the Board of Revenue, the fourth respondent Temple cannot improve its case and argue against the State Government especially, when it has been held that the land vests with the Government.

32. The argument of the learned counsel for the fourth respondent Temple is that three other waterbodies in Kovilpatti Town, which are no longer waterbodies. We do not see any substance in the argument, because on account of the thoughtless exercise by the Government officials, we have lost waterbodies that can hardly be treated as an example to give a seal of approval to continue to block a water supply channel. In the case of T.K.Shanmugam (supra), the observations are to the effect that the waterbodies have to be restored and even if there is no water in the waterbodies, it is not a ground to convert the classification.

33. The minor error committed by the Tahsildar is to issue eviction notice to the petitioners. In fact, the Tahsildar need not recognize the petitioners as it is the Temple, which is stated to have been granted the permission. If the permission granted in favour of the Temple is to be cancelled, it goes without saying that the petitioners will also have to fail. Thus, the petitioners have no independent or indivisible right as pleaded in the writ petitions. In other words, they shall rise or fall along with the fourth respondent Temple.

34. We cannot close our eyes to a situation, where shops are erected on top of a water supply channel and gradually, the entire channel has become a dump-yard and what little water flows is only sewage and drainage water. Therefore, the authorities, namely, Revenue Administration and the Municipality have to act and the fourth respondent Temple cannot be a stumbling block for any step being taken by the Revenue Administration and the Local Body in the interest of the public. Commercial consideration appears to be waved in the minds of the fourth respondent Temple. This is not a criteria to be applied while testing a case relating to destruction of a water supply channel. Thus, we are of the considered view that the case as projected by the fourth respondent Temple and adopted by the writ petitioners cannot in any manner assist them.

35. The fact situation would clearly show that the conditions imposed by the Board of Revenue have been violated by the fourth respondent Temple. Even in the counter affidavit, the Temple admits that several persons are not the licencees and it is not clear as to why the Temple has not taken any action to evict those persons. As many as 32 persons are stated to be in occupation without any licence. 31 persons are stated to be the legal heirs of the original licencees, however, no fresh licence has been issued in their names. That apart, the fourth respondent Temple cannot transfer it to the legal heir, because a licence is not transferable. 27 writ petitioners are stated to be the original licencees. That apart, we find that the licence fee, which is stated to be collected on daily basis is very low considering the area where the shops are located.

36. Thus, we do not appreciate the stand taken by the fourth respondent Temple and the permission granted by the Board of Revenue does not in any manner elevate the status of the Temple as the owner of the supply channel or the owner of the superstructure put up over it. The demur of the order passed by the Board of Revenue will clearly show that such permission was granted on equitable consideration as there were small traders, who used wooden posts / pillars and put up small wooden planks. What we find from the photographs produced by the learned counsel for the fourth respondent is pucca concrete shops and there is hardly two feet gap between the road and the floor of the shops and in between the so-called odai is seen. Thus, the conditions stipulated by the Board of Revenue have not been adhered to.

37. As we have already pointed out, the minor error committed by the Tahsildar is to issue notices to the writ petitioners and the proper procedure that should have been adopted is to issue notice to the fourth respondent and thereafter, proceed in accordance with law. Thus, on this technical ground, we are inclined to interfere with the matter.

38. In the light of the above, the writ petitions are allowed and the impugned notices are quashed and the competent Authority of the Government is directed to issue notice to the fourth respondent Temple calling upon them to explain as to why the permission granted by the Board of Revenue, dated 14.09.1960, can no longer subsist on account of vesting of the water supply channels and waterbodies with the Government and as to why the permission granted should not be revoked for violations of the conditions etc. This notice shall be issued to the fourth respondent Temple within a period of three weeks from the date of receipt of a copy of this order. The fourth respondent Temple is granted three weeks time from the date of receipt of notice to submit their reply. Upon considering the reply, the competent Authority of the State Government shall pass orders on merits and in accordance with law within a period of six weeks therefrom. An opportunity of hearing shall be given to the persons, who are the licencees of the fourth respondent Temple and the others have no right to be heard in the matter. This order and direction shall be scrupulously complied with and any slackness on the part of the officials would lead to the presumption that the State has abdicated its duty in protecting the water supply channels / waterbodies etc. No costs. Consequently, connected miscellaneous petitions are closed.

20.12.2019