IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.09.2022
CORAM :
THE HON'BLE MR.MUNISHWAR NATH BHANDARI, CHIEF JUSTICE
AND
THE HON'BLE MRS.JUSTICE N.MALA
W.P.No.23104 of 2022
Indra Nagar Residents' Welfare Association
Rep. by its Vice President R.Vijayakumar
No.13, Indra Nagar, Cuddalore Road
Vrithachalam Taluk
Cuddalore District. ... Petitioner
Vs.
1. The District Collector
Vridhachalam Taluk
Cuddalore District 607 001.
2. The Revenue Divisional Officer
Vridhachalam Taluk
Cuddalore District.
3. The Tahsildar
Vridhachalam Taluk Office
Vridhachalam Taluk
Cuddalore District.
4. The Commissioner
Municipality Office
Vridhachalam Taluk
Cuddalore District. ...Respondents
Prayer: Petition filed under Article 226 of the Constitution of India
praying for a writ of Certiorarified Mandamus calling for the records
relating to the impugned order of the fourth respondent, namely the
Commissioner, Municipality Office, Vridhachalam, Cuddalore District, in
his proceedings bearing No.Na.Ka.No.4606/2018/F1 dated
22.07.2022, quash the same and consequently, to direct the
respondents herein to allot any alternative site or adjacent to the
comprising S.No.204 situated at Indra Nagar, Vridhachalam.
For the Petitioner : Mr.D.Daniel
For Mr.T.Nithya
For the Respondents : Mr.J.Ravindran
Additional Advocate General
Assisted by
Mr.A.Selvendran
Special Government Pleader
ORDER
(Order of the Court was made by the Hon'ble Chief Justice) The writ petition has been filed challenging the notice dated 22.07.2022 mainly on the ground that the land occupied by the members of the petitioner Association is not waterbody, but sarkar poramboke and therefore, the respondents have erroneously issued the notice stating that the land is a waterbody.
2. Learned counsel for the petitioner Association submits that the members of the petitioner Association are residing in the land in question for the past 70 years and therefore, notice should not have been effected on them and hence, a prayer is made to set aside the impugned notice.
3. Learned counsel sought time on the previous occasion to furnish an undertaking to remove the encroachment within a month and therefore, the matter was adjourned for today. But, instead of giving an undertaking, learned counsel for the petitioner has placed on record certain documents to prove the right of the members of the petitioner Association to possess the land. However, he could not refer to any title document to prove lawful occupation of the land, by either producing patta or assignment or any other document which may show right in favour of the members of the petitioner Association to possess the land.
4. The documents produced are revenue receipts and other documents which cannot form basis to even claim title over the land. He even failed to refer any document to show that S.No.204, for which notice has been given, is not a land of waterbody, but sarkar poramboke. The said document has now been furnished, but is not a revenue document.
5. In view of the above, the members of the petitioner Association have failed to show their title to the land in question so as to possess it, even if it is a sarkar poramboke, i.e. Government land. We do not find any document to show that S.No.204 is Sarkar poramboke. That apart, the respondents are taking action pursuant to the order of this Court in W.P.No.31168 of 2017 decided by order dated 30.11.2017. The petitioner Association did not file any application to seek recall of the order or to review the order. Even they failed to prove their right over the land, when we provided an opportunity for the same.
6. At this juncture, it would be appropriate to refer to the decision of the Apex Court in the case of Joginder v. State of Haryana, (2021) 3 SCC 300, wherein it has been emphatically held as under:
"13. It is required to be noted that the persons in illegal occupation of the Government Land/Panchayat Land cannot, as a matter of right, claim regularization. Regularization of the illegal occupation of the Government Land/Panchayat Land can only be as per the policy of the State Government and the conditions stipulated in the Rules. If it is found that the conditions stipulated for regularisation have not been fulfilled, such persons in illegal occupation of the Government Land/Panchayat Land are not entitled to regularization. .....
14. At this stage, the decision of this Court in the case of Jagpal Singh v. State of Punjab, (2011) 11 SCC 396, is required to be referred to. In the said decision, this Court had come down heavily upon such trespassers who have illegally encroached upon on the Gram Sabha/Gram Panchayat Land by using muscle powers/money powers and in collusion with the officials and even with the Gram Panchayat. In the said decision, this Court has observed that "such kind of blatant illegalities must not be condoned". It is further observed that "even if there is a construction the same is required to be removed and the possession of the land must be handed back to the Gram Panchayat". It is further observed that "regularizing such illegalities must not be permitted because it is Gram Sabha land which must be kept for the common use of the villagers of the village". Thereafter, this Court has issued the following directions:
'23. 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/unauthorized occupants of Gram Sabha/Gram Panchayat/ Poramboke/ Shamlat 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 occupant, after giving him a show cause notice and a brief hearing. 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 this 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.' In view of the above also, the prayer of the Petitioners for regularization of their illegal occupation of the panchayat land cannot be accepted."
[emphasis supplied]
7. The decision in Joginder v. State of Haryana, supra, reiterated the view enunciated in Jagpal Singh v. State of Punjab, (2011) 11 SCC 396. In terms of the directions contained in the case of Jagpal Singh v. State of Punjab, supra, it is the bounden duty of the State Government concerned to ensure restoration of such lands for the common use of villagers of the village concerned. The State Government is obligated to make earnest efforts to restore every piece of illegally occupied land which would fall within the orders and directions issued in the case of Jagpal Singh v. State of Punjab, supra.
8. The mushroom growth of encroachment in the waterbody is affecting the environment. It is the bounden-duty of the officials of the Revenue Department to preserve and protect government lands which have been reserved for specific purposes. It is trite that when a person is a rank encroacher without any valid right or title over the land belonging to the government, the court should not permit or protect the continued illegal occupation of the land.
9. In the light of the aforesaid and in view of the fact that the order passed by this Court in the year 2017 is yet to be complied and finding no title or right of the members of the petitioner Association in the land in question, we do not find any reason to cause interference with the impugned notice. Accordingly, the writ petition is dismissed. There will be no order as to costs. Consequently, WMP Nos.24349 and 24350 of 2021 also dismissed.
(M.N.B., CJ.) (N.M., J.)
02.09.2022
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