Citation Codes

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Case Number

W.P Nos. 10748, 12714 to 12717 of 1998 and W.M.P Nos. 16409 19387 to 19390 of 1998

Attorney(S)

Mr. V. Raghavachari, Advocate for Petitioners in W.P No. 10748 of 1998. Mr. N. Murali Kumaran, Advocate for Petitioners in W.P Nos. 12714 to 12717 of 1998.
Mr. P. Srinivas, Advocate for Respondent.

Judges

S. Jagadeesan
J

Acts

Sections 7 and 6 of the Land Encroachment Act

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The opinion concerns multiple writ petitions arising from occupation and construction on Government (puromboke) land at S.F. No. 39/3, Paruthipattu village, Poonamallee Taluk, Thiruvallur District. By an order dated 28.7.1998, the petitioner in W.P. No. 10748 of 1998 was directed to give notice to the standing counsel for the respondent and the matter was listed for 13.8.1998 with a direction to maintain status quo until then. The respondent filed a counter-affidavit and the matter was taken up for final disposal.

The petitioners (several individuals, including four petitioners in W.P. No. 10749 of 1998) claim peaceful possession of the land where they constructed houses; they allege assessment for property tax and that they obtained electricity and telephone connections. The respondent municipality seeks eviction, contending the land (classified as maichal puromboke) is required for public use (road widening and parking) and that eviction proceedings were initiated jointly with the Revenue Authorities after issuing notices under Sections 6 and 7 of the Land Encroachment Act. Portions of the encroachment were removed on 1.8.1998 and 2.8.1998.

The Court's record refers to earlier litigation: W.P. No. 11378 of 1986 (filed by an association) which was dismissed on 12.12.1996 with a direction that Revenue Authorities must follow the procedure under the Act, and W.P.Nos. 16269 to 16277 of 1997 which were dismissed on 19.1.1998 on the ground that the land was required for public purpose. Some petitioners submitted individual affidavits undertaking to hand over possession if a genuine public cause is shown.

Legal Issues Presented

Whether the respondent municipality has jurisdiction to initiate and carry out eviction proceedings against occupiers of Government (puromboke) land that has not been vested with the municipality.
Whether the petitioners are entitled to a writ of mandamus restraining the respondent from interfering with their possession and enjoyment of the disputed land.
Whether the statutory notices issued by the Revenue Authorities under Sections 6 and 7 of the Land Encroachment Act satisfy procedural requirements to permit eviction, and whether prior notice or allocation of alternate sites (as invoked by the petitioners relying on Olga Tellis) is required in the present circumstances.

Arguments of the Parties

Petitioners' Arguments

The disputed land belongs to the Government and has not been vested with the Municipality; therefore the Municipal Authorities lack jurisdiction to effect eviction.
The eviction proceedings initiated by the respondent are arbitrary and without jurisdiction.
The petitioners relied on Olga Tellis v. Bombay Municipal Corporation to argue that occupiers should be given notice in advance and, where possible, alternative sites because eviction may deprive occupiers of their livelihood.
Some petitioners filed affidavits stating they would hand over possession if a genuine public cause were shown by the Government (a conditional undertaking).

Respondent's Arguments

The land is maichal puromboke and though under Revenue control, the Revenue Authorities permitted the municipality to initiate eviction proceedings because the land is required for public purposes (widening a main arterial road leading to defence establishments and staff quarters, and providing parking).
Notices under Sections 6 and 7 of the Land Encroachment Act were issued by Revenue Authorities and a major portion of encroachment had been removed previously; eviction is necessary due to congestion and reduced road width.
Earlier writ petitions challenging removal were dismissed; therefore petitioners cannot now contend the municipality lacks jurisdiction or that eviction should be prevented, particularly where the eviction proceedings were initiated jointly by the municipality and the Revenue Authorities.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180; (1985) 3 SCC 545	The proposition that occupiers should, before eviction, be given advance notice and, where possible, alternative sites because eviction may deprive them of livelihood.	The court noted this principle but held that the Supreme Court's pronouncement "may not help the petitioners' case" on the facts before it.
Bihar Eastarn Gangetic Fishermen Co-operative Society Limited v. Sipahi Singh and others, AIR 1977 SC 2149	The opinion records that principles from this case were referred to in an earlier judgment considered by the Court.	Referenced by a prior order (W.P. Nos. 16269–16277 of 1997); that prior order ultimately held encroachers were not entitled to relief and trespassers could be evicted.
A.P Christians Medical Educational Society v. Government of Andhra Pradesh and another, AIR 1986 SC 1490	Listed among authorities referred to by the prior judgment discussed in the opinion.	Referred to in the earlier judge's reasoning which supported dismissal of earlier writ petitions; used as part of the legal backdrop affirming removal of encroachments.
Chief Secretary and others v. Mathai Koriakose and others, AIR 1989 Ker. 1 13	Included among the precedents referenced by the earlier judgment considered by the Court.	Part of the cluster of authorities that the earlier judgment relied upon in concluding encroachers could be evicted; this opinion cites that prior reliance.
Ranjan Kumar Halder and others v. C.M.D.A and others, 1997 (1) Cal. W.N 240	Referenced by the prior order as part of the principles considered.	Used in the earlier decision that the Court relied upon in dismissing prior writ petitions challenging eviction.
Lalla Yeshwant Singh v. Rao Jagadish Singh, AIR 1968 SC 620	Included in the list of authorities referred to by the earlier judgment.	Part of the prior court's reasoning cited in the opinion which supported eviction of trespassers/encroachers.
K.K Varma v. Union of India, AIR 1954 Bom. 358	Also listed among authorities referenced by the earlier judgment.	Included in the prior court's analysis relied upon by the respondent to support eviction of encroachers.
Ahmedabad Municipal Corpn. v. Nawab Khan Gulab Khan, AIR 1997 SC 152	Principles on removal of encroachments: immediate removal is permissible for recent encroachments; for long-standing encroachments occupiers should be granted a reasonable time (the Court noted a minimum of 10–14 days) and that alternate allotment is not an automatic or fundamental right.	The Court relied on these principles to conclude that eviction action in the present case was not violative of the principles of natural justice and that petitioners, being trespassers, were not entitled to alternate allotments; this authority supported dismissal of the writ petitions.

Court's Reasoning and Analysis

The Court proceeded by addressing the parties' contentions and applying the applicable legal principles and prior decisions recited in the record. The analysis unfolded in the following steps, limited to what the opinion states:

The Court accepted as undisputed that the petitioners occupied Government puromboke land and had constructed houses; however, long possession alone does not confer a right to resist eviction by writ of mandamus.
The petitioners' reliance on Olga Tellis was considered but the Court observed that such authorities must be read in context and concluded that the Olga Tellis principles did not assist the petitioners on the facts of this case.
The Court emphasised that when petitioners assert the Government as owner, they should have impleaded the Revenue Authorities to ascertain the Revenue Authorities' position; without impleading them, petitioners cannot successfully contend the municipality lacks authority to initiate eviction proceedings.
The respondent filed a counter-affidavit showing that the Revenue Authorities had issued notices under Sections 6 and 7 of the Land Encroachment Act and that eviction had been carried out in large part previously; once statutory notices were issued, petitioners could not prevent eviction proceedings initiated jointly by the municipality and Revenue Authorities.
The Court reviewed earlier dismissals of similar writ petitions (W.P. Nos. 11378 of 1986 and 16269–16277 of 1997) where a prior judge had relied on a number of precedents and held that encroachers were not entitled to relief and trespassers could be evicted; the present petitions were found to be on the same principle.
Addressing the petitioners' specific contention that the municipality lacked jurisdiction, the Court observed that most encroachers (over 150 of 159) had already been evicted and the land resumed for public use; a technical jurisdictional plea by the remaining petitioners should not stall public use of space.
The Court relied on Ahmedabad Municipal Corpn. v. Nawab Khan Gulab Khan for the procedural standards concerning encroachment removal: immediate action for recent encroachments and reasonable short notice (minimum of ten days to two weeks) for long-standing encroachments; the Supreme Court also held that alternate allotment is not an entitlement for trespassers.
Applying the above, the Court concluded the petitioners—having been issued statutory notices and being treated as encroachers/trespassers whose removal was necessary for public purposes—were not entitled to restrain eviction by writ.

Holding and Implications

Holding: The Court's final decision was that the writ petitions are dismissed.

Implications:

The direct effect on the parties is that the petitioners are not granted a writ of mandamus restraining eviction; eviction proceedings initiated jointly by the Revenue Authorities and the Municipality may proceed.
W.P. No. 10748 of 1998 was dismissed; W.P. Nos. 12714 to 12717 of 1998 were also dismissed as the order in W.P. No. 10748 of 1998 covered the issues involved. The interlocutory applications (W.M.P.Nos. 16409, 19387 to 19390 of 1998) were dismissed. The Court ordered no costs.
The Court reiterated established principles (as reflected in the cited Supreme Court authority) that recent encroachments can be removed immediately, while long-standing encroachments should be given short reasonable notice; trespassers are not entitled to alternate allotments as a matter of right.
Beyond adjudicating the petitions, the Court made administrative observations and directed the Government to issue instructions to district heads to prevent encroachments and to restrain government undertakings (e.g., Electricity Board and Local Bodies) from providing connections or facilities to properties on Government land unless satisfied of lawful ownership — with the aim of preventing dual litigation and protecting public property. These directions are administrative in nature rather than the creation of a novel legal precedent.

Note: This summary is restricted to and based only on information explicitly contained in the provided opinion. No additional facts or inferences beyond the text have been introduced.

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N. Arunachalam And 7 Others Petitioners v. The Avadi Municipality Rep. By Its Executive Officer, Avadi

1. By order dated 28.7.1998, the petitioner in W.P No. 10748 of 1998 was directed to give notice to the standing counsel for the respondent and directed the said Writ Petition to be posted in the list on 13.8.1998 Till then, the respondent has been directed to maintain the status quo. Since the respondent has filed the counter affidavit, the matter was taken up for final disposal.

2. The petitioners in W.P No. 10749 of 1998, four in number, filed the said Writ Petition for the issuance of a writ of mandamus forbearing the respondent from interfering with the petitioners' peaceful possession and enjoyment of the property situate at S.F No. 39/3, Paruthipattu village, Poonamallee Taluk, Thiruvallur District except otherwise in accordance with law.

3. Admittedly, the petitioners are in occupation of the Government land and they have put up construction. It is the case of the petitioners that the house property constructed by them had been assessed for property tax and they have obtained electricity connection, telephone connection and now the respondent municipality is trying to evict them forcibly. Hence the present writ petition.

4. The respondent has filed a counter affidavit stating that the land is situated adjacent to heavy vehicle factory at Avadi and since the place is required for public use, eviction proceedings had been initiated. The road under dispute is a main arterial road leads to the Defence establishments in Avadi and also for the residential quarters of the staff.

5. The respondent further stated that the Government puromboke land is classified as maichal puromboke and necessary notices under Sections 7 and 6 of the Land Encroachment Act had been issued to the petitioners by the Revenue Authorities and the major portion of the encroachment had been removed on 1.8.1998 and 2.8.1998 On the earlier occasion, the encroachments were removed, but an association by name Iykiya Viyabarigal Sangam filed W.P No. 11378 of 1986 and obtained an ex parte interim order and thereafter pursuant to the interim order once again, encroached upon the place and put up pucca construction.

6. This Court, by order dated 12.12.1996, dismissed the said writ petition W.P No. 11378 of 1986 with a direction that the Revenue Authorities must follow the procedure under the said Act. Having failed in the said writ petition, the members of the association, in groups, filed W.P.Nos 16269 to 16277 of 1977, which were also dismissed by this Court on 19.1.1998, as the land is required for the public purpose, viz., for widening the road and also to provide parking lots.

7. The petitioners have filed individual affidavit stating as follows:-

“I have filed the W.P to protect my possession. However, without prejudice to my contentions, I undertake to hand over possession of the property, if a genuine public cause is shown by the Government.”

8. The only contention of the learned counsel for the petitioners is that the disputed land belongs to the Government and the same has not yet been vested with the Municipality and as such, the Municipal Authorities have no jurisdiction to resort to eviction of the petitioners, and the eviction proceedings initiated by the respondents are arbitrary and without jurisdiction.

9. On the contrary, learned counsel for the respondent contended that though the lands are classified as maichal puromboke by the Revenue Authorities and the lands are under the control of the Revenues Authorities for the purpose of ownership and control, the Revenue Authorities had permitted the respondent to initiate eviction proceedings against the encroachers, as the place is required for public use. Because of the encroachments, the width of the road reduced to 20 ft. and the same is causing high congestion due to heavy movement of the people as well vehicles in that place.

10. In view of the dismissal of the earlier writ petitions, it is not open to the petitioners to contend that the respondent cannot resort to the eviction proceedings. Further the Revenue Authorities have also issued a statutory notice as required under the said Act. The petitioners, without challenging the said notice, cannot stop or prevent the eviction proceedings initiated by the respondent jointly with the Revenue Authorities.

11. I have carefully considered the contentions of counsel for either side. There is no dispute with regard to the fact that the petitioners are occupiers of the Government puromboke land. Merely because the possession is for considerably a long period, that may not confer a right on the petitioners seeking a writ of mandamus directing the respondent not to interfere with the possession.

12. In fact, the learned counsel for the petitioners relied upon the judgment in Olga Tellisv Bombay Municipal Corporation, AIR 1986 SC 180: (1985) 3 SCC 545 and contended that before ever any eviction proceedings is initiated, the occupiers must be given a notice in advance and as far as possible, they should also be provided with alternate site, since by the eviction proceedings, the occupier are deprived of their livelihood.

13. The law laid down in each case has to be looked into in the context of the particular case and at times, the same cannot be uniformly taken for all circumstances. Considering the facts of the present case, I am of the view that the principles laid down by the Supreme Court in the said pronouncement may not help the petitioners' case.

14. The main grievance of the petitioners in this case is that the respondent municipality has no jurisdiction to evict the petitioners. When the petitioners claim that the Government is the owner of the property, they are expected to implead the revenue authorities in order to ascertain the views of the revenue authorities. Without impleading the revenue authorities, I am of the view that it is not open to the petitioners to contend that the respondent herein has no authority to resort to eviction proceedings.

15. From the counter affidavit filed by the respondent, it is very clear that the revenue authorities have issued necessary notices, as required under the provisions of the said Act. When once the revenue authorities have issued notices requiring the petitioners to vacate and hand over possession, as the place is required for public purpose, it is not open to the petitioners any longer to contend that the revenue authorities are not taking any steps to evict the petitioners and as such, the respondent herein has no jurisdiction to interfere with the possession and enjoyment of the petitioners.

16. As pointed out by the learned counsel for respondent, this Court dismissed the writ petitions of WP. Nos 16269 to 16277 of 1997 and 11378 of 1986. Admittedly, the earlier writ petition W.P No. 1 1378 of 1986 is filed by the Sangam. This Court dismissed W.P No. 11378 or 1986 with a direction that the occupiers must be given due notice. After the notice, some of the occupiers filed W.P No. 16269 to 16277 of 1977 wherein this Court has considered elaborately the contentions of the parties and dismissed the Writ Petitions by order dated 19.1.1998 The Honourable Mr. Justice S.S Subramani in the said order, has referred to the principles laid down in The Bihar Eastarn Gangetic Fishermen Co-operative Society Limited v. Sipahi Singh and others, AIR 1977 SC 2149. A.P Christians Medical Educational Society v. Government of Andhra Pradesh and another, AIR 1986 SC 1490, Chief Secretary and others v. Mathai Koriakose and others, AIR 1989 Ker. 1 13, Ranjan Kumar Halder and others v. C.M.D.A and others, 1997 (1) Cal. W.N 240. Lalla Yeshwant Singh v. Rao Jagadish Singh, AIR 1968 SC 620 and K.K Varma v. Union of India, AIR 1954 Bom. 358 and ultimately held that the encroachers are not entitled to proceed under the said Act and the trespassers could be evicted. Further, the learned Judge held that a writ of mandamus can be issued only to direct the authorities to discharge their statutory functions and not to prevent or restrain them from discharging their statutory functions and dismissed the writ petitions.

17. On the same principle, the Writ Petitions are also in my view, liable to be dismissed. However, the learned counsel for the petitioners contended that the petitioners in those writ petitions have not raised the question of jurisdiction of the municipality to initiate eviction proceedings. In this case, the main dispute is with regard to power of the municipality to evict the petitioners. The order in W.P Nos. 16269 to 16277 of 1997 may not help the respondent and also this Court cannot rely upon the principles laid therein to decide the present writ petition. While advancing such an argument, the learned counsel for the petitioners very fairly conceded that out of 159 encroachers, more than 150 encroachers had already been evicted and only the petitioners herein are to be evicted. When out of 159 encroachers more than 150 encroachers had been evicted and the respondent had resumed possession of the land for the utilisation of space for the public purpose. I am of the view that merely because a technical plea has been raised by the petitioners herein, the public utilisation of space should not be stalled. Even assuming for the purpose of argument that there is some force in the contention of the learned counsel for the petitioners, but still when it is admitted that the Revenue Authorities had issued notices under Sections 7 and 6 of the said Act, it cannot be said that the petitioners are aggrieved persons because of the action taken by the respondent especially when the eviction proceedings has been initiated jointly by the municipality as well as by the Revenue Authorities.

18. In fact, in recent judgment of the Supreme Court in Ahmedabad Municipal Corpn. v. Nawab Khan Gulab Khan, AIR 1997 SC 152, the learned judges lave held that if the encroachment is sighted recently, immediately the authorities have to take proceedings to remove the same. Wherever the encroachment is for considerably a longer period, the occupiers should be granted a reasonable time which the Court has held a minimum of two weeks or ten days would be sufficient requesting them to vacate in the following terms:

“The Constitution does not put an absolute embargo on the deprivation of life of personal liberty but such a deprivation must be according to the procedure, in the given circumstances, fair and reasonable. To become fair, just and reasonable, it would not be enough that the procedure prescribed in law is a formality. It is must be pragmatic and realistic one to meet the given fact situation. No inflexible rule of hearing and due application of mind can be insisted upon in every or all cases. Each case depends upon its own backdrop. The removal of encroachment needs urgent action. But in this behalfwhat requires to be done by the competent authority is to ensure constant vigil on encroachment of the public places. Sooner the encroachment is removed when sighted, better would be the facilities or convenience for passing or repassing of the pedestrians on the pavements or footpaths facilitating free flow of regulated traffic on the road or use of public places. On the contrary, the longer the delay, the greater will be the danger of permitting the encroachers claiming semblance of right to obstruct removal of the encroachment. If the encroachment is of a recent origin the need to follow the procedure of principle of natural justice could be obviated in that no one has a right to encroach upon the public property and claim the procedure of opportunity of hearing which would be a tardious and time-consuming process leading to putting a premium for high-handed and unauthorised nots of encroachment and unlawful squatting. On the other hand, if the Corporation allows settlement of encroachers for a long time for reasons best known to them, the reasons are not far to seek, then necessarily a modicum of reasonable notice for removal, say two weeks or 10 days, and personal service on the encroachers or substituted service by fixing notice on the property is necessary. If the encroachment is not removed within the specified time, the competent authority would be at liberty to have it removed. That would meet the fairness of procedure and principle of giving opportunity to remove the encroachment voluntarily by the encroachers. On their resistance, necessarily appropriate and reasonable force can be used to have the encroachment removed. Thus considered we hold that the action taken by the appellant Corporation is not violative of principle of natural justice.

It is not in dispute that Rakhial Road is one of the important main road in the city of appellant-Corporation and it needs removal of encroachment for free passing and re-passing of the pedestrians on the pavements/footpaths.” (emphasis supplied)

With regard to the claim of the petitioners before the Supreme Court for allotment of alternate sites, the Supreme Court observed as follows:-

“It is, however, made clear that we are not giving any specific direction in this behalf lest it would amount to encouraging the people to abuse the judicial process to avail of such remedy by encroaching public property.”

19. In that latest Supreme Court judgment, it has been further held that the petitioners have no fundamental right to seek for the alternate allotment. When once the petitioners are found to be ranked trespassers, they should not be permitted to take advantage of their own illegal act and as such, it is not open to them to complain the action taken by the respondent. Hence, I am of the view that the writ petition is devoid of merits and the same is dismissed. So far as the counsel for petitioners in W.P.Nos 12714 to 12717 of 1998 is concerned, he fairly represented that already this Court has reserved orders in W.P No. 10748 of 1998 and the order in the said writ petition would cover issues involved in the writ petitions W.P No. 12714 to 12717 of 1998. In view of the dismissal of W.P No. 10748 of 1998, W.P Nos. 12714 to 12717 of 1998 are also dismissed. No costs. Consequently, W.M.P.Nos 16409, 19387 to 19390 or 1998 are also dismissed.

20. Before I part with the case, I have to observe that nowadays, most of the cases are being filed for a mandamus directing the respondents not to interfere with the possession of the encroachers and similar writ petitions are also filed by the persons aggrieved by such encroachments seeking for a writ of mandamus directing the authorities to remove the encroachment. The nature of the litigation clearly reveals that the executive is not taking immediate steps to prevent the encroachment or at least immediately to remove such encroachments as soon as the same is spotted out. It is not known as to why the revenue authorities are encouraging this sort of encroachments and thereby increasing the litigations before the Court. If the revenue authorities are instructed to keep vigil over the Government property in order to prevent any encroachment or unauthorised construction or occupation, it may not only save the Government property, but also prevent unnecessary increase of litigations before the Court. The Government undertakings like Electricity Board and the Local Bodies should also be restrained from giving electricity supply and other facilities, unless they are satisfied with the ownership of the land and the building, if any building is constructed in the Government property whether it is a puromboke land or otherwise. Without the consent of Government authorities, the Government undertaking should not freely extend their helping hand to give the amenities for the properties, which have been constructed by way of encroachment. This may lead to various inferences in respect of conduct of the authorities, which ultimately affect the reputation of the officers in discharging their statutory functions. The Government is directed to issue necessary directions to the head of the districts in these lines so that at least in future, this sort of dual litigation can be prevented.

N. Arunachalam And 7... v. The Avadi Municipali...