T.S. Ravi & Another v. The District Collector, Thiruvallur & Others

(Prayer: Writ Petition Prayers: Petition filed under Article 226 of the Constitution of India praying for issuance of a

(i) Writ of Certiorarified mandamus, calling for the records in respect of the impugned notice in Na.Ka.No.1762/2017/AA1 dated 14/06/2018 issued by 2nd respondent under Section 7 of Tamil Nadu Land Encroachment Act, 1905 (Act III/1905) and quash the same as illegal and arbitrary and direct the 1st respondent to pay the petitioner adequate compensation for the demolished portion of the building owned and enjoyed by the petitioner. (in WP 26234/18)

(ii) Writ of Certiorarified mandamus, calling for the records in respect of the impugned notice in Na.Ka.No.1762/2017/AA1 dated 09/07/2018 issued by 2nd respondent under Section 6 of Tamil Nadu Land Encroachment Act, 1905 (Act III/1905) and quash the same as illegal and arbitrary and direct the 1st respondent to pay the petitioner adequate compensation for the demolished portion of the building owned and enjoyed by the petitioner. (in WP 26237/18))

Common Order

R. Subramanian, J.

1. The prayer in the Writ Petitions is as follows:

(i) Writ of Certiorarified mandamus, calling for the records in respect of the impugned notice in Na.Ka.No.1762/2017/AA1 dated 14/06/2018 issued by 2nd respondent under Section 7 of Tamil Nadu Land Encroachment Act, 1905 (Act III/1905) and quash the same as illegal and arbitrary and direct the 1st respondent to pay the petitioner adequate compensation for the demolished portion of the building owned and enjoyed by the petitioner. (in WP 26234/18)

(ii) Writ of Certiorarified mandamus, calling for the records in respect of the impugned notice in Na.Ka.No.1762/2017/AA1 dated 09/07/2018 issued by 2nd respondent under Section 6 of Tamil Nadu Land Encroachment Act, 1905 (Act III/1905) and quash the same as illegal and arbitrary and direct the 1st respondent to pay the petitioner adequate compensation for the demolished portion of the building owned and enjoyed by the petitioner. (in WP 26237/18)

2. The case of the petitioners in both the Writ Petitions is identical. According to them, the petitioner in WP No.26234 of 2018 had purchased the subject property measuring about 2575 sq.ft. situate in T.S.No.64/1 at Thiruvottiyur Village under a sale deed dated 24.08.1987 and after his purchase patta has also been issued to him by the Special Tahsildar, Thiruvottiyur, on 03.03.2016.

3. It is also claimed that an extent of 27.5 sq.mts. of the said land was acquired by the Government for widening and strengthening Chennai to Ennore Road and an award was passed granting compensation in award No. 5 of 2011 dated 23.09.2011. The remaining extent is claimed to be in possession of the petitioner he having put up a building with two shops and a residential portion.

4. Insofar as, the petitioner in WP No.26237 is concerned, she would contend that she has purchased an extent of 3809 sq.ft. land in Survey Number in TS No.65/1, 137 and 138 of Thiruvottiyur Village under Sale Deed dated 17.02.1972. It is also claimed that she has been granted patta to the said extent of land purchased by her by the Special Tahsildar, Thiruvottiyur on 03.03.2016. It is also seen that the Government of Tamil Nadu has acquired an extent of about 26.5 sq.mts. of land in the said Town Survey Number in TS No.65/2, and an award has been passed on 23.09.2011 in award No.46 granting a compensation of Rs.7,69,653/- to her.

5. While things stood thus, the Tahsildar, Thiruvottiyur issued a notice to both the petitioners on 12.04.2018 requiring them to participate in a public hearing to be held on 16.04.2018, as it was proposed to acquire the lands in question for the purposes of Chennai Metro Rail Project. However, the petitioners were served with a notices dated 14.06.2018 (in WP No.26234/18) and on 09.07.2018 (in WP No.24237/18), purportedly under Section 7 of the Tamil Nadu Land Encroachment Act, 1905, claiming that the petitioners have encroached the Government land. The petitioners have submitted a representation to the District Revenue Officer/Land Acquisition Officer, Chennai Metro Rail Scheme on 10.08.2018 asserting their ownership.

6. According to the petitioners, the 2nd respondent, namely Tahsildar, Tiruvottiyur had illegally demolished a portion of the construction put up by them without even passing an order under Section 6 of the Tamil Nadu Land Encroachment Act, 1905. It is also the contention of the petitioners that the land in question has been classified as Grama Natham and Patta has also been issued by the Competent Authority, while so, the respondents were not justified in treating the petitioners as encroachers and illegally demolishing the building even without passing an order under Section 6 of the Act. On the above contentions, the petitioners would seek a Writ of Certiorarified Mandamus as stated supra.

7. When the above Writ Petitions came up for admission on 05.10.2018, Mr.J.Pothiraj, learned Special Government Pleader took notice on behalf of the respondents 1 and 2. We had directed the counsel for the petitioner to serve notice on the Standing Counsel for Chennai Metro Rail Limited and further directed the respondents 2 and 3 to appear before us along with the entire records including the A-Register of Thiruvottiyur village, on 09.10.2018, as there was a dispute regarding the classification of the land in question.

8. The Writ Petition was listed before us on 10.10.2018, the Tahsildar, Thiruvottiyur, namely S.Rajkumar/2nd respondent was present in Court along with A-Register and other connected records. A perusal of the A-Register of Thiruvottiyur Village, which has been produced in original before us, shows that the land in question has been classified as Grama Natham and the names of the petitioners, has also been recorded as the owners of the same. The 2nd respondent has also produced the original notices issued under Section 7 of the Tamil Nadu Land Encroachment Act 3 of 1905.

9. It is claimed that Section 7 notice was served on the petitioners by affixture. It is claimed by the Tahsildar that an order under Section 6 of the said Act has been passed on 09.07.2018 and the same has been served on the petitioners. The office copy of the said order has been produced before us. It is also claimed that the petitioners have signed the same in acknowledgement of the receipt.

10. To our surprise, we found that the signatures of the petitioners in the said order under Section 6 dated 09.07.2018 does not tally with the signatures that are found in the office copy of the notice dated 12.04.2018, in and by which, the petitioners were required to participate in the meeting regarding acquisition of the land for Chennai Metro Rail. When the Tahsildar was questioned about the discrepancy in the signatures, he was unable to give a convincing reply and he chose to blame the Revenue Inspector and the Village Administrative Officer, who, according to him, were entrusted with the job of serving the order under Section 6 on the petitioners.

11. We find that an attempt is being made to make it appear that an order of Section 6 was in fact served on the petitioners. We, therefore, have no hesitation in concluding that the procedure contemplated under the Tamil Nadu Land Encroachment Act, 1905, has not been followed and the petitioners have been illegally dispossessed of their lands.

12. Hence we directed the Tahsildar to restore possession of the property to the petitioners and file a compliance report. When the matters were posted today, the Tahsildar, Thiruvottiyur had filed a compliance report stating that the lands in question have been handed over to the petitioners. The matter does not end there. Admittedly, the lands in question are classified as Grama Natham and Pattas have been issued to the petitioners. A certain portion of the said lands have been acquired by the Government by paying compensation to the petitioners in the year 2011. This would definitely mean that the Government had accepted the ownership of the petitioners to the lands in question.

13. It is, however, sought to be contended by the learned Special Government Pleader that though the lands were classified as Grama natham, the petitioners cannot put the same to commercial use and if Grama Natham lands are put to commercial use, the Government is empowered to resume the same. Reliance is placed upon the judgment of the Division Bench of this Court reported in Zonal Officer, Corporation of Chennai vs. Nasa Reddy, reported in 2012 (4) MLJ 646, in support of the said contention.

14. Countering the said submissions, Mr.K.N.Nataraaj, learned counsel appearing for the petitioners would submit that lands classified as Grama Natham or lands that are meant for the villagers to put up houses and reside therein do not vest in the Government. Though the word Grama Natham has not been defined in any enactment. Mr.K.N.Nataraaj, would draw our attention to the meaning attributed to the “Grama Natham” in P.Ramanatha Aiyar’s Advanced Law Lexicon, which reads as follows:

Ground set apart, on which the house of a villager may be built”.

15. He would also invite our attention to the following judgments of this Court and the Hon’ble Supreme court, which have dealt with the nature of the land that is classifed as Grama Natham in the Revenue Records.

(i) Palani Ammal v. L.Sethurama Aiyangar, reported in AIR 1949 Madras 814;

(ii) S.Rengaraja Iyengar and another v. Achikannu Ammal and another, reported in 1959 (II) MLJ 513;

(iii) Chigurupati Venkata Subbayya and others v. Paladugu Anjayya and others, reported in AIR 1972 SCC 1421;

(iv) A.K. Thillaivanan and another v. The District Collect, Chengai Anna District at Kancheepuram, reported in 1998 (3) LW 603;

(v) The Executive Officer, Kadathur Town Panchayat v. V. Swaminathan, reported in 2004 (2) MLJ 708 (DB) and

(vi) Dharmapura Adhinam Mutt v. Raghavan and another, reported in 2012 (1) CTC 280.

16. Relying upon the observations of this Court and the Hon’bleSupreme Court in the judgments, referred to supra, Mr.K.N.Nataraaj, would contend that historically lands classified as Grama Natham are meant for villagers to reside therein by putting up houses. He would further contend that due to Urbanisation, many of the villages have become part of big Cities and the lands which were classified as Grama Natham and continued to be in possession of individuals, who had put up houses had acquired more commercial value. This phenomenon, according to Mr.K.N.Nataraaj, would not change the character of the land as Grama Natham.

17. Mr.K.N.Nataraaj, would also rely upon Section 2 of the Tamil Nadu Land Encroachment Act 3 of 1905, which excludes the vesting of Grama Natham lands in the Government. He would also seek to distinguish the judgment of the Division Bench in Zonal Officer-V, Corporation of Chennai, Chennai 10 and another vs. K. Narasa Reddy, Kances Constructions Pvt. Ltd., Chennai 17 and others reported in 2012 (4) MLJ 646, by pointing out that the Division Bench had only observed that the commercial exploitation of Grama Natham land cannot be permitted. Drawing our attention to the facts of the said case, wherein an attempt was made by a professional builder to develop a vast extent of Grama Natham land by putting up a multi storied building with stilt plus four floors consisting of 256 dwelling units therein. Mr.K.N.Nataraaj, would contend that the Division Bench did not, as a proposition, lay down the Law that Grama Natham land cannot be put to any sort of commercial use. He would add that such commercial use by itself will not have the effect of vesting the land in the Government, so as to enable the Government to take possession of the land treating the persons in occupation as encroachers.

18. We have considered the rival submissions.

19. In the case on hand, the respondents have attempted to invoke the provisions of the Tamil Nadu Land Encroachment Act III of 1905 to dispossess the petitioners. Section 2 of the said Act reads as follows:

Section 2. Right of Property in Public roads etc., waters and lands:-

(i) All public roads, streets, lanes and paths, the bridges, ditches, dikes and fences, on or beside the same, the bed of the sea and of harbours and creeks below high water mark and of rivers, steams, nalas, lakes and tanks and all backwaters, canals and water courses and all standing and flowing water, and all lands, wherever situated, save in so far as the same are the property        (emphasis supplied)

(a) of any Zamindar, Poligar, mittadar, jagirdar, shrotriemdar or inamdar or any person aiming through or holding under any of them, or

(b) of any person paying shist, kattubadi, Jodi, poruppu or quit- rent to any of the aforesaid persons or

(c) of any person holding under ryotwari tenure, including that of a janmi in the Gudalur taluk of the Nilgiri District and in the transferred territory or in any way subject to the payment of land revenue direct to Government or

(d) of any other registered holder of land in proprietary right, or

(e) of any other person holding land under grant from the government otherwise than by way of license,

and, as to lands, save also in so far as they are temple site or owned as house-site or backyard, and are hereby declared to be the [the property of Government] except as may be otherwise provided by any law for the time being in force subject always to all rights of way and other public rights and to the natural and easement right of other landowners, and to all customary rights legally subsisting.

(2) All public roads and streets, vested in any local authority shall, for the purposes of this Act, be deemed to be the [the property of Government].

Explanation.- In this Section “high water mark” means the highest point reached by ordinary spring-tides at any season of the year. (emphasis supplied)

20. A reading of the provisions of the Act 3 of 1905, would show that the Act was intended to vest all communal lands, Roads and Waterways in the Government and provide a machinery for evicting the encroachers of such lands. The vesting provision, namely Section 2, which has been extracted above would show that lands that are classified as “house site”(Grama Natham), temple site do not vest in the Government, so as to enable the Government to invoke the other provisions of the Act to dispossess the occupants of such lands by following the procedure prescribed under the said act.

21. The question whether the land is classified as Grama Natham is communal land belonging to the entire villages or not was considered by this Court in Palani Ammal v. L.Sethurama Aiyangar, reported in AIR (36) Madras 814. While considering the said question the learned Single Judge of this Court after referring to the Judgment of Wadsworth J. in Chinnathambi Goundan v. Venkatasubramania Iyer, reported in AIR (26) 1939 Mad, 409, had observed as follows:

Gramanatham is not communal property in the sense in which thrashing floor or burning grounds or other property is communal, that is property reserved for the use of the community. Gramanatham if it is unoccupied is assigned from time to time by the proprietor whether it is in zamindari area or in an inam village; and this practice was referred to by the learned Judge (Wadsworth J.) in Chinnathambi Goundan v. Venkatasubramania Iyer, AIR (26) 1939 Mad 409. This, if I may say so with respect, is the practice obtaining in the zamindari area and also in inam villages.

22. The question as to whether the provisions of the Tamil Nadu Land Encroachment Act, 1905, would apply to the lands that are classified as Grama Natham was considered by a learned Single Judge of this Court in S.Rengaraja Iyengar and another v. Achikannu Ammal and another, reported in 1959 (II) MLJ 513. The learned Judge after referring to Section 2 of the Tamil Nadu Land Encroachment Act, 1905, as well as the provisions of Section 3(b) of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948, held that the Grama Natham land does not vest in the Government and the Government is not the paramount owner. While doing so, the learned Single Judge observed as follows:

A house-site owned by a person in what is generally known as gramanatham is not, under Madras Act III of 1905, property of the Government. Section 2 of Madras Act III 1905 says, in regard to lands which are not covered by Clauses (a) to (e) of Sub-section (1) of Section 2, that those lands are and are hereby declared to be the property of the. Government, save in so far as they are temple-site or owned as house-site or backyard. In order that a land may properly be described as house-site within the meaning of that expression in Section 2 of Madras Act III of 1905, it is not necessary that there should be a residential building actually constructed and standing on that site. A person may in a village habitation own a house in a street and a site on the outskirts of the habitation but within the limits of the gramanatham, which he uses for the purpose of storing his hay and manure, if he is an agriculturist, or as a smithy, if he is a smith, or as a brick-kiln if he is a brick-maker or as a place for weaving if he is a weaver. On such sites, buildings or sheds may when necessary be constructed. But whether such buildings or sheds are constructed or not, such sites are, in my opinion, house-sites within the meaning of that expression in Section 2 of the Madras Act III of 1905.

The learned Judge also further observed as follows:

A building in a gramanatham (or village habitation) is protected from transfer of title to the Government both under Section 18(1) of Madras Act XXVI of 1948 and under the Madras Land Encroachment Act (III of 1905). The title to a house site in a gramanatham is protected from transfer to Government by the operation of Madras Act III of 1905.

23. In Chigurupati Venkata Subbayya and others v. Paladugu Anjayya and others, reported in AIR 1972 SCC 1421, the Hon’bleSupreme Court while dealing with the provisions of Section 3(b) of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 26 of 1948, had held that while communal lands, promboke and other Ryotwari lands, waste lands, forests, mines and minerals, quarries, rivers, streams, tanks and irrigation works etc. will vest in the Government, the land classified as Grama Natham will not vest in the Government.

24. The Division Bench of this Court in The Executive Officer, Kadathur Town Panchayat v. V. Swaminathan, reported in 2004 (2) MLJ 708, referring to almost all the earlier decisions, relating to “Grama Natham”, concluded that the land classified as Grama Natham does not vest in the Government. The Division Bench also took note of the definition of the word “Grama Natham” in P.Ramanatha Aiyar’s Advanced Law Lexicon, and the meaning attributed to the word “Natham” in the Tamil lexicon published under the Authority of University of Madras, while coming to the said conclusion. While doing so, the Division Bench observed as follows:

13. In the light of the above and in view of the fact that the admitted classification of the land being a ‘Grama Natham’, it is obvious that the land was never vested with the Government or the Town Panchayat. Inasmuch as the petitioners and their ancestors were in exclusive possession of the lands in question for the past 40 years, the impugned order of the third respondent in canceling the pattas with a view to evict them summary at the instance of the resolution passed by the Panchayat is not sustainable. Further such a summarily eviction is not permissible in law when the disputed question of title is involved for adjudications as laid down by the Apex Court in a number of decisions.

The Division Bench had in fact held that the summary cancellation of patta granted to such lands cannot be justified.

25. In A.K. Thillaivanam v. District Collector, Chengai Anna District, reported in 1998 (3) LW 603, a learned Single Judge on this Court had concluded that the land that is classified as Grama Natham, does not vest in the Government and the Government has no right to take action under the Land Encroachment Act or any other enactment to dispossess the occupants of these lands. After referring to the earlier decisions, the learned Judge observed as follows:

27. Thus it is obvious, the admitted classification of the land being a gramanatham, the land was never vested with the respondents nor they could take action under the Land Encroachment Act or any other enactment. The petitioners state they have exclusive right, title, possession, since 1954 onwards. The respondents have no right to interfere with the peaceful possession and enjoyment of the land and their action in giving a complaint for alleged offence under Section 420 of the I.P.C. is total misconception.

26. In Dharmapura Adhinam Mutt v. Raghavan and another, reported in 2012 (1) CTC 280, another Division Bench of this Court had considered the applicability of the Tamil Nadu Land Encroachment Act, 1905 to the lands classified as Grama Natham. After revisiting the Law, the Division Bench had taken note of the fact that the Government had introduced a scheme called Natham Nilavari Thittam and issued pattas to the occupants of Grama Natham lands, while doing so the Division Bench had observed as follows:

32. Therefore, Gramanatham is not vested with the Government. Under UDR Scheme (Up Dating Revenue Record scheme) the gramanatham lands were surveyed and survey numbers have been assigned. There was an attempt by the Government to levy tax (Natham Nilavari Thittam). Therefore, under that scheme, the Natham lands were surveyed and resurvey numbers were assigned and pattas were issued. Since gramanatham is the habitation where the land owners may build houses and reside they were known as house sites. They were classified as Gramanatham to differentiate the land from Inam lands Ryotwari lands, pannai lands and waste lands. While the lands under the other classifications vested with the Government, the gramanatham never vested with the State. However, under the UDR scheme, to enforce a tax on the Natham lands, a Thoraya Patta, for tax purporse was issued to those persons who claimed to be the land holders. The land holding is based on the title through the predecessor-in-title. Therefore, the patta issued under UDR scheme is not the patta under the Land Encroachment Act and there is no bar of the jurisdicition of the civil court under Sec.14 of the Land Encroachment Act.

27. In view of the above decisions and the law laid down by the Hon’bleSupreme Court and this Court, the clear legal position that emerges is as under:

That the Government has no paramount title to the lands classified as Grama Natham and such lands do not vest in the Government. If that be so, the respondents herein could not have invoked the provisions of Tamil Nadu Land Encroachment Act, III of 1905, to evict the petitioners. As already adverted to the Government had issued pattas to the petitioners and has also recognised the title of the petitioners by acquiring a portion of these lands by paying compensation in the year 2011. The fact that the pattas have been granted to the petitioners as well as the fact that a portion of these lands were acquired from the petitioners by paying compensation in the year 2011 is not disputed by the Government. While so, we are at a loss to understand as to how, the Government can now claim that the petitioners are encroachers. The one and the only reason that is projected is that the petitioners have put these lands to commercial use. From the facts, it is seen that the petitioners have put up shops in the front portion and residential accommodation in the rear portion. This by itself would not mean that the lands have lost their character as Grama Natham lands.

28. In fact, the Division Bench judgment which is relied upon by the learned Government Pleader in support of his submission that Grama Natham lands cannot be commercially exploited itself makes a distinction between a normal user and a commercial exploitation. The Division Bench had in fact recognised the rights of persons who are in occupation of Grama Natham property as house sites for several years. The Division Bench, however, taking into account the fact that the 1st respondent in the said Writ Appeal had proposed to put up construction of multi storied building with 256 residential units for the purposes sale held that such commercial exploitation of Grama Natham land cannot be permitted .

29. We are therefore of the considered opinion that the Division Bench in Zonal Officer v. Corporation of Chennai, Chennai and another, reported in 2012 (4) MLJ 646, did not conclude that the construction of a shop along with residential unit in the Grama Natham land would result in the land losing its character as Grama Natham. We are, therefore, of the considered view that what was frowned upon by the Division Bench in the judgment in Zonal Officer v. Corporation of Chennai, Chennai and another, reported in 2012 (4) MLJ 646, was a large scale commercial exploitation of Grama Natham land and the same would not take in a owner or an occupier, who has been issued patta under the Natham Nilavari Thittam or any other scheme of the Government, who puts up a small shop in the front portion of his residential accommodation. It is not the case of the respondents that the lands have been reclassified. We are afraid such re-classification cannot also be done, insofar as, the lands that are classified as Grama Natham, since the Government is not the owner of the property and it cannot deprive the rights acquired by the citizen by reclassifying the property, which is already classified as Grama Natham.

30. We, therefore, conclude that the Government has no right to evict persons who are in occupation of lands classified as Grama Natham in the Revenue records by invoking the provisions of the Tamil Nadu Land Encroachment Act, 1905, or any other enactment. It is always open to the Government to acquire the lands by paying compensation, if they are needed for any public purpose.

31. In view of the above, the Writ Petitions are allowed, the notices issued under Section 7 and the orders passed under Section 6 of the Tamil Nadu Act, III of 1905 are quashed, leaving it open to the Government to acquire the lands in question, if the Government requires it for any public purpose. No costs.