J 2019 SCC OnLine Mad 378 Valana Ug19 Tnnluacin 20230622 205529 1 13

SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.
Page 1 Thursday, June 22, 2023

Printed For: Valan A, Tamil Nadu National Law University
SCC Online Web Edition: http://www.scconline.com
© 2023 EBC Publishing Pvt. Ltd., Lucknow.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
2019 SCC OnLine Mad 378
In the High Court of Madras

(BEFORE S.M. SUBRAMANIAM, J.)
K. Lakshmanan .…. Petitioner;

v.
District Collector, Salem District and Another .…. Respondents.
W.P. No. 32284 of 2005 and W.P.M.P. No. 35237 of 2005
Decided on January 7, 2019
Advocates who appeared in this case :
For Petitioner: Mr. R. Vijendran
For Respondents: M/s. R. Janaki Additional Government Pleader
Prayer: Writ Petition filed under Article 226 of the Constitution of India praying to
issue a Writ of Certiorarified Mandamus, call for the records from 2nd respondent
pertaining to the impugned eviction notice dated 20.09.2005 and quash the same and
consequently to direct the respondents to provide alternative place to the petitioner in
order to construct house before the eviction process will start in Survey Nos. 27/1 at
Kothanur, Andipati Post, Salem Taluk & District.
The Order of the Court was delivered by
S.M. SUBRAMANIAM, J.:— The Eviction Notice issued under Section 6 of the Tamil
Nadu Land Encroachment Act, 1905 is under challenge in the present writ petition.
2. The learned counsel for the writ petitioner mainly contended that the authorities
competent are picking and choosing the persons for the purpose of invoking the
provisions of the Tamil Nadu Land Encroachment Act, 1905. Thus, the actions of the
respondents are discriminatory and they are allowing all such similar commercial
centres in the very same locality, who all are also in occupation of the Government
Poramboke lands, which is classified as “Sakkilikuttai”, which is a water body. Thus,
the petitioner states that they are in occupation of a very small portion of the land for
the purpose of living and in the event of allowing all other encroachers in that locality,
the petitioner alone cannot be evicted by invoking the provisions of the Tamil Nadu
Land Encroachment Act.
3. Further, it is contended by the learned counsel for the petitioner that for the
purpose of providing an alternate land, the petitioner submitted a representation to
the authorities competent on 08.09.2012 and the said representation is yet to be
considered. Thus, the writ petitioner is constrained to challenge the very issuance of
the notice.
4. The learned Additional Government Pleader appearing on behalf of the
respondents disputed the contention raised on behalf of the writ petitioner by stating
that the writ petition itself is not maintainable in view of the fact that the authorities
have issued notice by following the procedures as contemplated under the Tamil Nadu
Land Encroachment Act, 1905 and there is no infirmity as such. This apart, the
encroached portion of the Government land is classified as “Sakkilikuttai”, which is a
water body and as per the judgments of this Court, there cannot be any encroachment
in water bodies and water resources. Thus, the writ petition is devoid of merits and
liable to be dismissed.
5. Considering the arguments as advanced by the respective learned counsel for the
petitioner as well as the respondents, this Court is of an opinion that admittedly, the
land is classified as Poramboke called as “Sakkilikuttai”. The Tahsildar, Salem also filed
-----------------------------------------------------------------------------------------------------------------------------------------------------------
a counter affidavit, clarifying that the total area of 0.89.5 Hec., an extent 0.34.5 Hec.,
of land has been encroached by one Thiru. Kandsamy, the father of the writ petitioner
and 9 others by constructing houses, Middle School, Panchayat T.V. Room,
Kaliyamman Koil, Ration shop, Public Toilet, Panchayat Road from North to South are
all in existence in the suit properties. The area encroached by the petitioner and others
up on the poramboke land should be evicted in accord to law.
6. Encroachment is a social evil. Encroachment infringes the rights of all other
citizens residing in that particular locality. Encroachment affects the implementation of
welfare schemes for the public at large. Encroachments creates discrimination
amongst the citizen in violation of the Constitutional principles. Encroachments in
public properties can never be tolerated. Public lands are meant for the usage of public
at large for the welfare schemes and few greedy men can never be allowed to occupy
the Government land for their personal gains and for unlawful enrichment. The
constitutional principles and Ethos emphasis that public schemes are to be
implemented for the welfare of the public at large by the State. Thus, it is duty
mandatory on the part of the State to ensure that all the public properties are to be
protected in the interest of public and to implement the welfare schemes for the usage
of a common man. Thus, individual person can never be allowed to encroach upon the
public land for their personal gains, which is not only against the constitutional
principles, but infringes the constitutional rights of all other citizen and therefore, the
State is bound to initiate action against all such encroachers, more specifically, water
bodies, water resources, and Government Poramboke lands.
7. In the present writ petition on hand, admittedly, the land in question is
“Sakkilikuttai”, which is a water body. The only grievance of the writ petitioner is that
other persons, who all are also the encroachers are permitted to continue. Certainly
the point raised is to be considered in view of the fact that none can be allowed to
encroach upon such water body even as per the judgments of the Apex Court of India.
It is not only the writ petitioner, but all other persons, who all are in occupation and
enjoyment of such water bodies and water resources are liable to be evicted by
following the procedures as contemplated under law.
8. If the Officials are inactive and insensitive towards the encroachments in public
lands and water bodies it would amount to infringing the constitutional rights of other
citizens, who are residing in the nearby places from water bodies, as the same would
affect the other citizens to get sufficient water. Thus, the infringement amounts to
violation of constitutional rights ensured to all other citizens. It is the duty of the State
to preserve the water bodies and prevent ecological imbalances. Such being the
constitutional perspectives and duty of the State, the State authorities are bound to
act in respect of all such encroachments. This Court already passed an order in W.P.
No. 4779 of 2015 dt.13.08.2018 and the relevant paragraphs are extracted hereunder:
—
“11. ENCROACHMENT - AS AN ISSUE:—
(1) The Black's Law Dictionary defines encroachment as “an infringement of
another's rights; an interference with or intrusion onto another's property”.
The word ‘Encroach’ is defined as “to enter by gradual steps or stealth into the
possessions or rights of another; to trespass or intrude; to gain or intrude
unlawfully onto another's lands, property or authority”. Thus, it is
unambiguous that encroachment is an offence. Encroachment amounts to a
criminal trespass into the property belongs to another.
(2) The definition of encroachment is also defined in Section 2(1)(c) of the Tamil
Nadu Land Encroachment Act, 1905 (Act III of 1905). Encroachment means,
unauthorised occupation of land and public land by way of putting temporary,
or permanent structure for residential or commercial use or any other use.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
(3) The encroachment process gradually gains momentum from the following
factors:—
(i) Lack of periodical monitoring;
(ii) Weakening of Social bondage;
(iii) People's justification of their position by citing wrong examples;
(iv) Delayed realisation of the ill-effects caused by encroachments;
(v) Negligence of Government functionaries and lack of timely action.
However, it is pertinent to note the fact that the basis of the alarming rise
of encroachments is the greed, selfishness, and jealousy of people.
(4) Section 441 of the Penal Code, 1860 states; “whoever enters into or upon
property in the possession of another with intent to commit an offence or to
intimidate, insult or annoy any person in possession of such property, or,
having lawfully entered into or upon such property, unlawfully remains there
with intent thereby to intimidate, insult or annoy any such person, or with
intent to commit an offence, is said to commit ‘criminal trespass’.” The term
‘criminal trespass’ has been defined in Black's Law Dictionary as “a person
who enters on the property of another without any right, lawful authority or an
express or implied invitation or licence”. But when trespass is committed with
a criminal intention, it is treated as an offence and is made punishable under
the Penal Code, 1860. A punishment is that “whoever commits criminal
trespass shall be punished with imprisonment of either description for a term
which may extend to three months, or with fine which may extend to five
hundred rupees, or with both.
(5) The land encroachment is a social evil. Encroachment is a passive form of
land grab movement, which mirrors man's innate greed for land and his
natural tendency towards aggrandizement of wealth in any form.
Encroachment of Government property is a loss not only for the Government
but also the public, as huge amount of money would be spent again to acquire
new property.
(6) The Government lands are for the welfare of the public in general and to
create common infrastructure for the usage and benefit of, we the people of
India. Thus, the matter of encroachment of Government land cannot be
treated ordinarily and it should be treated as a grave offence against, the
State.
(7) Article 300-A of the Constitution of India deals with persons not to be
deprived of property save by authority of law. No person shall be deprived of
his property save by authority of law. Thus, the State being a “person”, cannot
be deprived of its right of property and any intruder is liable to be prosecuted
under the provisions of the Land Encroachment Act as well as under the Penal
Law. Thus, this Court is of the opinion that the rights conferred to a person
under Article 300-A of the Constitution of India, is certainly available to the
State and the State has got every right to initiate appropriate legal action
against the encroachers.
(8) The preamble of the Constitution ‘WE THE PEOPLE OF INDIA’, is the heart
and soul of the Constitution. Article 12 of the Constitution provides definition
for the State. Accordingly, ‘the State’ includes the Government and Parliament
of India and the Government and the Legislature of each of the States and all
local or other authorities within the territory of India or under the control of
the Government of India. Thus, State is a person and therefore, all public
lands belong to the State and we the people of India are the owners of the
land. Thus, the right of property provided under Article 300-A is to be
extended to the State as a person. In other words, the property belongs to the
-----------------------------------------------------------------------------------------------------------------------------------------------------------
State is also protected under Article 300-A of the Constitution of India. Thus,
any encroacher of a public/Government land is certainly depriving the right of
property of the State to possess the same under Article 300-A of the
Constitution of India. Therefore, the question of de-linking such encroachers
otherwise will not arise at all. Question of extending the equality clause or the
discrimination clause will not arise at all to the encroacher as an offender and
an offender citing the offence committed by one offender, another one cannot
claim that he should also be exonerated from the offence. Such a dangerous
proposition, cannot be adopted at any circumstances and in the event of
connivance with the officials in this regard also to be viewed very seriously.
(9) This Court wishes to ask a question whether any citizen of this country will
allow another citizen to encroach the property owned by him. Litigations in
lakhs and lakhs are pending before various Courts in our Great Nation only to
establish the rights of such citizen in respect of their property. Such being the
law of this country, how a State land can be allowed to be encroached by
another citizen and such offences are dealt in a casual manner by the officials.
Due to the constant increase of market value of the immovable property in
this Great Nation, the public officials are also contributing for the dilution of
the implementation of various laws in this regard, more specifically, while
dealing with the Government lands. Such actions deserve to be condemned
and such officials are to be dealt with iron-heart and no leniency can be shown
to such public officials.
12. The Tamil Nadu Land Encroachment Act, 1905, is an Act, which provide
measures for taking unauthorised occupation of land which are the property of the
Government. The preamble of the Act provide measures for checking unauthorised
occupation of lands which are the property of the Government, whereas, it has been
the practice to check the unauthorised occupation of lands which are the property of
the Government and by imposition of penal or prohibitory assessment or charge and
whereas, the doubts have arisen as to how far such practice is authorized by law
and it is expedient to make statutory provision for checking such occupation. The
Act provides for removal of encroachment and and the implementation of the Act by
the Government officials are to be done in a manner prescribed under the Act. Any
violation of the officials also to be viewed seriously.
13. With this background, it is necessary to go into the legal principles laid down
by the Courts on encroachments:
(i) In PANDIA NADAR v. THE STATE OF TAMIL NADU [(1974) 2 SCC 539 : 1974
AIR 2044], the Constitution Bench of the Hon'ble Supreme Court rendered a
Judgment on 30th April 1974 wherein, the very constitutional validity of the
Tamil Nadu Land Encroachment Act, 1905 was tested. While dismissing the
Appeals filed by land encroachers, the Hon'ble Supreme Court held as follows:
This Court then went on to apply those principles to the statutes under
consideration in the following words:
“The statute itself in the two classes of cases before us clearly lays down
the purpose behind them, that is that premises belonging to the
Corporation and the Government should be subject to speedy procedure in
the matter of evicting unauthorized persons occupying them. This is a
sufficient guidance for the authorities on whom the power has been
conferred. With such an indication clearly given in the statutes one expects
the officers concerned to avail themselves of the procedures prescribed by
the Acts and not resort to the dilatory procedure of the ordinary Civil Court.
Ever, normally one cannot imagine an officer having the choice of two
procedures, one which enables him to get possession of the property
-----------------------------------------------------------------------------------------------------------------------------------------------------------
quickly and the other which would be a prolonged one, to resort to the
latter. Administrative officers, no less than the courts, do not function in a
vacuum. It would be extremely unreal to hold that an administrative officer
would in taking proceedings for eviction of unauthorised occupants of
Government property or Municipal property resort to the procedure
prescribed by the two Acts in one case and to the ordinary Civil Court in the
other. The provisions of these two Acts cannot be struck down on the
fanciful theory that power would be exercised in such an unrealistic fashion.
In considering whether the officers would be discriminating between one
set of persons and another one has got to take into account normal human
behaviour and not behaviour which is abnormal. It is not every fancied
possibility of discrimination but the real risk of discrimination that we must
take into account. This is not one of those cages where discrimination is
writ large on the face of the statute. Discrimination may, be possible but is
very improbable. And if there is discrimination in actual (1) (1952) 1 SCC
215 : [1952] SCR 435 (2) [1962] 2 SCR 125 (3) [1960] 2 SCR 646 (4)
[1954] SCR 30. practice this Court is not powerless. Furthermore, the fact
that the Legislature considered that the ordinary procedure is insufficient or
ineffective in evicting unauthorised occupants of Government and
Corporation property, and provided a special speedy procedure therefore is
a clear guidance for the authorities charged with the duty of evicting
unauthorised occupants. We, therefore, find ourselves unable to agree with
the majority in the Northern India Caterers' case .”
(ii) In KRISHNAN, L. v. STATE OF TAMIL NADU [2005 (4) CTC 1], His Lordship
Justice F.M. Ibrahim Kalifulla, speaking for the Bench, held as follows:
“9. In this connection reference may be made to Article 48A of the
Constitution which states: -“Protection and improvement of environment and
safeguarding of forests and wild life: - The State shall endeavour to protect
and improve the environment and to safeguard the forests and wild life of the
country.”
10. No doubt the above provision is in the Directive Principles of State
Policy, but it is now well settled that the fundamental rights and directive
principles have to be read together, since it has been mentioned in Article 37
that the principles d down in the Directive Principles are fundamental in the
governance of the country and it is the duty of the State to apply these
principles in making laws. The Directive Principles embody the aim and object
of the State under a Republican Constitution, i.e., that it is a welfare State
and not a mere police State, vide Kesavananda Bharati v. State of Kerala,
(1973) 4 SCC 225 (vide paragraphs - 134, 139 and 1714) and embodies the
ideal of socio-economic justice, vide Union of India v. Hindustan Development
Corporation, (1993) 3 SCC 499 : AIR 1994 SC 988 (990).
11. Though the early decisions of the Supreme Court paid comparatively
scant attention to the Directive Principles in Part - IV of the Constitution as
they were said to be nonjusticiable and nonenforceable in the Courts (vide
Article 37), the subsequent decisions of the Supreme Court changed this
trend and this new trend reached its culmination in the 13 member bench
Judgment of the Supreme Court in Kesavananda Bharati's Case (Supra),
which laid down that there is no disharmony between the directive principles
and fundamental rights because they supplement each other in aiming at the
same goal of bringing about a social revolution and the establishment of a
welfare State, which is envisaged in the Preamble to the Constitution. The
Constitution aims at a synthesis of the two, and the Directive Principles
constitute “the conscience of the Constitution”. Together they form the core of
-----------------------------------------------------------------------------------------------------------------------------------------------------------
the Constitution, vide Markandeya, V. v. State of A.P., (1989) 3 SCC 191 : AIR
1989 SC 1308 (paragraph - 9). They are not exclusionary, but are
complementary to each other, vide Unnikrishnan, J.P. v. State of A.P., (1993)
1 SCC 645 : AIR 1993 SC 2178. It follows therefore that the courts should
uphold, as far as possible, legislation enacted by the State which seeks to
remove inequalities and attain ‘distributive justice’, vide, Lingappa Pochanna
Appealwar v. State of Maharashtra, (1985) 1 SCC 479 : AIR 1985 SC 389
(paragraphs 1 6 and 20), Manchegowda v. State of Karnataka, (1984) 3 SCC
301 : AIR 1984 SC 1151, Fateh Chand Himmatlal v. State of Maharashtra,
(1977) 2 SCC 670 : AIR 1977 SC 1825, etc., In recent decisions the Supreme
Court has been issuing various directions to the Government and
administrative authorities to take positive action to remove the grievances
which have been caused by nonimplementation of the Directive Principles,
vide Comptroller and Auditor General of India v. Jagannathan, (1986) 2 SCC
679 : AIR 1987 SC 537 (paragraphs 20-21), Mukesh Advani v. State of M.P.,
(1985) 3 SCC 162 : AIR 1985 SC 1363, Bandhua Mukti Morcha v. Union of
India, (1984) 3 SCC 161 : AIR 1984 SC 802, Animal and Environment Legal
Defence Fund v. Union of India, (1997) 3 SCC 549, etc.
12. Apart from the above we may also refer to Article 51A(g) of the
Constitution which makes it a fundamental duty of every citizen “to protect
and improve the natural environment including forests, lakes, rivers and wild
life”. This duty can be enforced by the Court, vide Animal and Environment
Legal Defence Fund v. Union of India (supra, vide para-15).
13. ……
14. Therefore, we direct the respondents 1 to 5 to take necessary legal
steps to remove the alleged encroachments made by the respondents 6 to 12
as well as the petitioner over Odai Poramboke in Iyan Punji Survey No. 100/1
at No. 247, Tatchur Village, Kallakurichi Taluk, Villupuram District measuring
5 acres and 70 cents. Inasmuch as this writ petition has come before us by
way of a public interest litigation, we take this opportunity to direct the State
Government to identify all such natural water resources in different parts of
the State and wherever illegal encroachments are found, initiate appropriate
steps in accordance with the relevant provisions of law for restoring such
natural water storage resources which have been classified as such in the
revenue records to its original position so that the suffering of the people of
the State due to water shortage is ameliorated.”
(iii) In an important Judgment, the Hon'ble Supreme Court in JAGPAL SING v.
STATE OF PUNJAB [(2011) 11 SCC 396 : AIR 2011 SCC 1123], has held as
follows:
“13. We find no merit in this appeal. The appellants herein were trespassers
who illegally encroached on to the Gram Panchayat land by using muscle
power/money power and in collusion with the officials and even with the Gram
Panchayat. We are of the opinion that such kind of blatant illegalities must not
be condoned. Even if the appellants have built houses on the land in question
they must be ordered to remove their constructions, and possession of the
land in question must be handed back to the Gram Panchayat. Regularizing
such illegalities must not be permitted because it is Gram Sabha land which
must be kept for the common use of villagers of the village. The letter dated
26.9.2007 of the Government of Punjab permitting regularization of
possession of these unauthorized occupants is not valid. We are of the opinion
that such letters are wholly illegal and without jurisdiction. In our opinion such
illegalities cannot be regularized. We cannot allow the common interest of the
-----------------------------------------------------------------------------------------------------------------------------------------------------------
villagers to suffer merely because the unauthorized occupation has subsisted

for many years.“
21. For the reasons given above there is no merit in this appeal and it is
dismissed.”
14. It is categorically stated in the counter affidavit filed by the respondents that
the portion of the land encroached by the writ petitioner is a Government
Poramboke land, which is preserved as water body. The Hon'ble Division Bench of
our High Court in the case of T.S. Senthil Kumar v. The Government of Tamil Nadu,
rep.by its Secretary, Public Works Department, in W.P. No. 20021 of 2008 dated
10.02.2010 and the relevant paragraphs are extracted hereunder:
“From the above, it is seen that the Act in question has come not a day
sooner, because we have seen that the Ramsar Convention includes as
wetlands, not only natural wet lands, but even human-made wetlands such as
waste water treatment ponds and reservoirs. Therefore, tanks and tank
poramboke lands would definitely require protection from encroachment.”
“18. Considering the fact that we have adopted wet land conservation
policy which takes note of the environmental value and functions of wet lands
and the fact that they deserve to be protected, the State may take steps to
protect all water bodies and not only tanks. In L. Krishnan's case AIR 2005
Madras 311, this Court has referred to the judgment of the Supreme Court in
(2001) 6 SCC 496 : AIR 2001 SC 3215, where the maintenance of ecological
balance has been highlighted and this Court has also specifically indicated
that it is imperative to see that water storage resources such as tanks, odais,
oranis, canals are not obliterated by encroachers. Right to water is a part of
life and, therefore, as observed by the Supreme Court in Hinch Lal Tiwari v.
Kamal Devi - (2001) 6 SCC 496 : AIR 2001 SC 3215, demands of economic
development must be made without compromising the natural resources of
the earth which this generation holds in trust for future generation. The order
of inter-generational equity has to be remembered and in fact in the Rio
Declaration, to which India is a party, it has been affirmed that environmental
protection constitutes an integral part of sustainable development and cannot
be isolated from it.”
“19. Persistent developmental activities, ignoring the need to protect
natural resources, have caused irreparable damage. It is also necessary that
the State shall not invoke Section 12 of the Act which results in alienation of
tank poramboke lands citing “public interest”. Protection of water resources is
as much as a public interest issue as any other requirement. The Government
may also bear in mind that water resources have to be protected while issuing
patta to persons who claim to have resided in the same place for a number of
years.”
15. The Hon'ble High Court, in the above said case issued directions to the State,
which reads as under:
“(a) The State shall scrupulously follow the provisions of the Act. It shall also
ensure that all the District Collectors and other authorities, who are concerned
with the observance of the provisions of the Act, strictly follow the letter,
dated 10.10.2007.
(b) The District Collectors, while creating adequate awareness, may also enlist
the help of Self Help Groups to disseminate the message that protection of
water resources will actually promote the welfare of the villages and therefore
it is in the interest of every citizen to make sure that he is not encroaching on
a tank and to clear tanks and water bodies which are filled with garbage and
to avoid dumping of garbage will automatically enhance and improve the
-----------------------------------------------------------------------------------------------------------------------------------------------------------
public health of the community.

(c) As already stated, the State will ensure that alienation of tank poramboke
lands, citing public interest, shall not be made under Section 12 of the Act.
The meaning and weight of the words “public interest” shall be implicitly
borne in mind.
(d) The State holds all the water bodies in public trust for the welfare of this
generation and all the succeeding generations and, therefore, protecting water
bodies must be given as much weightage, if not more as allowing house-sites
or other buildings to come up on such tanks or tank poramboke lands, and
water charged lands.
(e) The State shall also bear in mind the provisions of this Act and the objects
and reasons of this Act while issuing patta to persons who claim to have
resided in the same place for a number of years and if necessary modify the
relevant Government Orders to make sure that the implementation of these
G.Os. are not in violation of this very valuable and important Act, namely
Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007.”
16. The Hon'ble Division Bench of our High Court in W.P. No. 26364 to 26376 of
2017 dated 10.10.2017, held as follows:
“8. A perusal of the typed set of documents filed in support of these writ
petitions would reveal a shocking and sorry state of affairs. Admittedly, the
petitioners are ranked encroachers and however, the concerned revenue
officials have failed to take action at the relevant point of time and therefore,
allowed them to perpetuate the illegality and the petitioners/their
predecessors have, not only stopped with the illegal act of encroachment; but
also got emboldened on account of the inaction on the part of the revenue
officials as well as the Local Body officials and proceeded to construct palatial
superstructures, without any authorisation or planning permission and also
leased out the same for commercial purposes. It appears that it was/is a
deliberate and wilful act on the part of the revenue officials as well as the
Local Body officials as to the non-taking of any action to abate such
illegalities.”
“The respondents shall cause inspection of the entire area in question and
identify the encroachers as well as the unauthorised/deviated constructions
and take necessary and appropriate action within a period of ten weeks from
the date of receipt of a copy of this order and file a COMPLIANCE REPORT to
this Court.”
“The Administrative Department of the Government is directed to identify
the officials concerned as to the continued laxity and exhibition of callousness
and apathy in performing/discharging their official duties and neglect in
protecting the assets of the Government and initiate appropriate Departmental
and Criminal action and also file a Status Report.”
17. From the said judgments delivered based on the legal principles settled by
the Hon'ble Apex Court of India, it is clear that all “Kuttai Poramboke”, “Pond
Poramboke” and other Poramboke lands belongs to the Government are to be
preserved for protecting the Environment and for the usage of the public at large.
In this case, it is categorically admitted even by the writ petitioners' that they have
encroached the Government Poramboke land and it was classified as “Vari
Poramboke lands” and “Pond Poramboke lands”, which all are water bodies. Thus,
there cannot be any leniency or misplaced sympathy in respect of such
encroachments of the Government land and the authorities competent are duty
bound to protect the same in all respects. However, this Court is able to find out
that the officials have miserably failed to protect such valuable lands of the
-----------------------------------------------------------------------------------------------------------------------------------------------------------
Government and submitted frequent proposals in favour of the writ petitioners' on

extraneous considerations, enabling them to pursue the matter for getting
permission in an illegal manner. Thus, the public officials have colluded with the
writ petitioner company for the purpose of the continuance of encroachment of such
Government Poramboke lands. All such Government officials are liable for
prosecution and suitable disciplinary proceedings are also to be initiated against
such persons. The Government officials are the abettors and have equally
committed an offence by assisting the writ petitioners' to encroach the land and
continue in the encroached land for the past about many years. Thus, the officials
concerned are equally responsible.
18. This Court is able to find that the Sub-Collector, Ariyalur, who passed the
impugned order alone has realized the fact and rejected the claim of the writ
petitioner. Thus, the actions are to be initiated against all the officials, except the
Sub-Collector, Ariyalur, who passed the impugned order in this writ petition.
19. Considering the arguments as advanced by the learned counsel for the writ
petitioner as well as the learned Special Government Pleader, this Court has to
consider, whether it is right on the part of the writ petitioner to encroach the
Government Poramboke land and thereafter, write a letter, seeking permission to
lay Railway Tracks. Whether the writ petitioner is right in continuing the industrial
establishment by encroaching the Government land without even obtaining
permission from the Government. This apart, the subsequent proposal to provide an
alternate land for exchange is also not made clear by the writ petitioner. Contrarily,
the respondents stated that the proposed alternate land suggested by the writ
petitioner also belongs to the Government and it is not the land belongs to the writ
petitioner. Under these circumstances, this Court has to examine whether the writ
petitioner has shown their highhandedness in respect of encroaching the
Government land with the hope that the Government will not raise any objection.
This Court has to further examine that whether the public servants/respondents
have acted prudently and diligently in maintaining the public lands meant for the
welfare of the public at large. The Possibility of collusion and corrupt activities of the
Government officials are also to be examined in such nature of cases, where the
petitioner like corporate sector has encroached the public lands and laid Railway
Tracks by digging the water body for about 30 ft. and utilizing the same for
commercial purposes, thereby depriving the people of that locality to utilize the
water bodies and the public pathway. All these questions are to be addressed in
such nature of cases.
20. Admittedly, the writ petitioner has encroached the land belongs to the
Government. In paragraph 7 of the affidavit filed in support of the writ petition
categorically states that “9.55 K.M railway path identified by the petitioner company
included lands under the Government Poramboke measuring a total extent of nearly
9.12 acres”. The petitioner made an application dated 05.05.2009, bearing No. 549
with the 1st respondent to utilize the specified Government Poramboke land,
thereby agreeing to pay the prescribed fee, if any, to the Government, of which, a
copy was also sent to the 3rd and 4th respondents. Thus, it is unambiguous that the
writ petitioner has encroached the land belongs to the Government without any
authority. It is an admitted fact and therefore, factual presumption is to be drawn
that the petitioner has usurped the powers of the State with an understanding that
nobody can raise any objection in respect of such encroachments. Otherwise also,
they are under the impression that no person in the Village can raise any objection
in view of their strength and they are confident that they can get such permission
even after encroachment. Such an attitude of the writ petitioner can never be
tolerated. If the Corporate Sectors started encroaching the public lands with the
fond hope that they can violate the rule of law and get permission from the
-----------------------------------------------------------------------------------------------------------------------------------------------------------
Government in their own way, then the Courts cannot witness the same as mute
spectator. Such an attitude of the writ petitioner is certainly unwarranted and is to
be deprecated.
21. The frequent internal correspondences between the respondents are clear
that they wanted to assist the writ petitioner on extraneous considerations. On a
perusal of the internal communication between the respondents 3, 4, 5, 6 & 7, this
Court is of a strong opinion that there is a possibility of collusion in order to help
the writ petitioner one way or other. This Court cannot have any objection to help
for the development of an Industry. In fact, this Court has to positively look into the
industrial advancements and developments in our great Nation. However,
considering the process of developing the industries and corporates, the persons,
who all are desiring to commence such industrial activities, must know that they
are bound by the rule of law and the norms fixed and the law in force, must be
followed for the commencement of industrial activities. Such industries cannot
encroach upon the Government land, which is not only a water body, but also used
as a pathway by the Villagers and the people of that locality. Thus, the collusion in
this regard by the authorities are also to be investigated by the State Government.
There is a possibility of corrupt activities also and the investigating authority must
examine all these aspects based on the internal correspondences shared between
the respondents for several years and thereby allowing the writ petitioner to enjoy
the Government land for about many years. The language used in the internal
correspondences are self-explanatory that the authorities have taken steps to ratify
the illegality committed by the writ petitioner. It is not an irregularity, but certainly
an illegality. The illegality committed by the persons cannot be condoned in a
routine manner. The illegalities are to be dealt with in accordance with law. When
the authorities came to understand that the writ petitioner has committed an
illegality, then they are bound to initiate appropriate action under the provisions of
law. Thus, all those officials, who have shared the internal communication in order
to help the writ petitioner in an illegal way, must be prosecuted and suitable
disciplinary actions are to be initiated by the competent authorities. Once the
illegality is found, it is duty mandatory on the part of the public servants to ensure
that proper actions are initiated against all such illegalities. Contrarily, they are
going on writing letters and sharing informations, knowing the fact that the
Government has not granted any permission or assignment in favour of the writ
petitioner. When the Sub Ordinate officials have indulged in such correspondences
intentionally and knowing that the Government has not granted permission, there is
no reason to approve the conduct and the manner in which they dealt with the
matter relating to encroachment of public lands. Thus, the conduct of the
Government officials concerned in this regard are certainly reprehensible and
suitable actions are certainly warranted.
22. On a perusal of the impugned order, the Sub-Collector has categorically
made a finding that the writ petitioners' have encroached the Government land and
laid Railway Tracks by digging in the encroached land 30 ft. depth and 60 ft.
breadth. The alternate land suggested for exchange is also classified as “Cart Track
Poramboke lands”. Therefore, the writ petitioner has made an attempt to cheat the
Government by providing another Government land as an alternate land for
exchange. The attitude of the writ petitioner in this regard deserves all further
actions in accordance with the provisions of the Tamil Nadu Land Encroachment Act,
1905. The Sub-Collector has clearly stated that the land owners Easementary right
has been encroached by the writ petitioner company, while forming the Railway
Track in the Government Poramboke Lands. It is categorically established by the
respondents 8 to 14 that the pattadars could not reach their land for cultivation,
and could not carry the agricultural produce as well as the implements thereby
-----------------------------------------------------------------------------------------------------------------------------------------------------------
affecting their livelihood and found rights on account of the encroachment of the
Government land committed by the writ petitioner company. The land encroached
was classified as “Vari Poramboke lands”, which all are prohibited water bodies by
the Hon'ble Supreme Court. Some of the lands are “Pond Poramboke lands” and in
the course of forming of Railway Track by digging to the depth of 30 ft, the natural
water ways in these lands have been damaged, thereby hindering natural water
flow leading to the curtailment of irrigation for agriculture. The lands to which
exchange proposal is put forth by the company are “Cart Track Poramboke lands”.
Thus, on account of the large scale of encroachment of Government lands by the
writ petitioner company, the nearby land owners have lost their usual pathway
rights. The findings of the District Collector is certainly an alarming factor for this
Court. The writ petitioners' have encroached the water bodies and the Apex Court
and this Court has passed number of orders, stating that the water bodies are to be
protected in all respects. When there is an encroachment in the water body namely
“Vari Poramboke lands”, “Pond Poramboke lands”, this Court is unable to
understand, why the official respondents have not taken any action to remove all
such encroachments by following the procedures as contemplated under the
provisions of Tamil Nadu Protection of Tanks and Eviction of Encroachment Act,
2007. The present Sub-Collector, who passed the impugned order has categorically
stated that the writ petitioners' have encroached the public lands, which includes
water bodies and “Pond Poramboke lands”. Such being the factum, why the earlier
officials, who had indulged in sharing internal correspondences, have not initiated
proper legal action to evict the encroachers in respect of the Government lands,
which all are classified as water bodies. In this regard, a detailed investigation and
an enquiry is certainly warranted and all the officials, who have acted unbecoming
of a public servant are to be prosecuted under the penal provisions as well as under
the disciplinary laws.
23. This being the view taken by this Court, there is no infirmity as such in
respect of the impugned order passed by the 2nd respondent/The Sub-Collector,
Ariyalur, in proceedings dated 10.02.2015 and accordingly, the writ petition is
devoid of merits. However, taking note of the internal correspondences between the
Government officials and the manner in which the Government lands including the
water bodies are systematically allowed to be encroached by the corporates like the
petitioner, this Court is inclined to pass the following orders.
(i) The writ petitioner, admittedly, an encroacher of the Government land, has
not established even a semblance of right to grant the relief as such sought
for in the present writ petition. Accordingly, the claim of the writ petitioner is
rejected.
(ii) The respondents 2 and 3 are directed to evict all the encroachments of the
“Government Poromboke lands”, “Vari Poramboke lands”, “Pond Poramboke
lands” and all other public lands in that locality within a period of Two Weeks
from the date of receipt of a copy of this order.
(iii) The Superintendent of Police, Ariyalur, is directed to provide necessary Police
protection to the respondents 2 and 3 to evict the encroachers from the public
lands in all respects.
(iv) The first respondent is directed to order for an enquiry or investigation to be
conducted by an I.A.S. level officer in respect of the conduct of the officials of
the District Administration and the officials of the Public Works Department in
respect of their conduct, negligence, dereliction of duty, corrupt activities,
illegalities and to submit a enquiry report within a period of two Months from
the date of receipt of a copy of this order.
(v) On receipt of an Investigation/Enquiry report, the first respondent is directed
-----------------------------------------------------------------------------------------------------------------------------------------------------------
to initiate all appropriate actions against all the public servants and all other
persons concerned under the penal provisions of law and under the Discipline
and Appeal Rules.
24. With these directions, the writ petition stands disposed of. However, there
shall be no order as to costs. Consequently, connected miscellaneous petitions are
also closed”.
9. The respondent/The Tahsildar also filed a counter affidavit categorically narrating
that the land in question is classified as “Sakkilikuttai” and other persons are also in
encroachment of that locality. Such being the factum now placed before this Court,
this Court has no hesitation in holding that all such encroachers in water bodies, water
resources and other lands are to be evicted by following the procedures as
contemplated under law otherwise there is no infirmity in respect of issuance of the
notice under the provisions of the Tamil Nadu Land Encroachment Act, 1905. Except
the point raised by the writ petitioner that others are allowed to continue in the
encroached land, there is no other legal impediment in this regard. Thus, the
respondents are bound to issue notice to all the encroachers uniformly without causing
any discrimination and evict the encroachers by following the procedures as
contemplated.
10. It is needless to mention that the case of the poor landless persons are to be
considered for the purpose of providing a free house site by formulating a scheme and
by following the terms and conditions issued by the Government in this regard. While
implementing all such welfare schemes to provide free house sites, the landless poor
people, the authorities competent are to follow the uniformity and all other eligible and
similarly placed persons, are to be considered for grant of such free house sites under
the Government Scheme. Thus, the writ petitioner is as a matter of fact any other
person in that locality is not possessing any other property or poor, then they can
submit an application for the purpose of grant of free house sites under Government
schemes and at the time of implementation of such schemes, the authorities
competent shall consider all the cases without any discrimination and by following the
procedures as contemplated. Contrarily, the people cannot be allowed to encroach
upon the Government land, water bodies and water resources.
11. Thus, this Court is of an opinion that the impugned notice issued under Section
6 of the Tamil Nadu Land Encroachment Act is in accordance with law and there is no
infirmity as such. In view of the fact that a larger collusion has been raised by the
learned counsel for the writ petitioner that there are many encroachments in that
locality, it is necessary to pass the following orders in the present writ petition.
(i) The relief as such sought for in the present writ petition stands rejected.
(ii) The District Collector, Salem District/1st respondent is directed to conduct a
Review Meeting with the concerned officials of all the Departments to identify all
the encroachments in water bodies, water resources and Government Poramboke
lands in Salem District within his jurisdiction within a period of two weeks from
the date of receipt of a copy of this order.
(iii) The District Collector, Salem District/1st respondent is directed to issue suitable
orders/instructions/circulars to all the concerned officials to initiate immediate
action to evict all such encroachers in Government Poramboke lands, water
bodies, water resources within his jurisdiction by following the procedures as
contemplated under the provisions of the Tamil Nadu Land Encroachment Act,
1905 or Tamil Nadu Protection of Tank and Eviction of Encroachment Act, 2007,
which ever is applicable.
(iv) In the event of any failure, negligence or dereliction of duty on the part of the
officials concerned, then the District Collector, Salem District is directed to
initiate appropriate prosecution and departmental disciplinary proceedings
-----------------------------------------------------------------------------------------------------------------------------------------------------------
against all such Government officials under the Discipline and Appeal Rules in
force. Such a Clause must be stated in the circular/instructions to be issued by
the District Collector, while directing the officials concerned to identify the
encroachments in Public lands, water bodies and water resources for the purpose
of eviction. It is made clear that there cannot be any leniency or misplaced
sympathy in respect of the actions to be taken against all such inefficient officials
and the officials, who are committing an act of dereliction of duty.
(v) Suitable Circulars/instructions to be issued by the District Collector, Salem
District to all the officials concerned to protect the Government Poramboke lands,
Government properties, water resources and water bodies in the manner
prescribed under law.
(vi) The Superintendent of Police, Salem District is directed to provide adequate
protections to all the officials concerned for the purpose of initiating actions to
evict the encroahers from the Government Poramboke lands, water bodies and
water resources in Salem District.
12. With these directions, the writ petition stands disposed of. However, there shall
be no order as to costs. Consequently, connected miscellaneous petition is closed.
13. Post this matter “for reporting compliance” on 26.02.2019.
———
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/
notification is being circulated on the condition and understanding that the publisher would not be liable in any manner by reason of any mistake
or omission or for any action taken or omitted to be taken or advice rendered or accepted on the basis of this casenote/ headnote/ judgment/ act/
rule/ regulation/ circular/ notification. All disputes will be subject exclusively to jurisdiction of courts, tribunals and forums at Lucknow only. The
authenticity of this text must be verified from the original source.

J 2019 SCC OnLine Mad 378 Valana Ug19 Tnnluacin 20230622 205529 1 13

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

J 2019 SCC OnLine Mad 378 Valana Ug19 Tnnluacin 20230622 205529 1 13

Uploaded by

Copyright:

Available Formats

SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.

Page 1 Thursday, June 22, 2023

2019 SCC OnLine Mad 378

In the High Court of Madras

K. Lakshmanan .…. Petitioner;

villagers to suffer merely because the unauthorized occupation has subsisted

public health of the community.

Government and submitted frequent proposals in favour of the writ petitioners' on

You might also like