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IN THE HIGH COURT OF MADRAS AT MADURAI BENCH
T.S. Sivagnanam, R. Tharani, JJ.
M. Jeyasudha – Appellant
Versus
The District Collector, Tuticorin District and Ors. – Respondents
W.P. (MD) Nos. 21908, 20959, 21661, 21662, 21664, 21665, 21666, 21667, 21668, 21669, 21670, 21671, 21672, 21673, 21674, 21675, 21676, 21677, 21678, 21679, 21680, 21681, 21682, 21683, 21684, 21685, 21686, 21687, 21694, 21695, 21696, 21698, 21699, 21700, 21701, 21702, 21703, 21704, 21705, 21707, 21708, 21710, 21711, 21712, 21715, 21716, 21721, 21722, 21738, 21739, 21741, 21749, 21751, 21810, 21813, 21814, 21817, 21818, 21821, 21822, 21823, 21827, 21828, 21830, 21831, 21832, 21835, 21837, 21848, 21851, 21853, 21854, 21857, 21860, 21862, 21911, 21914, 21918, 21919, 21927, 21929, 21931, 21940, 21944, 21946, 21948, 21950, 21954, 21961, 21965, 21967, 21970, 22307 of 2019, 6436 of 2018, W.M.P. (MD) Nos. 17539, 17540, 17541, 18357, 18358, 18359, 18360, 18361, 18362, 18363, 18364, 18365, 18366, 18367, 18368, 18369, 18370, 18371, 18372, 18373, 18374, 18375, 18376, 18377, 18378, 18379, 18380, 18381, 18382, 18383, 18384, 18385, 18386, 18387, 18389, 18390, 18391, 18392, 18393, 18394, 18396, 18397, 18398, 18399, 18400, 18401, 18402, 18403, 18404, 18405, 18406, 18407, 18411, 18413, 18415, 18416, 18417, 18418, 18419, 18420, 18421, 18422, 18423, 18424, 18425, 18426, 18427, 18428, 18429, 18430, 18431, 18432, 18433, 18434, 18541, 18542, 18544, 18546, 18547, 18548, 18550, 18552, 18553, 18554, 18557, 18558, 18559, 18560, 18561, 18562, 18563, 18564, 18565, 18566, 18567, 18569, 18570, 18571, 18572, 18573, 18574, 18575, 18576, 18577, 18596, 18598, 18599, 18600, 18601, 18602, 18603, 18604, 18606, 18607, 18611, 18612, 18614, 18615, 18668, 18670, 18671, 18672, 18673, 18674, 18677, 18678, 18681, 18682, 18688, 18689, 18691, 18692, 18693, 18694, 18700, 18701, 18703, 18704, 18706, 18707, 18709, 18710, 18712, 18714, 18717, 18718, 18721, 18722, 18725, 18726, 18728, 18729, 18730, 18731, 19075, 19076, 19304 of 2019 and 6246, 8581 of 2018
Decided On : 20-12-2019
Reliefs sought for in all these writ petitions are identical and hence, the writ petitions were heard together and are disposed of by this common order is taken as a lead case and it would suffice to refer to the facts stated therein – Petitioners have filed the writ petitions for issuance of a writ of certiorari to quash the order, passed by the Tahsildar, Kovilpatti Taluk, by which the Tahsildhar directed the petitioners to vacate the encroachments in the odai poramboke and also to remove the shops constructed by the fourth respondent Temple on the top of the odai – In the impugned order, there is a reference to an order, passed by this Court in W.P.(MD) etc. batch. –J said writ petitions were filed challenging the eviction notice, dated petitioners therein contended that the land is classified as "Grama Natham" and therefore, the provisions of the Tamil Nadu Land Encroachment Act are not applicable –Held, Court do not appreciate the stand taken by the fourth respondent Temple and the permission granted by the Board of Revenue does not in any manner elevate the status of the Temple as the owner of the supply channel or the owner of the superstructure put up over it – demur of the order passed by the Board of Revenue will clearly show that such permission was granted on equitable consideration as there were small traders, who used wooden posts/pillars and put up small wooden planks – Court find from the photographs produced by the learned counsel for the fourth respondent is pucca concrete shops and there is hardly two feet gap between the road and the floor of the shops and in between the so-called odai is seen – Thus, the conditions stipulated by the Board of Revenue have not been adhered to – Court have already pointed out, the minor error committed by the Tahsildar is to issue notices to the writ petitioners and the proper procedure that should have been adopted is to issue notice to the fourth respondent and thereafter, proceed in accordance with law – Writ petitions are allowed.
ORDER :
T.S. Sivagnanam, J.
1. The reliefs sought for in all these writ petitions are identical and hence, the writ petitions were heard together and are disposed of by this common order.
2. W.P.(MD) No. 21908 of 2019 is taken as a lead case and it would suffice to refer to the facts stated therein.
3. The petitioners have filed the writ petitions for issuance of a writ of certiorari to quash the order, passed by the Tahsildar, Kovilpatti Taluk, dated 24.09.2019, by which the Tahsildhar directed the petitioners to vacate the encroachments in the odai poramboke and also to remove the shops constructed by the fourth respondent Temple on the top of the odai. In the impugned order, there is a reference to an order, dated 12.09.2019, passed by this Court in W.P.(MD) Nos. 19561 of 2019 etc. batch. The said writ petitions were filed challenging the eviction notice, dated 22.08.2019. The petitioners therein contended that the land is classified as "Grama Natham" and therefore, the provisions of the Tamil Nadu Land Encroachment Act are not applicable. The Court having found that the classification of the land is "Odai", held that the petitioners therein cannot remain in possession of the land. In the light of the said conclusion, the writ petitions were dismissed and an observation was made to the effect that if there is any encroachment, which is yet to be removed, the respondents shall remove the same completely within a period of fifteen days and seek Police assistance, if required. The third respondent has referred to this order and direction in the impugned notice.
4. Mr. Ajmal Khan, learned Senior Counsel, assisted by Mr. M. Mahaboob Athiff, learned counsel for the petitioners, submitted that the petitioners are small vendors and eking their livelihood by running petty shops and other small businesses and the shops have been leased out to them by the fourth respondent Temple, which is a Temple falling under the control of the Tamil Nadu Hindu Religious and Charitable Endowments Department. It is further submitted that Kovilpatti Town was originally an inam village and was in possession and enjoyment of the fourth respondent Temple. After the enactment of the Inam Estate Abolition Act, 1948, the inam was subjected to the provisions of the Act. It is submitted that there was a water channel called "Sevalkulam", which was originally part of the inam, but after the 1948 Act, the water channel was vested with the Government.
5. It is further submitted that in the year 1958, a dispute arose between the Government of Tamil Nadu and the fourth respondent Temple with regard to the right over the shops and the channel. This culminated in an order passed by the Board of Revenue, dated 14.09.1960, holding that the channel belongs to the Government. With regard to the shops, it is submitted that the fourth respondent Temple was permitted to construct shops on permanent basis by erecting posts and pillars and conditions were also imposed. Pursuant to the same, the fourth respondent Temple had erected high pillars and constructed shops.
6. Further, it is submitted that during 2018, when there was an attempt made to demolish the shops, the Association in which all the traders were members, filed a writ petition in W.P.(MD) No. 6436 of 2018 to forbear the respondents from in any manner evicting or demolishing the shops. This Court granted an order of injunction on 23.03.2018 and it is submitted that the said writ petition is still pending.
7. It is submitted that when the above is the factual situation, the third respondent is not justified in issuing the impugned notice treating the petitioners as encroachers especially, when he is fully aware of the pendency of W.P.(MD) No. 6436 of 2018. Further, it is submitted that the writ petition in W.P.(MD) No. 19561 of 2019 etc., batch were filed by the encroachers in a waterbody and they are not in lawful possession of the premises and therefore, the observations made in the said order can be applied to the enc
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