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2022 Supreme(Mad) 2807
IN THE HIGH COURT OF JUDICATURE AT MADRAS
C.V. KARTHIKEYAN, J.
State of Tamilnadu, Rep. by District Collector, Thiruvarur & Others - Appellant
Versus
Muthian - Respondent
S.A. No. 759 of 2005 & CMP. No. 10611 of 2005
Decided On : 08-08-2022
For the Appellant:E. Vijay Anand, Addl. Government Pleader. For the Respondents:A.E. Lakshmi Narayanan, Advocate.
Courts can uphold removal of illegal constructions obstructing public resources and may find permanent injunction unjustifiable in such cases.
Headnote:
Injunction - Property Dispute - O.S.No.74 of 1999 - R.S. No. 38-13, Nannilam Taluk, Thiruvidaimuruthur in Thanjavur District - Section 100 of CPC
Fact of the Case:
The plaintiff filed a suit seeking permanent injunction against the defendants from interfering with peaceful possession of the suit property, and later amended the relief to seek mandatory injunction to restore encroached land and damages.
Finding of the Court:
The courts found that the constructions by the respondent obstructed a water body and justified the removal by the defendants. The grant of permanent injunction was deemed unjustifiable, and damages were set aside.
Issues: Identity of the suit property and compliance of natural justice in demolishing constructions over a water body.
Ratio Decidendi: The courts upheld the removal of illegal constructions obstructing a water body and found the grant of permanent injunction unjustifiable. The respondent's constructions were deemed illegal and polluting.
Final Decision: The second appeal was allowed, setting aside the judgments and decree of both lower courts, and the suit was dismissed.
JUDGMENT
(Prayer: The Second Appeal filed under Section 100 of CPC, against the judgment and decree made in A.S.No.5 of 2002 dated 30.12.2003 on the file of the Sub Court, Thiruvarur confirming the judgment and decree made in O.S.No.74 of 1999 dated 10.08.2001 on the file of the District Munsif Nannilam.)
1. The defendants, State of Tamil Nadu, represented by its Collector, Thiruvarur District, the Divisional Engineer, Cauvery Basin Divisional Office, (PWD), Thanjore District and the Junior Engineer, Public Works Department, Cauvery Basin Divisional Office, Kumbakonam, in O.S. No. 74 of 1999, on the file of District Munsif Court, Nannilam, are the appellants herein.
2. The said suit in O.S. No. 74 of 1999 had been filed by the plaintiff, Muthian, originally seeking permanent injunction restraining the defendants from interfering with peaceful possession of the suit property, and later after amendment, seeking mandatory injunction to restore the portion of 1 ½ cents encroached by the defendants to their original state and also for damages of Rs. 29,000/- and for costs of the suit.
3. The suit schedule property as stated in the plaint after amendment was punjai lands measuring 0.05 cents in R.S. No. 38-13, Nannilam Taluk, Thiruvidaimuruthur in Thanjavur District. The only amendment in the schedule was addition of the measurement of the land, namely, 0.05 cents.
4. By judgment dated 10.08.2001, the learned District Munsif, Nannilam, partly decreed the suit by granting the relief of permanent injunction against the defendants, and by granting reduced damages of Rs.10,000/- as against the 2nd and 3rd defendants, but dismissing the suit with respect to the relief of mandatory injunction.
5. The defendants then filed A.S. No. 5 of 2002 before the Sub Court, Thiruvarur. The plaintiff did not file any cross appeal against the refusal to grant the relief of mandatory injunction. By judgment dated 30.12.2003, the learned Sub Judge dismissed the appeal and confirmed the judgment of the trial Court.
6. Aggrieved by the said judgment, the defendants the filed the present second appeal.
7. The second appeal had been admitted on the following substantial questions of law :
a. “Whether the Courts below are right in giving the finding as regards the identity of the property subjected in the suit ? and
b. Whether the Courts below failed to see that the compliance of natural justice was observed while the lands are taken for the purposes of desilting and widening the river bunds ?”
8. Heard arguments advanced by Mr E. Vijay Anand, learned Additional Government Pleader on behalf of the appellants/defendants in the suit and by Mr. A.E. Lakshmi Narayanan, learned counsel for the respondent/plaintiff in the suit.
9. The suit in O.S. No. 74 of 1999 was originally filed seeking permanent injunction against the appellants herein from interfering with peaceful possession of the suit schedule property. Later, since the appellants had demolished constructions put up by the respondent in the adjoining land, which were admittedly a water body, the relief was amended to seek mandatory injunction to restore the constructions and to pay damages.
10. Both the Courts below had concurrently found as a fact that the respondent herein had put up constructions like latrine and septic tank in the land adjoining his patta land. The courts below had justified the action of the appellants in removing those constructions, as they obstructed the water body and had to be removed to facilitate desilting the water body.
11. The respondent had not challenged refusal by both the courts below to grant the relief of mandatory injunction. This would only imply that there is implicit acceptance that the constructions were actually over the water body.
12. The two substantial questions of law framed at the time of admission of the second appeal can be taken up for discussion together, since the facts are intricately intertwined.
13. The first substantial question of law is with respect to t
