@JUDGMENTTAG-ORDER
M. Sathyanarayanan, J.@mdashThe Writ Petition is filed in public interest wherein the petitioner has prayed for issuance of Writ of Mandamus, directing the respondents 1 to 3 to take action on his representation dated 14.07.2007. As per the averments in the affidavit filed in support of this writ petition, the petitioner is a resident of Vallur village, Ponneri Taluk and he is also the Councilor for Ward No. III.
2. In Vallur village, Ponneri Taluk, a company by name M/s.Satelite Town Development Pvt. Ltd., developed nearly 79.27 acres of vacant lands into housing plots and also obtained approval for the lay out from the appropriate authority in PPD/LO. No. 242/90 dated 22.11.1990. As per the approved lay out, 782 plots were demarcated.
3. The above said company while getting approval for the said lay out, had gifted about 25.45 acres of land to the Local body namely Minjur Panchayat Union by means of a registered Gift Deed dated 02.12.1989 before the Sub Registrar, Thiruvottiyur. It was for the reason that only in the event of gifting certain extent of lands to the local body for public purposes, the approval of lay out will be given. After approval, the said company had sold an extent of 56.24 acres of land to the fourth respondent by way of registered sale deed dated 10.05.2006 registered as Document No.3046 of 2006 in the Office of the Sub Registrar, Thiruvottiyur.
4. It is also contended by the petitioner that the fourth respondent after their purchase, had started to put up compound wall around the entire stretch of the land purchased by him including the land gifted to the third respondent Panchayat Union and thereby claiming exclusive ownership of the entire land including the land which is reserved for public purposes gifted to the third respondent. Consequently, the residents of Vallur village has been deprived of use of the said land for the public purposes. In this connection, the petitioner had submitted a representation dated 14.07.2007 to the first respondent and also marking copies to the other respondents and since there was no response, was constrained to file the writ petition.
5. The respondents 1 and 3 had filed their counter and after filing of the counter, the Tahsildar was directed to inspect the lands in question to find out whether there is any encroachment in the land gifted to Minjur Panchayat Union. Since the report was not received, this Court by order dated 11.01.2007, had directed the Tahsildar, Ponneri, to submit his report within a period of two weeks from the said date. On an earlier occasion, it was represented on behalf of the petitioner that in-spite of interim orders passed in the writ petition, the fourth respondent was proceeding with the construction. Therefore, this Court vide order dated 29.10.2007, had appointed Mr.G.Jermiah, Advocate, to carry out the inspection of the site in question along with the Tahsildar, Ponneri Taluk and to report about the present status of direction made by the fourth respondent to the Court.
6. In pursuant to the above said orders, the Tahsildar, Ponneri. has submitted his report dated 26.10.2007 and the learned Advocate Commissioner after inspection has also submitted his report dated 05.11.2007.
7. The third respondent has filed his counter affidavit stating that M/s.Satelite Town Development Pvt. Ltd., at the time of granting approval for their lay out, had gifted nearly 25.45 acres of land to the third respondent Panchayat Union vide registered gift deed dated 02.12.1989 for the purpose of private park, school, road and other public utilities. It has been further averred in the said counter that no construction will be permitted in the land earmarked for the public purposes. However, the fourth respondent had started construction without obtaining any planning permission. When it was brought to the knowledge of the third respondent Panchayat Union, through the representation of the petitioner dated 14.07.2007, the officials of the third respondent made a spot inspection on 07.08.2007 and the CMDA was also intimated of the same. The CMDA has also issued a Stop Work Notice to the fourth respondent.
8. It is further stated by the third respondent that a letter dated 12.09.2007 was sent to the Tahsildar, Ponneri, to inspect as to whether there is any encroachment in the land gifted to the Minjur Panchayat Union and it is not yet received. The third respondent has indicated in his counter that the legal proceedings will be initiated if there is any encroachment.
9. The Tahsildar Ponneri has filed his report dated 26.10.2007. As per his report, out of 25.45 acres of land gifted to the third respondent Panchayat Union by M/s.Satelite Town Development Pvt. Ltd., the fourth respondent had encroached an extent of 21.65 acres of land and the said report also contains the details of encroachment along with the sketch.
10. The learned Advocate Commissioner in his report dated 05.11.2007, has stated that the disputed site lies to the east of a Kutcha 60 feet road running north to south and the entire area was water logged and marshy and there is no habitation within the radius of 2 Km. The entire lay out area is enclosed by a granite stone compound wall on the eastern side topped with barbed wires.
11. The entire area is lying vacant and no road is lying as per the approved plan. It is further stated by the learned Advocate Commissioner that after identifying the road in the approved lay out, he was able to know that the said construction was put up by M/s.India Cements Limited, who has been subsequently impleaded as fifth respondent in this writ petition. A shed was constructed by encroaching on the 30 feet road laid out in S. No. 1502/1 on the north eastern corner to an extent of 23 X 8 feet. The road is a branch road running from east to west in the same survey number.
12. The learned Advocate Commissioner has further stated that the fifth respondent has constructed a silo in S. No. 1502/2 and except encroachment for the 23 X 8 feet over the 30 feet road, no other building activities is being carried out over the extent of land covered under the gift deed dated 02.12.1989.
13. The respondents 4 and 5 had filed the common counter. In the said counter, it has been stated that the report of the Tahsildar, Ponneri has been made without notice to them. The fourth respondent has purchased a total extent of 56.24 acres of land from one Gowri Shankar and others for valuable consideration by means of a registered sale deed dated 10.05.2006, registered as document No.3046/06 on the file of the Sub Registrar, Thiruvottiyur. The fifth respondent also purchased the land measuring to an extent of 34.69 acres from the same person by means of a registered sale deed dated 10.05.2006. It is further stated in the counter that as regards the encroachment pointed out by the learned Advocate Commissioner in his report, that the encroachment on 30 feet road is a branch road running from east to west and the construction work is only in S. No. 1502/02 which is their absolute property. The lands covered in the lay out in S. No. 1502/1 and other lands surrounded the said road, have been purchased by them. It is specifically stated by the respondents 4 and 5 in their counter that 30 feet road shown in the lay out in S. No. 1502/1, has no utility for public and only the fifth respondent has access in the road as the said road is a branch road surrounded on all sides by the properties purchased by them.
14. The respondents 4 and 5 had also taken the stand that the approved lay out has not been utilised for the purposes for which it was developed. Due to enormous industrial growth in the said locality, it has virtually become an industrial zone and the fifth respondent had also applied for reclassification of the lands into general industrial zone and necessary steps have been taken and the order is expected very soon. In the said counter, the fifth respondent had also given an undertaking that it is ready to provide 30 feet land adjacent to the lay out road which should not in any manner affect the interest of any person as the fifth respondent alone is the owner of the properties of all sides of the road and the said road is also ending with the lands purchased by them in S. No. 1502/2 which is not the subject matter of the lay out. The respondents 4 and 5 also took a stand that the present writ petition has not been filed in public interest, but only to wreck vengeance on them.
15. Heard the learned Counsel for the petitioner, Mr.K.Ilango, Special Government Pleader for the respondents 1 to 3 and Mr.N.R.Chandran, learned Senior Counsel for Mr. G.R. Lakshmanan, learned Counsel for the respondents 4 and 5 and Mr.G.Jermiah, learned Advocate Commissioner.
16. The learned Counsel for the petitioner had made his submissions based on the averments in the petition and also placed reliance upon the reports of the Tahsildar, Ponneri and the learned Advocate Commissioner and also the counter affidavit filed by the third respondent.
17. It is submitted by the learned Counsel for the petitioner that in view of the report filed by the Tahsildar, Ponneri coupled with the counter filed by the third respondent, action to be taken against the respondents 4 and 5, in respect of the act of encroachment committed by them and the lands gifted to Minjur Panchayat Union by way of gift deed, are to be recovered and the lands should be used for public purpose.
18. Per contra, the learned Senior Counsel for the respondents 4 and 5 has submitted that no public interest is involved as the petitioner happened to be a Ward Councilor and he has filed the writ petition with oblique motive. It is further submitted by the learned Senior Counsel for the respondents 4 and 5 that though the approval was given for developing lands as the house sites, the fact remains that no houses have been constructed and due to enormous industrial activity in that area, it has virtually become the industrial zone. The respondents 4 and 5 also had taken steps by making representations to the appropriate authority for reclassification of the area in which the lands in question are situated to that of industrial area and orders are expected very soon.
19. It is also submitted by the learned Senior Counsel for the respondents 4 and 5 that since the respondents 4 and 5 had purchased 56.24 acres of land under the registered sale deed dated 10.05.2006 and 34.69 acres of land under the registered sale deed dated 10.05.2006 respectively, the entire lands are in their occupation and they are going to utilise the same for industrial purposes and in that event, ultimately the State of Tamil Nadu is at large and the people of that locality in particular, will be benefited as there will be generation of employment for the local people.
20. The learned Senior Counsel also invited the attention of this Court to the undertaking given in the counter affidavit filed by the fifth respondent that it is ready to provide 30 feet of land adjacent to lay out road, in lieu of alleged encroachment pointed out in the Commissioner''s report.
21. We have also heard the learned Advocate Commissioner who has made his sub-missions based on his report dated 05.11.2007.
22. We have carefully considered the submissions made by the Counsel appearing on either side and also perused the entire materials available on record.
23. As per the counter affidavit of the third respondent, the lands measuring to an extent of 25.45 acres were gifted to the third respondent Panchayat Union by means of a registered gift deed dated 02.12.1989 by M/s.Satelite Town Development Pvt. Ltd.. who developed the said plot and it is to be used for public purpose. The Tahsildar, Ponneri in his report dated 26.10.2007, has indicated that out of 25.45 acres of land gifted to the third respondent Panchayat Union, by M/s.Satelite Town Development Pvt. Ltd., under the gift deed dated 02.12.1989. The fourth respondent had encroached nearly 21.65 acres.
24. The learned Advocate Commissioner in his report dated 05.11.2007, has indicated that the fifth respondent had encroached on 30 feet road laid out in S. No. 1502/1, at north eastern corner to an extent of 23 X 8 feet and the said road is a branch road running east to west in S. No. 1502/1.
25. The learned Advocate Commissioner has also noted about the constructing activity being done by the fifth respondent in S. No. 1502/1.
26. Though the fifth respondent has taken a stand that the approved lay out has not been utilised for the purpose for which it has been given and that they have already applied for reclassification of the lands in question into the general industrial zone and the formalities have also been completed and the fact remains that as on date, it has not been reclassified as general industrial zone.
27. In view of the factual dispute with regard to the alleged encroachment in the report of the Tahsildar, Ponneri and the report of the learned Advocate Commissioner, this Court in exercise of the jurisdiction under Article 226 of the Constitution of India, cannot adjudicate the said issue. Section 131 of the Tamil Nadu Panchayats Act, 1994, prohibits the obstructions in or over public roads an the said provision is extracted as below:
"131.Prohibition against obstructions in or over public roads, etc.-(1) No person shall, except as permitted by Rules made under this Act and except in accordance with the conditions imposed by any licence made requisite by such Rules-
a) build any wall or erect any fence or other obstruction or projection or make any encroachment whatsoever, whether permanent or temporary,[in or over any public road or any property vested in or belonging to or regulated or owned by, a Village Panchayat or Panchayat Union Council];
b) make any hole or deposit any matter [in or upon any public road or any property vested in belonging to or regulated or owned by, a Village Panchayat or Panchayat Union Council];
c) work a quarry in or remove stone, earth or other material from any place within twenty metres of a public road or of other immovable property vesting in or belonging to a Village Panchayat or Panchayat Union Council, provided that nothing in this clause shall be deemed to apply to any work which, in the opinion of the Inspector, is done in connection with a bona fide agricultural operation;
d)erect any building over any drain or any part thereof;
e) plant any tree on any public road or other property vesting in or belonging to a Village Panchayat or a Panchayat Union Council; or
f) fell, remove, destroy, lop or strip bark, leaves, or fruits from, or otherwise damage, any tree which is growing on any such public road or other property or on any poramboke land, the use of which is regulated by a Village Panchayat u/s 134 or Section 135 and the right to which has not been established by such person as vesting in or belonging to him.
2) It shall be me duty of the Village Administrative Officer of every revenue village to report on encroachments on properties vested in Village Panchayats or Panchayat Union Councils to the Executive Authority or the Commissioner concerned and to the officer of the Revenue Department, and [it shall be the duty of the Executive Authority or the Commissioner concerned either suo motu or on obtaining a report from the Village Administrative Officer in this regard to institute proceedings under this Act] and secure the removal of the encroachments within such time as may be specified by the Government by general or special order. If the removal of the encroachments has not been secured within the period specified in such order, the officers of the Revenue Department shall institute proceedings under the Tamil Nadu Land Encroachment Act, 1905(Tamil Nadu Act in of 1905) and secure such removal.
28. As per the above said provisions, it shall be the duty of the Village Administrative Officer of every Revenue village to report on encroachments on properties vested in the Village Panchayats or Panchayat Union Councils to the Executive Authority, the Commissioner concerned or to the Officer of the Revenue Department. It is the duty of the Executive authority or the Commissioner concerned either suo motu or obtaining report from the Village Administrative Officer in this regard to institute the proceedings for removal of encroachments under the Tamil Nadu Panchayats Act, 1994. The said removal of encroachment shall be within such time as may be specified by the Government by general or special order.
29. If the removal of encroachment has not been done within the period specified in the general or special order, the Officers of the Revenue Department shall institute the proceedings under the Tamil Nadu Land Encroachment Act, 1905 for removal of such encroachment.
30. As already indicated in the earlier paragraph that the report of the Tahsildar, Ponneri and the report of the learned Advocate Commissioner would reveal that the actual area of alleged encroachment by the respondents 4 and 5 is under dispute. Therefore, it is open to the respondents 1 to 3 to adjudicate the said issue and they may take appropriate action against the respondents 4 and 5 after following the procedure contemplated u/s 131 of Tamil Nadu Panchayats Act, 1994. The said exercise is to be done after hearing the writ petitioner and affording opportunities to the respondents 4 and 5. The Writ Petition is disposed of on the above terms. The observations made by this Court are only for the purpose of the disposal of this writ petition and no expression of opinion has been made touching upon the merits of the claim of the petitioner and the respondents 4 and 5. Consequently, connected Miscellaneous Petition is closed. No costs.
