Research › Search › Judgment

Madras High Court · body

2000 DIGILAW 641 (MAD)

Sekhar & Others v. D. Malligarjuna Rao & Others

2000-07-05

K.RAVIRAJA PANDIAN, N.K.JAIN

body2000
Judgment : The Judgment of the Court was delivered by N.K.Jain, Actg. C.J.: 1. This writ appeal is filed against the order of learned single Judge in W.P.No.17321 of 1989 dated 4. 2000. 2. One D.Malligarjuna Rao, writ petitioner-first respondent, a member of “Baracah Road Residents Welfare Association” filed the writ petition alleging that the slums on the eastern side of Baracah Road at Purasawalkam had reduced the width of the road in his area. It is stated that on earlier occasion Madras Secretariat Co-operative Building Society filed a writ petition in W.P.No.12243 of 1984 for removal of encroachment on the Baracah Road and by an order of this Court dated 19. 1994 the Commissioner of Corporation, the Managing Director of Tamil Nadu Slum Clearance Board and Chennai Metropolitan Development Authority were directed to remove the same. Inspite of repeated representations and provision of alternative sites, five huts remain undisturbed. It is submitted because of the act of the slum dwellers and the adjoining huts therein, the writ petitioner is not able to have free access to present their property. It is stated that a planning permission was not for bequeathing open space reservation area measuring 1,274 square feet to the Corporation of Chennai for public utility. The writ petitioner further alleged that entry to the petitioners property is not possible in view of the alleged encroachment. In such circumstances, he prayed for a direction to direct the respondents to accept the open space reservation area and earmarked in the petitioners property and further to direct the respondents to remove the encroachment as stated above. 3. The learned single Judge, on hearing the learned counsel on both sides and on consideration, held that the Corporation is bound to maintain roads and water works properly and efficiently, and that it is an admitted fact that the Corporation cannot accept the open space reservation area for fencing without removing the encroaching slums and considering such circumstances directed the Commissioner of Police, Chennai to take steps to remove the encroachments on the eastern side of the petitioners property facing the Baracah Road within four weeks and also directed before the respondent/Tamil Nadu Slum Clearance Board to assure that they evicted slum dwellers are rehabilitated in Sathiavanimuthu Nagar. Learned single Judge also directed the respondents 1 to 3 to process the petitioners application for planning permission on and after removal of the encroachments. Learned single Judge also directed the respondents 1 to 3 to process the petitioners application for planning permission on and after removal of the encroachments. Aggrieved, the appellants are before us. 4. Learned counsel for the appellants Mr.V.Raghavachari submits that leave was granted on 25. 2000. Learned counsel further submits that on an earlier occasion, the first respondent filed a writ petition in W.P.No.12243 of 1984 and it was apparent from the counter filed by the second respondent earlier, the encroachers were removed and provided with alternative sites. He submitted that no direction could be issued on the basis of that writ petition, that too without hearing the appellant. It is also submitted that the petitioner is not entitled to get the open space reservation on that basis. He also argued that no cause of action arises in favour of the petitioners being neighbours, against the encroachers of the road margin, if any, and without impleading the affected party as party respondent, the petitioner is not entitled to the relief sought for. He relied on the decisions of the Supreme Court in Government of Andhra Pradesh v. Thummala Krishna Rao and another, A.I.R. 1982 S.C. 1081, Annamalai Club 5. Mr.Haza Nasirudeen, learned counsel for the fifth respondent, Tamil Nadu Slum Clearance Board, submits that in the earlier writ petition as the disputed area was declared as slum area and in obedience of the directions of this Court in the earlier writ petition, 75 alternative huts as identified, have been provided. It is submitted that the appellants who are trespassers, cannot take advantage of the observation made in that case for rehabilitation, and the observation cannot be made available to them. The disputed land/area is not a slum area and the Slum Clearance Board cannot act outside the ambit of its power as contemplated under the Act as the appellants-alleged encroachers, do not come within the purview of the provisions of the Act. Therefore, the observation of the learned single Judge to provide alternative sites to the encroachers is not sustainable in the eye of law in the facts of this case and the decisions cited are not helpful to the appellants. .6. Mr.R.Balakrishnan, learned counsel appearing for the Corporation of Chennai, submits that as per the directions made in the earlier writ petition, some of the encroachers were removed and they have been provided with alternative sites. .6. Mr.R.Balakrishnan, learned counsel appearing for the Corporation of Chennai, submits that as per the directions made in the earlier writ petition, some of the encroachers were removed and they have been provided with alternative sites. But as the appellants, who are encroachers, short ended the width of the road, have no right for alternative sites, and in view of the direction to rehabilitate the slum dwellers, the Corporation could not evict them. Therefore, the direction of the court may be set aside to this extent. Moreover, the counsel submits that the appellants cannot claim any right contending that they are in possession for a long period, and as they have encroached a public road, mere possession creates no right for issuance of a notice. He also submitted that the cases cited are not applicable to the facts of the case on hand. 7. Mr.R.Gandhi, learned senior counsel appearing on behalf of the first respondent/writ petitioner submits that though some of the encroachers were removed, yet the appellants, like others, are in possession of a public road and due to their encroachment, the width of the road is shortended and the writ petitioner is not able to gain access to his premises upon which he is having a right. Learned counsel submits that some of the occupants of the huts are employees of the Corporation and they have encroached the property in question. He further submits that the first respondent is legally entitled to pass and repass from any portion of his property. He also submitted that in view of the direction that the Tamil Nadu Slum Clearance Board is to provide alternative sites, the Corporation is facing difficulty to comply with the order of this Court to remove the encroachers from the public road. In so far as the argument of the appellants that the writ petitioner is not entitled to get open space reservation is concerned, Mr.R.Gandhi submits that for constructing 79 flats in three blocks open space reservation is required in front of the proposed flats facing the Baracah Road and wanted to bequeath the said property to the Corporation for public utility under the registered gift deed. He further submits that as a matter of fact, the same is necessary and has been given. But due to the encroachment in open space reservation area, the writ petitioner is unable to fence the area. He further submits that as a matter of fact, the same is necessary and has been given. But due to the encroachment in open space reservation area, the writ petitioner is unable to fence the area. In any case, the appellants cannot challenge the finding of the learned single Judge in this respect. So far as the legal position as enunciated in the decisions cited, the learned counsel has not disputed the same. But, he submits that in the facts of the given case, those decisions are not helpful to the appellants. As regards the decision in Government of Andhra Pradesh v. Thummala Krishna Rao and another A.I.R. 1982 S.C. 1081 Mr.Gandhi submits that, in that case the persons were in a unauthorised occupation of the Government land and it was held that the Government has power to evict summarily. It was also observed that it cannot be restored into a case where conflicting questions of title arose for decision, whereas in the present case, no dispute regarding title arises, and the appellants have no legal right and they cannot take advantage of the case. As regards Annamalai Club v. Government of Tamil Nadu and others (1997)3 S.C.C. 169 , the learned counsel submitted that in that case on an earlier occasion the Government granted licence in respect of a Government land to the applicant and thereafter, he was evicted, without giving an opportunity of hearing and without following the procedures established. Under those circumstances. Their Lordships held that the law makes a distinction between persons in juridical possession and rank trespassers, and under the circumstances learned counsel submits that the appellants cannot take advantage of that case. Mr.R.Gandhi further summits that the two decisions in Public Interest Litigations viz., pertaining to Hawkers, Squatters Etc. in Public Streets in N.D.M.C. Area Sodan Singh v. N.D.M.C. Public Interest Litigations viz., pertaining to Hawkers, Squatters Etc. in Public Streets in N.D.M.C. Area Sodan Singh v. N.D.M.C. Public Interest Litigations viz., pertaining to Hawkers, Squatters Etc. in Public Streets in N.D.M.C. Area Sodan Singh v. N.D.M.C. (1998)1 Scale 449 and Sodan Singh wherein the court issued consequential direction by appointing Chaturvedi Committee and imposing reasonable restrictions, has nothing to do with the facts of the present case, as they are pertaining to a Scheme. 8. in Public Streets in N.D.M.C. Area Sodan Singh v. N.D.M.C. (1998)1 Scale 449 and Sodan Singh wherein the court issued consequential direction by appointing Chaturvedi Committee and imposing reasonable restrictions, has nothing to do with the facts of the present case, as they are pertaining to a Scheme. 8. However, Mr.R.Gandhi submits that petitioner has no objection, if any scheme is framed by the Corporation of Chennai, which depends upon the availability of the place and its feasibility as per the facts of that case, and the decision of the Government. But the public road or the street vests with the State and the members of the public who are the beneficiaries are entitled to use them as road. But persons like appellants who have encroached the public way, and thus shortened the road without there being any legal right or any licence at any point of time, cannot ask for any scheme and under the circumstances, the direction issued by the learned single Judge to provide alternative accommodation is not sustainable and liable to be set aside. 9. Wehave heard the learned counsel for their parties and perused the materials on record. There is no dispute so far as the legal position is concerned that the affected party should be afforded an opportunity of being heard before taking any decision against them. The only question before us is, as to whether these appellants can challenge the order of the learned single Judge on the ground that they are in possession of the property for the last 40 years and they have not been heard. The learned counsel for the appellants has not been able to show that the appellants have any legal right except that they are in possession of the property for some years, that too, without disclosing the exact date of occupation and its continuation. In our considered opinion, mere possession on the public land will not give any right to the appellants to get any indulgence from this Court, when admittedly, the disputed land is a public land. So far as the other point that whether the writ petitioner has any rights over the property is concerned, the same cannot be challenged at this stage by the appellants for want of any legal right, as discussed above. That apart, this being a question of fact, it cannot be gone into at this stage. So far as the other point that whether the writ petitioner has any rights over the property is concerned, the same cannot be challenged at this stage by the appellants for want of any legal right, as discussed above. That apart, this being a question of fact, it cannot be gone into at this stage. So far as the other argument of Mr.V.Raghavachari that till the alternative accommodation is provided to the appellants they should not be evicted is concerned, the same cannot be accepted on the alleged facts of the case as discussed above. So far as the argument of the learned counsel for the appellants that the Slum Clearance Board is not providing any scheme is concerned, in view of the submissions made by the learned counsel for the Slum Clearance Board that the disputed area has not been declared as a slum area, not public road can be declared as such, and therefore, no Scheme can be prepared, and also considering the fact that nothing has been placed on record to show that the disputed area has been declared as a slum area, this contention cannot be accepted. Therefore, the direction to the fifth respondent/Tamil Nadu Slum Clearance Board to assure that the evicted persons are rehabilitated cannot be taken in this way viz., till they are provided alternative sites, they should not be evicted. We are of the clear view that this direction will not debar the Corporation to take necessary action as per the directions of the court and in accordance with law. So far as, the formation of a scheme is concerned, as stated, all these things depend upon the fact that the area occupied by the persons should be declared as slum area as per Sec.3(1) of the Act and upon the availability of place identified by the Corporation, and other factors including feasibility. As stated, in the present case, appellants are neither licensees nor have they any legal right to occupy the place which is a public road. Therefore, the direction issued by the learned single Judge is not sustainable to this extent and is liable to be set aside in the facts of the given case. 10. As stated, in the present case, appellants are neither licensees nor have they any legal right to occupy the place which is a public road. Therefore, the direction issued by the learned single Judge is not sustainable to this extent and is liable to be set aside in the facts of the given case. 10. On overall consideration, we are of the firm view that the wrong doers cannot seek indulgence, nor this Court will issue direction to perpetuate the illegality in exercising the power under Art.226 of the Constitution. In view of what we have discussed above, the direction issued to provide alternative site will not come in the way of the corporation in removing the encroachments and the corporation is free to remove them. We find no error or illegality in the order of the learned single Judge, to this extent. With the above observations the writ appeal is dismissed. No costs. Consequently, C.M.P.Nos.7895, 7896 and 7954 of 2000 are also dismissed. However, the Government is also free to consider the formation of any scheme to rehabilitate the persons like appellants, in accordance with law.