Research › Search › Judgment

Madras High Court · body

2019 DIGILAW 3259 (MAD)

A. Pavadaisamy v. State of Tamil Nadu Additional Chief Secretary

2019-11-26

A.P.SAHI, SUBRAMONIUM PRASAD

body2019
JUDGMENT : Subramonium Prasad, J Prayer : Appeal filed under Clause 15 of the Letter Patent against the order, dated 24/08/2018, passed in W.P.No.679 of 2018. The instant writ appeal is directed against the judgment and order dated 24.08.2018 in WP.No.679 of 2018. 2. The writ petitioner claims that he is a purchaser of the property bearing T.S.No.245/1, at door No.145, Kuthoos Gurusamy Salai, Cuddalore Mudhu Nagar, Marapalam, Cuddalore. The writ petitioner states that he purchased the property on 12.11.2003 from one Anandhan. He states that the said Anandhan has been staying in the property in question for more than 20 years prior to the sale to the writ petitioner. The writ petitioner states that after the purchase of the property, he has been issued a voter ID card and the electricity connection is in his name. He has also paying the property tax regularly for the premises where he is residing. 3. Owing to refusal by the Municipal Corporation to receive the property tax from the writ petitioner. The petitioner claimed for a pata to be issued to him. The petitioner made several representations to the respondents. The District Collector by an order dated 23.03.2014, directed the Village Administrative Officer and Revenue Inspector to investigate the documents regarding the grant of patta to the writ petitioner and submit a report to Tahsildar. By an order dated 02.12.2015, the Cuddalore Revenue Tahsildar rejected the application for grant of patta. The Tahsildar in the said letter held that though the petitioner/appellant is living in the property for more than 12 years, has an electricity connection in his name and possesses family card, voter ID card, the land is a poramboke land and therefore patta cannot be issued to the writ petitioner. 4. It appears that the writ petitioner had approached this Court by filing W.P.No.5085 of 2016 and this Court had directed the respondents to conduct an enquiry by an order dated 29.03.2016. The Tahsildar once again by an order dated 28.07.2016, rejected the application for grant of patta. The Tahsildar in the said letter observed that the place is recorded in the revenue municipality as “Sarkar Poramboke Upanaru”. The Tahsildar observed that since the area has been classified as “water way poramboke”, no patta can be issued. 5. The writ petitioner filed a second writ petition being W.P.No.1046 of 2017 to quash the order of the Tahsildar. The Tahsildar in the said letter observed that the place is recorded in the revenue municipality as “Sarkar Poramboke Upanaru”. The Tahsildar observed that since the area has been classified as “water way poramboke”, no patta can be issued. 5. The writ petitioner filed a second writ petition being W.P.No.1046 of 2017 to quash the order of the Tahsildar. This Court by an order dated 12.01.2017 directed the District Collector, Cuddalore to treat the writ petition as an appeal against the order of the Tahsildar and directed the District Collector to dispose of the same. 6. Pursuant to the order of this Court dated 12.01.2017, the District Collector on 29.07.2017, rejected the appeal. The District Collector affirmed the findings that the place where the writ petitioner resides is recorded as “Sarkar Poramboke Upanaru” and is a water way poramboke. Against the said order the writ petitioner has filed the instant writ petition. 7. The primary contention of the writ petitioner is that there are several families living in the area. He states that everybody has been given voter ID card, electricity connection and some persons have also got patta based on long years of residence in the area. The writ petitioner therefore states that there is no reason to single him out and deprive him from issuing a patta. The learned Single Judge by an order impugned herein held that the area where the writ petitioner resides is water way poramboke and therefore no patta can be granted to the writ petitioner. This court instead of dismissing the writ petition, went further and directed that everybody residing in the area which is classified as water way poramboke including the writ petitioner herein must be evicted by initiating appropriate proceedings. It is this order which has been challenged in the instant writ petition. 8. The appellant has contended that he has been residing in the property for a period over 12 years. The petitioner states that this position has been admitted by the residents. The petitioner has claimed that numerous other residents of the area have been granted patta and thus he should be entitled to the same. Additionally the writ petitioner claims that the Tahsildar and the District Collector have failed to produce the 'A' register village sketch of the property, as applied for under the RTI Act by the appellant despite them agreeing to do so. 9. Additionally the writ petitioner claims that the Tahsildar and the District Collector have failed to produce the 'A' register village sketch of the property, as applied for under the RTI Act by the appellant despite them agreeing to do so. 9. The writ petitioner appellant would also contend that the fact that he got his voter ID, family card and is paying property tax regularly would mean that his possession over the property has been legalized and he is therefore entitled to patta. The writ petitioner is appearing in person. Since the writ petitioner was unable to explain his case, Ms.C.Uma, Advocate, was appointed as Amicus Curiae. On 21.11.2019, Ms.C.Uma, Amicus Curiae states that the writ petitioner does not want her to represent him. We therefore discharged Ms.C.Uma as Amicus Curiae and heard the petition in person. 10. The writ petitioner has reiterated his contentions made in the writ appeal by stating that others in the area have got patta. He would state that he is residing in the premises for more than 14 years and his predecessor in interest has stayed in the premises for over 20 years prior to his purchase of the property. He also stated that he is paying property tax regularly and therefore he is entitled for patta. Thus the writ petitioner claims that the order of the learned Single Judge is bad in law. 11. Perused the records of the case. 12. The writ petitioner has said to have purchased the property more than 14 years back. There is no registered document to show his purchase. The records reveals that the land where the property is situated has been described as “Sarkar Poramboke Upanaru” and classified as water way poramboke. The Tahsildar and the District Collector have seen the registers before arriving at this conclusion. The writ petitioner/apellant has not shown any document to the contrary which would substantiate his contention that the area is not situated on water way poramboke. The fact that other persons have got patta does not in any way substantiate the claim of the writ petitioner that he is also entitled to patta. Long possession of the Government poramboke land does not legitimize a claim of patta. The writ petitioner cannot claim title by way of adverse possession over this land. The fact that other persons have got patta does not in any way substantiate the claim of the writ petitioner that he is also entitled to patta. Long possession of the Government poramboke land does not legitimize a claim of patta. The writ petitioner cannot claim title by way of adverse possession over this land. The fact that he has been given electricity connection, voter ID card also does not give a right to the writ petitioner to claim patta on the water way poramboke land. 13. The judgment of the learned Single Judge deciding to interfere with the order of Tahsildar rejecting the claim of the writ petitioner for grant of patta does not warrant any interference. The learned Single Judge has further directed the Authorities to remove all the encroachments by following due process of law. The respondents have filed a status report before the learned Single Judge stating that they have initiated action in removing the encroachments in Cuddalore District. 14. The Tamil Nadu Land Encroachment Act,1905, has laid down the procedure for eviction of encroachment. Section 6 of the Tamil Nadu Land Encroachment Act,1905, states that any person unauthorizedly occupying any land for which he is liable to pay assessment under section 3 [or section 3-A] may be summarily evicted by the Collector, [or subject to his control, by the Tahsildar or Deputy Tahsildar. The eviction is to be carried out by serving a notice under Section 7 and following the procedures under Section 6(2) and Section 6(3). 15. The eviction is to be carried out by serving a notice under Section 7 and following the procedures under Section 6(2) and Section 6(3). 15. Section 6(2) and Section 6(3) of the Tamil Nadu Land Encroachment Act,1905, reads as under:- "(2) Model of eviction.- An eviction under this section shall be made in the following manner, namely:- By serving a notice in the manner provided in section 7 on the person reputed to be in occupation or his agent requiring him within such time as the Collector [or the Tahsildar or Deputy Tahsildar or the authorized officer] may deem reasonable after receipt of the said notice to vacate the land, and, if such notice is not obeyed, by removing or deputing a subordinate to remove any person who may refuse to vacate the same, and if the officer removing any such person shall be resisted or obstructed by any person, the Collector [or the Tahsildar or Deputy Tahsildar or authorized officer] shall hold a summary inquiry into the facts of the case, and if satisfied that the resistance or obstruction was without any just cause and that such resistance or obstruction still continues, may issue a warrant for the arrest of the said person and on his appearance commit Him to close custody in the office of the Collector [or of any Tahsildar or Deputy Tahsildar or authorized officer] for such period not exceeding 30 days as may be necessary to prevent the continuance of such obstruction or resistance or may send him with a warrant in the form of the schedule for imprisonment in the civil jail of the district for the like period: Provided that no person so committed or imprisoned under this section shall be liable to be prosecuted under sections 183, 186 or 188 of the Indian Penal Code in respect of the same facts. [(3) Any authorized officer taking proceedings under this section shall make a report in writing containing such particulars as may be specified in rules or orders made under section 8 to the Collector, Tahsildar or Deputy Tahsildar having jurisdiction.]" 16. Against the order passed by the Tahsildar under Section 6, an appeal lies to the Collector under Section 10. Section 10-A also provides for revisionary power to the District Collector. Section 10-A (3) provides for a hearing to a person aggrieved. Against the order passed by the Tahsildar under Section 6, an appeal lies to the Collector under Section 10. Section 10-A also provides for revisionary power to the District Collector. Section 10-A (3) provides for a hearing to a person aggrieved. Section 10-A reads as under:- "10-A. Revision.- (1) Any decision or order passed under this Act may be revised either suo motu or on application- (a) by the District Collector, if such decision or order was passed by an authorized officer or a Deputy Tahsildar, Tahsildar or Collector; (b) by the Board of Revenue, if such decision or order was passed by any officer; (c) by the State Government, if such decision or order was passed by the Board of Revenue. (2) The power conferred by sub-section (1) shall not be exercised except on the ground that the officer or authority whose decision or order is sought to be revised appears to have exercised a jurisdiction not vested in him or it by law, or to have failed to exercise a jurisdiction so vested, or to have acted in the exercise of his or its jurisdiction illegally or with material irregularity. (3) No decision or order shall be passed under sub-section (1) prejudicial to any person without giving such person a reasonable opportunity of making any representation that he may desire to make and such representation, if any, shall be taken into consideration, before such decision or order is passed." 17. The writ petitioner is therefore entitled to file a Revision Petition against the order of the Tahsildar passed under Section 6 of the Tamil Nadu Land Encroachment Act,1905, and he has also entitled to a right of hearing before the Collector. If the Tahsildar has already passed an order of Revision, two weeks time is given to the writ petitioner to approach the Revisional Authority who is the District Collector and the District Collector is directed to give the writ petitioner a hearing before passing a final order. In case no order has been passed by the Tahsildar, then the petitioner would be entitled to file a petition before the Collector after two weeks of receipt of the order of the Tahsildar and the Collector will issue a notice to the petitioner and given him an opportunity of hearing before passing the final order. Writ Appeal is disposed of in the above terms. No Costs.