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Judgment
S.J. Mukhopadhaya, J.—The writ petition was preferred by the petitioner against the order passed by the District Revenue Officer, Madurai, dated 14.02.2008, in Roc No. 23715/2003 Y2. Apart from the ground taken on facts, one of the plea taken by filing an additional affidavit is that the proceeding for eviction under the Tamil Nadu Land Encroachment Act, 1905 (in short "the Act") is without jurisdiction.
A petition seeking for an order of interim injunction restraining the respondents from taking any action on the basis of the impugned order was filed in M.P.(MD) No. 1 of 2008 and an interim order of injunction having been passed on 10.03.2008, other petition M.P.(MD) No. 3 of 2008 has been filed by the 6th respondent Hotel Tamil Nadu (petitioner in the vacate stay petition) for vacating the interim order of injunction.
When the case was taken, learned Counsel appearing on behalf of the writ petitioner submitted to take up the case on merit. For the said reason, we have heard the parties in detail on merit.
It appears that a land measuring an extent of 11.63 acres in T.S. No. 819/4, 8 and 9 of North Madurai Village, Madurai South Taluk, classified as European Quarters in the revenue records, was placed at the disposal of Madura (European) Club for construction of a club building and for recreation ground pursuant to G.O.Ms. No. 2730, Revenue, Dated 5th September, 1909. Later on, the Club was shifted inside the Madura Mill compound and therefore the land was assumed by the State and an extent of 0.85 acres in the eastern side was alienated in favour of District Sports Council for Stadium free of land value and the remaining extent of 10.78 acres was resumed by G.O.Ms. No. 1358, Revenue Department, dated 02.07.1977. Out of the same, 3.15 acres with building thereon was granted in favour of Madurai Institute of Social Work (now known as Capt. DVR Foundation for HRD - writ petitioner) for a sum of Rs. 2.36 lakhs. Subsequently, a request was made on behalf of the writ petitioner for more land, which was rejected.
From the record, it further appears that apart from 3.15 acres of land granted in favour of the petitioner for a sum of Rs.2.36 lakhs, the petitioner encroached upon 20 cents of land on the northern side beyond the extent already assigned, measuring 10 feet on the east, 60 feet on the west, 155 feet on the north and 148 feet on the south and put up a pucca building thereon. This apart, the petitioner further encroached 34 cents of land by way of forming a road without permission, in addition to 3.15 acres of land already granted in its favour. The petitioner requested to regularise 20 cents of land encroached by it and 34 cents of land whereon it has formed a road, without permission. The matter was considered by the State Government, which, by its decision contained in G.O.Ms. No. 750, dated 25th March, 1980, issued from Revenue Department, passed the following order.
Order:
In the Government Order cited, the Government ordered the resumption of the entire extent of 11.63 acres of land along with the building there on in T.S.No.819/4,8 and 9 of North Madurai Village, Madurai South Taluk, from Madurai Club, the original grantee, and directed the disposal of the land as follows:
i. Alienation to the Madurai Institute of Social Work on Collection of Rs. 2,36,000/- towards cost of buildings, free and land value = 3.15 acres
ii. Alienation in favour of the District Sports Council for stadium free of land value = 0.85 acres
iii. To be kept reserved for future use of Government = 7.63 acres -------------------------------------------------------------- Total = 11.63 acres --------------------------------------------------------------
Accordingly, the lands in items (i) and (ii) above were handed over to the respective institutions and an extent of 7.63 acres kept reserved for future use of Government had been entered in the prohibitory order book.
The Madurai Institute of Social Work has requested the alienation of the entire extent of 7.63 acres of the land (kept reserved for future Government use) in its favour to expand its activities so that, in course of time, the Institute and the other wings under it may from one compact homogenous body in one locality and not scattered about for want of accommodation in one place.
The Collector of Madurai has started that the request of the Madurai Institute need not be complied with on the ground that the Institute has already been given an extent of 3.15 acres of land in this important and valuable locality and that therefore the Institute may have to go in for acquisition of lands in the outskirts of the city, if it wants to push through its expansion programmes.
The Collector has reported that the Institute of Social Work, Madurai have encroached upon 20 cents by way of construction of shed and 34 cents by way of formation of roads without permission, in addition to 3.15 acres of the land already alienated to them, that they did not vacate this encroached portions should also be alienated to them, and that the has how over, accorded permission to the women''s voluntary service, organization, to enter upon the adjacent block, within this area so as to prevent further, encroachment by the Institute of Social Work, which was trying to occupy this piece of land also.
The Board of Revenue has recommended that the extent of 7.63 acres of land kept reserved for future Government use may be disposed of as follows:
A.C.
District Industries Centre, Ramanathapuram 0.90 (construction work in programs)
All India Radio 3.33
Tourist Development Corporation 1.81
Women''s Voluntary Service Organisation 1.05
Area Encroached by Institute of Social Work to be regularized or to be evicted with reference to the order of Government 0.54 ----- Total 7.63 -----
The Government have examined, the request of the Madurai Institute of Social Work; with reference to the recommend on of the Collector of Madurai and the Board of Revenue (Land Revenue). They observe that the Institute has been given an extent of 3.15 acres in a very valuable area and that there is no need for granting any further extent of land to the Institute. There are requests form Government Departments both Central and State and private organization''s. The Government consider that if at all any concession is to be shown to the Institution, it may be by of regularization of the encroachment of 20 cents on northern side where pucca building has been put in exchange of a triangular bit of land already given to be Institution.
The Government accordingly direct that the extent encroachment of 20 cents by the Institute on the Northern side beyond the extent already assigned, measuring 50 feet on the cost, 60 feet on the west, 155 feet on the north and 148 feet on the south where pucca buildings has been put up, be regularised in exchange for the triangular bit on the north western side with dimensions 70 feet on the west and 257 feet on the north and about 263.5 on the south side as marked X in the sketch, which was already granted to the Institute and that their occupation in an extent of Alagarkoil Road be evicted.
The Director of Madurai Institute of Social Work is requested to approach the Collector of Madurai for orders on his request for grant of additional extent of land in T.S. No. 819/4, 8 and 9 of Madurai District.
The stay granted in Government letter No. 111410/L2/77 dated 27.04.1979 and 09.08.1979 is hereby vacated.
The Collector of Madurai is requested to send proposals for placing the reserved lands at the disposal of District Industries Centre, Tourist Development Corporation and Women''s Voluntary Service Organization through the Board of Revenue (Land Revenue) at an early date, and also take further action with reference to orders in para 7 above.
From the record, it further appears that apart from the land which was allotted in favour of the petitioner for a sum of Rs. 2.36 lakhs and 0.85 acres of land alienated in favour of the District Sports Council for Stadium (free of cost), out of the remaining 7.63 acres, the Government of Tamil Nadu was pleased to alienate the following lands in favour of Tamil Nadu Tourism Development Corporation, District Industries Centre, European Quarters and Women Voluntary Service Society vide G.O.Ms. No. 669, dated 11th April, 1984, issued from Revenue Department.
--------------------------------------------------------------------------- Sl. No. T.S. No. Estent A. Sq.ft. Favour of --------------------------------------------------------------------------- 1. 819/4, 8, 9A 4. 38506 Tamilnadu Tourism Development Corporation. --------------------------------------------------------------------------- 2. 819/4, 8, 9F1 0. 19910 District Industries Centre --------------------------------------------------------------------------- 3. 819/4, 8, 9F2 0. 27840 European Quarters --------------------------------------------------------------------------- 4. 819/4, 8, 9E 0. 32702 Women Voluntary Service Society ---------------------------------------------------------------------------
The petitioner was not happy with the allotment of certain land in favour of Women Voluntary Service Society and it challenged G.O.Ms. No. 669, Revenue Department, dated 11th April, 1984 in W.P. No. 633 of 1984. By order dated 2nd December, 1991, this Court dismissed the case by holding that the petitioner was not entitled for the relief.
As per G.O.Ms. No. 750, dated 25th March, 1980, 20 cents of land encroached by the petitioner were to be regularised. But, in lieu of that, the petitioner were to return, in exchange, a triangular bit on the north western side with dimensions 70 feet on the west and 257 feet on the north and about 263.5 feet on the south side, marked as ''X'' in the sketch attached with G.O.Ms. No. 750, dated 25th March, 1980. However, inspite of such encroachment and order dated 25th March, 1980, for more than 20 years the petitioner neither removed the encroachment nor returned the triangular bit aforesaid and, therefore, action was initiated against it under the Tamil Nadu Land Encroachment Act, 1905. Writ Petition (MD) No. 8831/2005 was preferred by the petitioner against the order u/s 6 of the Act. The said case was disposed of by this Court by order dated 22nd December, 2006, wherein it was ordered that the order dated 5th September, 2005 may be treated as notice u/s 7 of the Act and the respondents were directed to consider the representation preferred by the petitioner and in the event the respondents were not satisfied with the objection/explanation, they are allowed to proceed further u/s 6 of the Act. Subsequently, the matter having decided against the petitioner, an appeal was preferred before the Revenue Divisional Officer, Madurai. The decision in the appeal also having gone against the petitioner, a revision was filed and the same was disposed of by the impugned order dated 14th February, 2008, by which, the District Revenue Officer, Madurai, has refused to interfere with the orders of the appellate authority, namely the Revenue Divisional Officer, Madurai, whereby it has been ordered to evict the petitioner from the encroached land.
Learned Counsel appearing on behalf of the petitioner, while referred to one or other order to show the petitioner''s right over the land, mainly raised the question of jurisdiction of the respondents in proceeding under the Tamil Nad Land Encroachment Act, 1905. Learned Special Government Pleader appearing on behalf of the State, while highlighted the facts, referred to the provisions of the Act to show that the authorities have jurisdiction.
We have heard the learned Counsel for the parties and noticed the rival contentions.
The Counsel for the petitioner has challenged the jurisdiction of the respondents on the ground that the case of the 6th respondent, namely Hotel Tamil Nadu (Tamil Nadu Tourism Development Corporation) is covered by Clause (e) of Section 2 of the Tamil Nadu Land Encroachment Act, 1905 and thereby the proceeding under the Act is not applicable. On the other hand, according to the learned Special Government Pleader for the State, right of property in public roads, etc., including all lands wherever situated, is that of the State and the case of the 6th respondent Corporation is not covered under Clause (e) of Section (2) of the Act.
From the record, it will be evident that 3.15 acres of land were allotted in favour of the petitioner on payment of Rs. 2.36 lakhs. On the other hand, what appears from the record is that lands in favour of the District Sports Council for construction of a Stadium and the Tamil Nadu Tourism Development Corporation were alienated free of cost. The parties have not produced copy of G.O.Ms. No. 669, Revenue Department, dated 11.04.1984. But, from the record, it appears that the land measuring 4.38506 A.sq.ft. were alienated in favour of Tamilnadu Tourism Development Corporation in T.S. No. 819/4,8 9A without any cost. Thus, there is nothing on record to suggest that Tamil nadu Tourism Development Corporation is holding the land on the grant of the Government, otherwise by way of licence and, therefore, it cannot be argued that the State Government has no right over the property in question for the purpose of exercising jurisdiction under the Tamil Nadu Land Encroachment Act, 1905.
Apart from the aforesaid fact, it is evident from the order dated 22nd December, 2006 passed by this Court in the case in W.P.(MD) No. 8831 of 2005, which was preferred by the petitioner, that while the matter was remitted and it was ordered that the earlier order dated 5th September, 2005 may be treated as notice u/s 7 of the Act, the Court further observed that in the event the respondents were not satisfied with the objection/explanation of the petitioner, they are entitled to proceed further u/s 6 of the Act. Such observation having been made and this Court having allowed the respondents to proceed u/s 6 of the Act, the petitioner. without challenging the earlier order passed in his W.P. No. 8831/2005. cannot raise the question of jurisdiction of respondents, who have issued the order pursuant to the order passed by this Court.
In the facts and circumstances, we find no ground is made out to interfere with the order dated 14th February, 2008 passed by the 3rd respondent.
At this stage, it may be mentioned that the learned Counsel for the petitioner submitted that the petitioner is ready for a measurement to find out whether any encroachment has been made by the petitioner or not. Even according to him, as per G.O.Ms. No. 750, Revenue Department, dated 25th March, 1980, 20 cents of land encroached by the petitioner should be treated to have been regularised by the State Government. Prima facie, such submission can be accepted. But, the petitioner cannot derive anything from the first part of G.O.Ms. No. 750, dated 25th March, 1980, without compliance with the rest part of the order passed in the said Government Order, whereby it was ordered to regularise 20 cents of land in exchange for the triangular bit on the north western side with dimensions 70 feet on the west and 257 feet on the north and about 263.5 feet on the south marked as ''X'' in the sketch attached to the said Government Order dated 25th March, 1980.
So far as the 34 cents of land whereon the petitioner has formed a road without permission is concerned, we are of the opinion that the parties should follow the direction of the State Government as given vide G.O.Ms. No. 750 dated 25th March, 1980. If any decree has been passed by a court of competent jurisdiction with regard to 34 cents of land, as informed by the learned Counsel for the petitioner, and if any petition to set aside such exparte decree has been filed by the respondents, as informed by the learned Counsel for the State, we are of the view that the respondents should not proceed with that 34 cents of land before any specific decision is given by the court in the suit wherein ex-parte decree is under challenge.
In the circumstances, we give liberty to the petitioner to request to the respondents to act in terms with G.O.Ms. No. 750, dated 25th March, 1980 by way of exchange in lieu of 20 cents of land encroached for which order of regularisation has been issued. If such an offer is given by the petitioner within 15 days from the date of receipt of a copy of this order, the respondents will act in terms of G.O.Ms. No. 750, dated 25th March, 1980. If the petitioner fails to give any such offer or comes with any other conditional offer, in such case, the respondents will proceed in terms with the impugned order dated 14th February, 2008 and in accordance with law. In case such offer is given, the respondents will take action in terms of G.O.Ms. No. 750 dated 25th March, 1980 by taking appropriate measurement through a Government Surveyor in the presence of the petitioner or any agent nominated by the petitioner and then proceed in the matter in accordance with law.
The writ petition stands disposed of with the aforesaid observation but there shall be no order as to costs. Connected M.P.(MD) Nos. 1 and 3 are disposed of.