Francis vs Executive Engineer And Ors

We have heard learned counsel appearing for the applicant as well as respondents.

The prayer in the application is to direct the 3rd respondent, The Commissioner, Kuzhithurai Municipality to restore the Attakulam water tank to its original position.

It is not in dispute that in respect of the same prayer a Writ Petition came to be filed before the Madurai Bench of the Madras High Court in W.P.(MD) No. 5008 of 2006 which was disposed of on 17.10.2006. The prayer in that Writ Petition was for a direction against the official respondents to take appropriate steps to remove the illegal encroachment made in Attakulam Tank in Town Survey No.D5/256, Nalloor Village, Kuzhithurai Municipal Limit, Vilevancode, Kanyakumari District.

While disposing the Writ Petition, the Division Bench has held that the 2nd respondent therein viz., The Commissioner, Kuzhithurai Municipality should ensure that the property is kept in hygienic and healthy condition and no encroachments are allowed on the disputed land. It was also made clear that if there is any encroachment, the Municipality should take steps for removing such encroachment by giving opportunity to the persons likely to be affected.

Complaining that the order of the High Court has not been implemented, the applicant herein, who is a Writ Petitioner, has again moved the High Court of Madras in Contempt Application No.1377 of 2015 and Hon'ble Division Bench in the order dated 21.04.2017 has referred to the proceedings of the District Collector dated 12.09.2011 wherein he has approved formation of road which the applicant considers as an encroachment. The Division Bench has also held that road is also required for general public and therefore no fault can be attributed to the District Administration in forming the road.

The order reads as follows:

"Learned counsel for the respondents municipality submitted that it may be true that sand was dumped in the water body. However, the District Collector, vide proceedings dated 12.09.2011 approved for formation of road and it has been laid by the District Administration."

In view of the order of the Hon'ble Division Bench of the Madras High Court, we cannot grant relief claimed by the applicant in this application.

It is for the applicant to work out his remedy in the manner known to law, particularly in respect of the order of the Division Bench in Contempt Application No.1377 of 2015 enumerated above.

It is always open to the applicant to work out his remedy in the manner known to law and if required, approach this Tribunal, based on such decision, which may be taken by the appropriate forum.

With the above observations, the application stands closed. There shall be no order as to cost.