Joseph Lourdes Lawrence and Dominique Marie Regina vs Union of India and Others

K. Ravichandrabaabu, J.—The present writ petition is filed challenging the order passed by the fourth respondent dated 27.01.2004 and

consequently, seeking for a direction to the respondents 2 to 5 to register a case under Criminal Procedure Code and to initiate speedy remedial

action by evicting the trespassers as per G.O.Ms. No. 38, Home Department dated 23.11.1998 in respect of the subject matter of land. The

grievance of the petitioners is that they are the owners of the property which is the subject matter in this writ petition and the same are grabbed by

henchmen of the ruling party members taking the advantage of the absence of the petitioners at Pondicherry. The petitioners'' claim that they are

french nationals and citizens and all the members of their family are also french nationals of Indian origin. It is their case that G.O.Ms. No. 38

Home Department dated 23.11.1998 came to be passed by the first respondent Government whereby a Special Cell was constituted to evict the

trespassers from the property belonging to the french citizens. Based on the said G.O., the petitioners preferred a complaint and no action was

taken by the Special Cell for a long time. On the other hand, steps were taken to lay a road to enable the trespassers to have free access. Hence,

the petitioners preferred W.P. No. 4077 of 2000 to forbear the authorities from laying the road. The said writ petition was allowed on 11.04.2000

and this Court directed the Special Cell to consider the petitioners'' complaint and pass orders as expeditiously as possible. On 25.07.2000, the

respondents 2 to 5 informed the petitioners to seek remedy in a Civil Court. The said order was further challenged before this Court by the

petitioners in W.P. No. 7629 of 2001 wherein an order came to be passed directing the Member Secretary, Special Cell to consider and dispose

of the request of the petitioners afresh in the light of G.O.Ms. No. 38 Home Department dated 23.11.1998. Consequent upon such direction, the

present impugned order came to be passed on 27.01.2004, wherein the fourth respondent directed the petitioners to take legal course of action by

filing a civil suit to legally evict the encroachers from the site and possession. Challenging the said order, the present writ petition is filed before this

court.

The writ petition was resisted by the respondents by filing a counter affidavit.

Heard both sides.

In the counter affidavit filed on behalf of the respondents, it is stated that on enquiry conducted, it was found that the land in question stands

registered in the name of the petitioners and their family member as per the revenue records. However, there are 21 encroachers in the said land

and they have put up dwelling huts/brick-houses with tiled/cement/asbestos roofs and they stated to have been residing for more than 15 years,

without any apparent objection from any quarter. It is also stated that they have obtained electricity connections for their house and the area is

further provided with basic civic amenities like street lights, public water tap, etc.

It is the case of the respondents that they have no power to evict the encroachers under G.O.Ms. No. 38, Home Department dated

23.11.1998, whereby the Special Cell was constituted to deal only with the land grabbers. Thus, it is contended by the respondents that the

remedy available to the petitioners is only to file a civil suit against those encroachers and seek remedy before the Civil Court in accordance with

law.

Ms. M.B. Dominique, learned counsel for the petitioners submitted that the encroachment was made at the instance of the Government and

therefore, these encroachers have to be removed by the Government by exercising powers conferred on the Special Cell by G.O.Ms. No. 38

Home Department dated 23.11.1998.

The said contention was stoutly resisted by the learned counsel for the respondents. Though the learned counsel for the petitioners contends that

the encroachment was made at the instance of the Government, she could not place any materials to substantiate such contention. Whatever the

claim may be, the fact remains that the proceedings issued by the respondents dated 25.07.2000 in pursuant to the orders issued by this court in

W.P. No. 4077 of 2000 dated 11.04.2000, would disclose that the respondents have stated therein that there are 22 encroachers in the land by

putting up a dwelling house and residing there for more than 15 years without any apparent objection from any quarter. That means, the

encroachers are said to be in possession of the property even from they year 1985. The said contention raised by the respondents and its

correctness or otherwise has to be gone into only by civil court by considering the evidence let in by the respective parties.

According to the petitioners, the persons in occupation are the land grabbers. On the other hand, it is the contention of the respondents that

those persons are there in the property for more than 30 years as on date as encroachers and therefore, they cannot be termed as grabbers and

they are only encroachers against whom the petitioners have to seek remedy only by filing a civil suit in accordance with law. Even in the impugned

order dated 27.01.2004, it is admitted by the respondents that the petitioners'' land has been encroached upon by 22 people and the petitioners

have already taken legal course of action by filing a civil suit through proceedings dated 25.07.2000. It is also to be noted at this juncture that this

court while disposing of the earlier writ petition in W.P. No. 7629 of 2001 dated 23.01.2003, has only observed that without going into the

question whether the Government can exercise their power to evict those persons who have encroached upon the private property, the learned

Single Judge has only directed the respondents to dispose of the petitioners'' request in the light of the G.O.Ms. No. 38, Home Department dated

23.11.1998. Now, the respondents in pursuant to the said order of this court passed therein passed the present impugned order stating that they

have no power under the said G.O., however by giving liberty to the petitioners to approach the Civil Court when it is contended that those

persons are there in the property for more than 30 years. Therefore, in my considered view, the petitioners have to only file a Civil suit against

those encroachers and seek appropriate remedy before the Civil Court. It is also to be noted that those encroachers have not been made as

parties in this writ petition. At any event, as this Court finds that the petitioners have to approach the civil court, there is no necessity for directing

the petitioners to implead those encroachers as parties in the writ petition. Consequently, the writ petition is disposed of by giving liberty to the

petitioners to approach the Civil Court by filing appropriate Civil Suit against those encroachers and seek appropriate remedy therein. Since this

court is giving liberty to the petitioners to approach the Civil Court for seeking appropriate remedy, it is made clear that the Civil Court cannot

reject the suit to be filed by the petitioners on the ground of limitation. In all other aspects, the Civil Court shall consider the claim on merits and in

accordance with law. With these observations, the writ petition is disposed of. No costs. The connected miscellaneous petition is closed.