M.G.R. Nagar, Kudisai Vazhuvor Sangham vs State of Tamilnadu and The Tamilnadu Slum Clearance Board

S. Jagadeesan, J.—The Petitioner known as M.G.R. Nagar Kudisai Vazhuvor Sangam, has filed this petition, stating that the members of

the Petitioner-Association are living at Sathangadu Erikkarai, Madras-68 for the past 18 years. There were about 200 and off huts put up by the

members of the Petitioner-Association in the land belonging to the Government, being poramboke land. Now the writ petition has been filed for a

mandamus forbearing the Respondents from evicting them on the ground that the Respondents removed about 15 huts in the year 1985 for

providing a road to the nearby Manali Refinery and another alternative accommodation was provided. When the members of the Petitioner-

Association are in occupation, the Respondents are expected to follow the procedure prescribed under the Land Encroachment Act and then

proceed with the eviction. Since forcible eviction was sought for, the Petitioner-Association filed W.P. No. 11575 of 1985 for the issuance, of a

writ of mandamus, forbearing the Respondents from evicting the members of the Petitioner-Association. By order dated 7.7.1987, the Writ

Petition was disposed of on the ground that the apprehension of the members of the Petitioner-Association is without any basis since the

Respondents have stated in the counter that notice as contemplated u/s 7 of the Land Encroachment Act will be served before ever eviction is

sought for. When the Companies occupying the lands nearby disturbed the possession of members of the Petitioner-Association proceedings were

initiated before the Executive Magistrate, Saidapet, u/s 145 Code of Criminal Procedure when the 2nd Respondent served notice u/s 6 of the

Land Encroachment Act on 18.1.1990, the present Writ Petition has been filed on the ground that the present action purporting to be under the

Land Encroachment Act, is motivated and mala fide.

The 2nd Respondent has filed a counter affidavit, denying the various allegation made by the Petitioner. It is stated therein that the notice issued

u/s 7 of the Land Encroachment Act was refused and the final notice u/s 6 of the Land Encroachment Act was served. After the formation of the

Manali Refinary in Manali Village, several chemical and fertiliser units have come up besides other ancillary units in the adjacent villages, viz.,

Sathangadu and Mathur S. No. 33/5 of Sathangadu is classified as Battai Poramboke and the said survey number along with another area of

16.77 acres was allotted to Kothari Sugars and Chemicals Limited for establishing a petro-chemical factory. The company has completed the

construction of the factory and started to function. Since the company is using highly inflammable petrochemical, which is dangerous to the

occupants of the houses nearby, the encroachers were asked to vacate. In fact, only about 21 encroachers, who were occupying the area which is

very close to the industry, were asked to vacate and steps were taken to remove the encroachment and not in respect of other encroachers.

Whenever notice is served under the Land Encroachment Act, the encroachers approach this Court and obtain interim order and totally thwart the

attempt of the authorities to evict them. When the members of the Petitioner-Association are admittedly encroachers, they have no right to continue

their possession it is open to the authorities to evict them.

Considering the averments made in the affidavit, there is no dispute that the members of the Petitioner-Association are in occupation of the

Poramboke land. In the nearby places, several industries have come up. Now the lands are required by the Authorities either for the formation of

road or for the development of the factory, which are public needs. When a land is needed for the Public Purpose, always it is open to the

Authorities to evict the encroachers, who are in unauthorised occupation of the land without any right whatsoever. From the affidavit, it is clear that

the Petitioner-Association has admitted that whenever notice is issued under the Land Encroachment Act, they approach this Court and stall the

eviction proceedings. In 1985 they have done so. In 1990 for the second time, they have filed this writ petition. By filing this writ petition now,

successfully the Petitioner-Association has thwarted the eviction proceedings for the past more than 8 years and happily squatting on the Public

property.

The Jurisdiction under Article 226 of the Constitution of India, can be invoked only to protect the existing right and not to create a new right in

favour of a party as held by a Division Bench of this Court in Tiruchirapalli Palporul Virkum Thozhilalar Sangam Vs. The Commissioner,

Corporation of Tiruchirapalli, Tiruchirapalli, In the said decision it was held as follows:

The learned Senior Counsel submitted that on humanitarian grounds, the impugned order is liable to be interfered with. In this jurisdiction, Court

has to protect the right in the event of interference, but should not create a. right to a party. There is no material to reflect their right to trade in their

respective places.

Admittedly when the members of the Petitioner-Association are encroachers, they have no right to continue to be in possession of the

Government Property and as such there is no right to be protected. By filing writ petitions and obtaining interim orders, a right has been claimed by

the members of the Petitioner-Association for their continuous occupation of the encroached property, which cannot be permitted.

6 Since the members of the Petitioner-Association have no right to be protected, the writ petition is not maintainable and on this short ground, the

writ petition is dismissed with costs. Counsel Fee: Rs. 2,500/-