AI Structured Summary
Not yet generated for this judgment
Judgment
R.S. Ramanathan, J.—First defendant is the revision petitioner. The first respondent filed the suit in O.S. No. 6231 of 2010 against the
revision petitioner and respondents 2 and 3 for permanent injunction restraining respondents 2 and 3 herein from granting sewerage and water
connection to the suit property in the occupation of the revision petitioner and also filed application in I.A. No. 11947 of 2010 for temporary
injunction to the same effect and after giving notice to the petitioners as well as respondents 2 and 3 and after hearing their submissions, the learned
XIV Assistant Judge, City Civil Court, Chennai granted an order of temporary injunction and aggrieved by the same, the revision petitioner filed
appeal in C.M.A. No. 48 of 2011 before the II Additional Judge, City Civil Court, Chennai and the same was also dismissed and aggrieved by the
same, this revision is filed.
Learned Senior Counsel Mrs. Chitra Sampath appearing for the revision petitioner submitted that the members of the revision petitioner
association are in possession of the suit property for more than 60 years and they are in settled possession of the suit property and therefore, they
have got every right to get water sewerage connection to the members and even as per the judgments rendered in C.S. No. 911 of 1984 filed by
G. Mahalingam and 21 others, the members of the petitioner association were found to be in possession of the properties and in O.S.A. No. 206
of 1993, it was held that the predecessor-in-title of the first respondent was directed to evict the members of the revision petitioner association in
accordance with law, and till they were evicted, they are entitled to be in possession of the property and they are entitled to have the water and
sewerage connection and as per Article 21 of the Constitution of India, every citizen has got a right to live with all civic amenities and right to
shelter does not mean a mere right to have roof over one''s head and the State is bound to provide all civil amenities to a person in occupation of a
property and therefore, till the members of the revision petitioners are evicted in accordance with law, they are entitled to have water and sewerage
connection and without appreciating the same, the courts below granted injunction in favour of the first respondent and therefore, the order of
injunction is liable to be vacated. The learned Senior Counsel also relied upon the judgment of the Honourable Supreme Court in Chameli Singh
and others etc. Vs. State of U.P. and another, , Rani Mohanraj and Another Vs. P. Rajarathinam, and Tiruchirapalli Palporul Virkum Thozhilalar
Sangam Vs. The Commissioner, Corporation of Tiruchirapalli, Tiruchirapalli, in support of her contention.
On the other hand, Mr. S.R. Rajagopal, learned counsel for the first respondent submitted that in O.S.A. No. 206 of 1993, the Division Bench
of this court held that the members of the revision petitioner association are squatters and they have no legal right upon the land of the first
respondent and therefore, when the members of the revision petitioner have no legal right to squat on the property, they cannot be given the water
and sewerage connection and that would amount to giving premium to the wrong doers and therefore, having regard to the judgment of the
Division Bench of this court rendered in O.S.A. No. 206 of 1993, the members of the revision petitioner are not entitled to have any indulgence
from this court. He further submitted that both the courts below have concurrently held that the members of the revision petitioners are not entitled
to have water and sewerage connection and such concurrent findings of fact need not be disturbed in this revision. He further submitted that if the
members of the revision petitioner are entitled to establish their right to be in possession of the property as claimed by them, during trial, thereafter,
the court can decide about the grant of injunction and till they establish their right to be in possession of the property, they are not entitled to have
any indulgence from this court and therefore, the order of injunction granted by the court below need not be disturbed and the revision be
dismissed.
Though it was contended by the learned Senior Counsel appearing for the revision petitioner that the findings in C.S. No. 911 of 1984 and
confirmed in O.S.A. No. 206 of 1993 will not operate as res judicata and the revision petitioners are not bound by the same stating that the suit in
C.S. No. 911 of 1984 was filed by 21 individual persons, I am not able to accept the contention of the learned Senior Counsel appearing for the
revision petitioner. It is seen from the judgment in C.S. No. 911 of 1984 that the suit was filed in a representative capacity by the persons in
occupation of the suit property and therefore, the preliminary objection raised by the learned Senior Counsel appearing for the revision petitioner
that the judgment in C.S. No. 911 of 1984 will not operate as res judicata and will not have any bearing to the suit cannot be accepted. It is
admitted that the members of the revision petitioners are in possession and enjoyment of the suit property and it is the specific contention of the
learned Senior counsel appearing for the revision petitioners that they are in settled possession of property and they are in possession of the
property for more than 60 years and in C.S. No. 911 of 1984, they were declared as trespassers and therefore, they have perfected title by
adverse possession as on the date of filing present suit by the first respondent and therefore, they have got every right to be in possession of the
property and they are entitled to get the water and sewerage connection from respondents 2 and 3.
The argument of the learned Senior Counsel has to be rejected having regard to the findings rendered in the judgment in C.S. No. 911 of 1984.
While dealing with issues 6 and 7, the learned Single Judge held that as per Exs. D1 to D16 marked in the suit, all the persons then in occupation
of the Muthureddy Thottam were found evicted on 24.3.1984 by due process of law and the learned Single Judge also held that they are not
occupiers of the suit as per the provisions of Tamil Nadu Slum Areas (Improvement and Clearance) Act, 1971. Further, while dealing with issue
No. 9 in that suit, it was held that the plaintiffs in C.S. No. 911 of 1984 were found to be in possession and occupation of 3 grounds out of 14-1/2
grounds and while answering issues 11 and 12, the learned Single Judge held that the plaintiffs in that suit did not have any right or interest either as
owner or tenant or whatsoever and they came into occupation of the suit property only after all the occupants were evicted during April 1984 and
their possession was merely unlawful and wrongful and they are deemed to be trespassers. Therefore, it is seen from the judgment rendered in
C.S. No. 911 of 1984 that the persons who were in occupation of the suit property were evicted in the year 1984 and the plaintiffs in that suit
came into possession of the suit property only after 1984 and they were treated as trespassers. Therefore, the contention of the learned Senior
Counsel appearing for the revision petitioner that the members of the revision petitioner association are in settled possession and they are in
possession of the suit property for more than 60 years and also perfected title by adverse possession cannot be accepted at this stage.
As regards the contention of the learned Senior Counsel appearing for the revision petitioner that as per Article 21 and 19 (1)(e) of the
Constitution of India, every citizen has got a right to shelter and it does not mean that a person has got a right to shelter alone and it is something
more than protection of one''s life and a person is entitled to food, water, environment, education, medical care and shelter as per the judgment
reported in Chameli Singh and others etc. Vs. State of U.P. and another, ) and therefore, the argument that so long as the members of the revision
petitioner association are in possession and enjoyment of the suit property, they are entitled to have civic amenities provided to them, is also liable
to be rejected.
In the reported case, the petitioners before the Supreme Court were the owners of the land which were acquired under the Land Acquisition
Act and they challenged the validity of the notification u/s 4(1) and the exercise of the power given u/s 17(b) read with section 17(4). In that case,
the appellants challenged the invoking of urgency provision viz., sections 17 and 17(4) of the Land Acquisition Act by which the enquiry
contemplated u/s 5A was dispensed with and in that context, the Honourable Supreme Court held that the Constitution of India guarantees the
residence and settlement and protection of life guaranteed by Article 21 encompasses within its ambit the right to shelter to enjoy the meaningful
right to life and that would take within its sweep the right to food, the right to clothing, the right to decent environment and a reasonable
accommodation to live in. But, the facts of this case are different and the petitioners have no right to be in possession of the property.
In the judgment reported in Tiruchirapalli Palporul Virkum Thozhilalar Sangam Vs. The Commissioner, Corporation of Tiruchirapalli,
Tiruchirapalli, the Division Bench of this court also relied upon the judgment reported in Olga Tellis and Others Vs. Bombay Municipal
Corporation and Others, and held that when a statute contemplates a statutory duty on the part of an authority to do a particular thing for
preservation of public property for public use, any direction against such statute amounts to scuttling a statutory duty and it is not proper for the
court to direct any party much less a statutory authority not to perform its duties even on humanitarian grounds. In that reported case, the Sangam
was formed to regulate the employment as well as street vending on NSB Road, Tiruchirapalli and apprehending threat of dispossession, they filed
the writ for issuance of a writ of mandamus directing the Commissioner, Corporation of Tiruchirapalli to regulate the conduct of the trade and
business in their respective places and sought for interim orders and interim order was not granted and in appeal, the Honourable Division Bench
held as stated above and refused to grant any interim order. Therefore, according to me, the judgment reported in Tiruchirapalli Palporul Virkum
Thozhilalar Sangam Vs. The Commissioner, Corporation of Tiruchirapalli, Tiruchirapalli, does not support the case of the revision petitioner.
According to me, the matter can be looked from another perspective. The first respondent/plaintiff filed the suit for permanent injunction
restraining respondents 2 and 3 herein from giving water and sewerage connection to the members of the revision petitioner association. As stated
supra, in the judgment in C.S. No. 911 of 1984, it has been held that persons in occupation of the suit property are squatters and they have to be
treated as trespassers. It was also held in that suit that the persons in occupation of the suit property were evicted in the year 1984 and thereafter,
they trespassed into the suit property and have put up huts. It is not the case of the revision petitioner that after having obtained permission from the
Corporation or from the Tamil Nadu Slum Clearance Board, they have occupied the suit property and as a matter of fact, it is held in the judgment
rendered in C.S. No. 911 of 1984 that the plaintiff in that suit failed to prove that their occupation of the suit property was as per the provisions of
Tamil Nadu Slum Areas (Improvement and Clearance) Act, 1971. It was further held that the buildings and huts found in the suit property were
not at all subject to any entry in the Register kept by the prescribed authority viz., Tamil Nadu Slum Clearance Board and therefore, it was held
that the plaintiffs in that suit were not occupiers attracting the definition of ''occupier'' and they were not entitled to the protection of the Tamil Nadu
Slum Areas (Improvement and Clearance) Act, 1971.
As per the provisions of Chennai Metro Water Supply and Sewerage Act (Act 28/1978), occupier and owner are defined u/s 2(j) and (k).
Though the two definitions are inclusive definitions, having regard to the definition of ''occupier'' and ''owner'' as defined in the said Act, the
members of the revision petitioner association will not come under the definition of occupier. Section 2(j) defines ''occupier'' as follows:-
occupier includes,-
(i) any person for the time being paying or liable to pay to the owner, the rent or any portion of the rent of land or building or part of the same in
respect of which the word is used or damages on account of the occupation of such land, or building or part thereof; and
(ii) a rent free occupant;
Section 2(k) defines ''owner'' as follows:-
owner includes-
(a) the person for the time being receiving or entitled to receive, whether on his own account or as agent, trustee, guardian, manager or receiver or
for any religious or charitable purpose, the rents or profits of the property in connection with which the word is used.
(b) the person for the time being in charge of the animal in connect with which the word is used.
Admittedly, the members of the association are not paying any rent and they are not occupying the property on rent free basis and they claim
to be in possession of the property in their own right. Therefore, they cannot come under the definition ''occupier''. As per section 56 of the said
Act, the authorised authority shall, on the application of the owner or occupier of any premises or the owner of a private street, arrange for the
applicant''s house-sewer or other sewer in the private street to empty into a sewer of the Board subject to certain conditions. Therefore, the
authorized authority shall give the connection only to an occupier or owner and when the members of the petitioner association are not occupiers
or owners, they are not entitled to have any sewerage connection.
Further, in the judgment in Alagi Alamelu Achi Vs. Ponniah Mudaliar, relied upon by the learned Single Judge in C.S. No. 911 of 1984, it is
held that when a court finds that the plaintiff''s possession of the property is wrongful, such possession cannot be protected by assistance of court.
If the petitioner is permitted to have the sewerage connection that would be giving a premium to the wrongful act and the court should not extend
its hand to such illegal occupation to have facilities so as to perpetuate their unlawful act. As the courts below and this court came to the conclusion
that the members of the revision petitioner are only trespassers and they are not in lawful occupation, respondents 2 and 3 cannot be directed to
give water and sewerage connection to them.
Further, if respondents 2 and 3 were directed to give water and sewerage connection to the members of the revision petitioner association on
humanitarian grounds, then everyone, who has no legal authority to put up a construction, will claim water and sewerage connection to his property
and law will not help such persons to enjoy such facilities. The right to decent environment is not only available to the members of the petitioner
association but also available to the neighbouring owners of property and if respondents 2 and 3 were directed to give water and sewerage
connection to the members of the revision petitioner association, who have not proved their right to be in possession and enjoyment of the
property, the environment of the neighbouring lawful owners will be affected and therefore, the balance of convenience is also not in favour of the
revision petitioner. Hence, I do not find any merit in the revision and I do not find any reason to interfere in the order of the court below. In the
result, the revision is dismissed. It is made clear that the finding given in this revision is only prima facie and if the revision petitioner is able to prove
that they have acquired right over the property by their lawful possession as contended by them during trial, the same can be considered by the
Trial Court and decided on merits. No costs. The connected miscellaneous petition is also dismissed.