Tuticorin New Shore Slum Dwellers Welfare Association vs The Chairman, Port Trust and Others

Mishra, J.—This petition has been filed in public interest by Tuticorin New Shore Slum Dwellers Welfare Association represented by its

Vice President. They have questioned the validity of a notice of the Chief Engineer, Tuticorin Port Trust, calling on the fishermen who have been

residing upon a parcel of land on the sea shore, to remove their houses and vacate the site under their occupation.

By a separate petition (W.M.P. No. 8934 of 1989), the petitioner sought to have amendment of the case title and substitution of the name the

Chairman, Port Trust, Tuticorin in the place of the Chairman, Madras Port Trust, who had been originally impleaded as the first respondent. The

Chief Engineer, Tuticorin Port Trust (second respondent) and the Chairman. Port Trust. Tuticorin (first respondent) have since appeared and

shown cause. There can be no objection to the amendment to the petition. The same is accordingly allowed.

After notice and cause shown, the case has been listed for hearing. Learned Counsel for the parties have been heard at length. This case can be

disposed of without recording any finding of fact, and hence it is accordingly being disposed of at this stage.

It is not in dispute that about 126 families belonging to the backward community of fishermen including the deponent, Vice President of the

petitioner Association, have been living since 2 to 21/2 decades upon the parcel of land in question. According to the petitioner, the fishermen

came upon the said land to live as an alternative site allotted to them by the Fisheries Department in consultation with the Port Officer, Tuticorin.

They have been since living, fishing on the high seas, in a colony with such amenities as electricity, and water connection given to many houses. A

church and a primary school, according to the petitioner, have come up in the Colony, the Fisheries Department of the State Government had also

put up some constructions. It is stated in the affidavit in support of the petition.

Thus the whole area which belonged to the Fisheries Department had developed as Fishermen''s residential colony. All the 126 families were well

established and since we were all very poor and we did not have any house, land or property of our own, we were assured of a residence with the

necessary facilities to carry on our fishing trade. In fact our living was on a day to day basis and it was the generous attitude of the Fisheries

Department which had given us some security in our lives, while so the Port Trust and the Harbour authorities planned to take over the lands

belonging to the Fisheries Department. The moment we heard about this development we appraised the Tuticorin Fishermen Co-operative Society

Limited who made a representation on behalf of all fishermen against taking over the site used by the Fishermen as their residential colony. In this

context the letter written by the Director of Fisheries to the President, Tuticorin Fisheries Co-operative Society Ltd. may be referred (Annexure

A). The director of Fisheries informed us that our representation was examined and they were considering to provide us with an alternative site

developed at Government costs. An extent of 5 acres of land lying north of the Roche Park was allowed for the use of the Fishermen and it was

also assured that this land will be made available to us free of costs for landing canoes. Further the same communication informed us that the

department is also taking action to improve the alternative site in order to make it convenient for the use of fishermen. This assurance by the

Fisheries Department gave quietus to our imminent problem. In pursuance of this assurance long after we shifted to the alternate site a written

permission was given to each of the residents to put up a hut and keep all the fishing materials. This communication mentioned that we will have to

pay an annual lease rent at the rate of Rs. 1.42 per square metre. But the lease rate was subsequently enhanced to Rs. 2.20 per square metre from

January, 1987. Since most of us are illiterates we did not realise that the site was allotted to each of us on a lease basis determinable at the option

of the post authorities. However when one of our members raised the issue in our Association we approached the Fisheries Department. They

assured that we could stay there permanently and the lease is only a procedural formality. We were all paying the lease rent at the rate fixed by the

Tuticorin Port Trust and continued our stay in the site allotted to us and carried on our fishing trade. All of a sudden we received a communication

in November, 1988 that permission granted to us to reside in a hut in port land is valid only upto 1.1.1988 and as such our request to extend the

annual lease was rejected. Consequently we were asked to vacate the land immediately and remove our huts. The Chief Engineer has also

sounded a threat that action will be taken to vacate and remove the huts by force, if we do not comply with their request. We have also been

warned that damages will be collected from us from 1.1.1988 till the date of vacation. It is this threatening notice which has constrained the

petitioner Association to come before this Honourable Court under Article 226 of the Constitution for redressed of their legitimate grievance.

In the counter affidavit filed on behalf of respondents 1 and 2, it is stated inter alia:

Regarding the facts of the case, it is submitted that the erstwhile minor Port of Tuticorin had granted permission to the Fisheries Department during

the year 1970 to make use of 5 acres of lands lying in between the P.W. D. Circuit House and Roche Park for a limited purpose of beaching the

canoes, drying the nets. Since it was subsequently brought to the notice of the Port, that the area was not used for the purpose for which it has

been allotted, the Port requested the Fisheries Department to take necessary action to evict the Fishermen. But, the Fisheries Department

requested the Port to take action for vacating the Fishermen. While actions were taken to evict the fishermen the dry fishing merchants approached

the Port with request to allot the lands occupied by them on lease basis. In fact that the eviction could not be effectively done and the Revenue as

well as Fisheries authorities were not helpful in the process of eviction. Since the Revenue authorities have not taken effective steps for eviction the

Port was permitted the dry fish merchants on payment of lease rent in advance every year from 1984 onwards. However, during November,

1986, the ""District Collector and the Sub Collector of V.O.C. District had requested the Chairman to cancel the lease to the dry fish met chants, in

view of the bad odour emanated all around roche park area due to dry fishing. The Collector also agreed to provide alternative site to the dry

fishing merchants at Mappillaiyurani Viljage. The dry fishing merchants did not adhere to the terms Of the lease and failed to vacate the premises

and eviction notices were issued during 19S7-88 directing them to vacate the Port Land. 3. The claim that the area was allotted to Fishermen

Families for residential purpose is not correct. The area was earmarked for keeping their fishing materials and beaching the canoes and drying the

nets. The claim that the families were living in the colonies and as a matter of right entitled to amenities are all not correct and besides the point. The

lands belong to the Port and they were originally allotted on short term lease for keeping fishing materials and not for residential purpose. And in

view of what is stated above, the slow conversion by the dry fishing merchants and other fishermen which polluted atmospheric sphere, action

were taken to cancel the permission granted to them and evict them from the land in question.

Besides the above reason, it is stated in the counter affidavit that the land in question is required for construction of cargo sheds, godown and for

the expansion of the port. It is, however, also stated in the counter affidavit:

The entire claim of the petitioner is based on the wrong assumption that the lands belong to the Fisheries Department. The construction made by

the Fisheries Department. Service connection given by the Electricity Department and Sanitary connection given by the Municipality will not

provide the residents with any rights whatsoever as against the Port. The claim that the residents are poor and houseless persons will not in any

way support the claims of the residents because the purpose for which the land was given were misused and the entire area is being polluted. The

residents, after 1.1,1988, are squatting in the lands without permission and without even paying ground rent fixed by the Port. In these

circumstances, they are not eligible to any indulgence from this Hon''ble Court.

Thus, from the above, the question which directly emerge are:

(1) What is the status of the fisherman families living upon the land?

(2) What is the relationship between Tuticorin Port Trust on the one hand and the fishermen families on the other hand?

(3) Is the impugned notice of the second respondent dated 25.11.1988, a notice determining a lease/canceling a lease or a notice calling upon the

encroaches to remove the encroachment?

I am not required in this case to enter into the larger question whether the fishermen who lived with their families and admitted amenities in the huts

or pucca houses can be asked to vacate their homes and thus rendered homeless without any provisions made whatsoever to rehabilitate them or

not. As on the facts set forth above, it is obvious before any right in the Tuticorin Port Trust to vacate/eject the fishermen from the Colony in

question is conceded, that it is necessary to note whether they are owners of the land in question or not. Learned Counsel for the respondents has

brought to my notice the decision in Abbas Vs. Andi Chettiar and Others, . That was a case in which the plaintiffs instituted a suit in the District

Munsifs Court for a declaration of title, possession and mesne profits against the defendants who were fishermen. The defendants alleged that they

have been using the area which was the subject of dispute for drying fish and for keeping their nets and the boats used for fishing. They also alleged

that they had planted some coconut trees in a small portion of the area. The appellate Court noticed the nature of user and exercise of possession

of the defendants and held that isolated acts of user which were also interrupted and not continuous, as drying fish and exposing fishing nets to the

sun etc., could not constitute the kind of continuous possession with the necessary animus, which is adverse possession in law. As to the plaintiffs''

title, it took notice of certain documents and the contentions of the parties and recorded its findings. The High Court said:

The problem is somewhat complicated, because of the indisputable fact that the earlier sale deed and the subsequent sale deed differ as to the total

area of the properly. But even assuming that the later sale deed is the basis of the title of the plaintiffs, the question remains to be considered

whether the plaintiffs could obtain possession of the foreshore area, depriving the defendants altogether of their customary rights to dry fish at the

spot and of keeping their fishing nets and boats etc. I may take it as practically concluded by the findings of the first appellate Court, which on

issues of fact would be ordinarily binding on the Court, that defendants failed to establish their title through adverse possession. As the learned

Subordinate Judge rightly emphasised, such isolated acts of user as drying fish, or fishing nets, etc., cannot constitute adverse possession in law. I

may also take it that but for the fact that this foreshore adjoins the sea, the property is also within the area which the plaintiffs could claim on the

basis of the later sale deed. Even so, the question remains whether the nature of the property does not require some modification of the decree

granted in this case by the appellate Court.

Thus, postulating, the High Court proceeded to take notice of the law on the subject and found a quotation from Lord Chief Justice Hale''s treatise,

De Jure Maris in the decision in Mellor v. Walmsley (1905) 2 Ch. 164:

The shore is that ground that is between the ordinary high water and low water mark. This doth prima facie and of common right belong to the

King, both in the shore of the sea, and the shore of the arms of the sea.

and based on that, the law laid down by the Chancery that the grantee was entitled to free and unrestricted access to the sea from every part of his

western frontage, over every part of the strip of land lying between that frontage and the sea"", and pronounced its judgment:

In the present case, as far as I can judge from the plan and report filed by the Commissioner, the area in dispute is definitely part of the seashore

immediately adjacent to the actual ocean. It is not clear whether this strip of land is really between the high water mark and the low water mark.

There is no evidence on that point. But it is at least doubtful if the plaintiffs would really claim the shore proper, as defined in Mellor v. Walmsley

(1985)2 Ch. 164 cited above as theirs in support. As was pointed out in one context in that very decision, the sea itself is liable both to flow and

cover the land, and also to ebb or recede and make the land available for occupation by man.

The High Court modified the decree passed by the first appellate Court:

I do not think it is necessary to substantially alter the decree of the lower Court as it stands, for the simple reason that the facts are lacking on the

vital aspect whether the suit property is within the limits of the legally defined foreshore. But I must say that, if it is within those limits, the plaintiffs

may not be entitled to claim that part of the property as against the State, which is not a party to the present action.

The decree, as passed by the first appellate Court may, therefore, stand. But it will be subject to the modification or refinement that the

southernmost area now in controversy cannot be fenced in, or otherwise enclosed, by the plaintiffs, and that the defendants are at liberty to

exercise their customary rights therein, in regard to drying fish, keeping boats and fishing nets without let or hindrance. Those rights must be

regarded as a kind of easement limiting the title of the plaintiffs to this part of the suit property.

The decision in Abbas Vs. Andi Chettiar and Others, , is thus an authority to show that the shore in relation to sea is that ground which is

between the high and low water mark and prima facie belongs to the State, both in the shore of the sea and the shore of the arms of the sea, and

where the area in dispute is definitely part of the seashore immediately adjacent to the actual ocean, no one can claim that land as his property as

against the State, even if there is a document of title in support, but fishermen are entitled to exercise their customary rights therein in regard to

drying fish, keeping boats and fishing nets, without let or hindrance, as a kind of easement on account of long enjoyment of such rights in respect of

the said land. Whether ''State'' in the context of shore land will mean Government of the State or a trust or any other authority created for such

specified purpose as in respect of sea transport, Port Trust is constituted. In such a situation, unless it is known that the land in dispute is part of

sea shore, it is not possible to acknowledge that no persons can claim title by dint of either grant or transfer otherwise or adverse possession by

dint of long user and possession with the necessary animus. The facts aforementioned show that for the past 2 to 2 1/2 decades, as many as 600

people have been living upon the land in about 126 dwelling houses with roads electricity, water supply, official constructions of the Fisheries

Department, a Church and a School. A whole community of people thus had full enjoyment of the land exclusively to themselves, and they are

having the said enjoyment continuously within the full knowledge of the Fisheries Department of the State Government as well as the Port Trust. It

is also not known how the Port Trust came to acquire the land. That is to say, what is the basis of its title? Whereas there is no denial to the

assertion of the petitioner that about 600 people including children lived in a colony partially developed and they have been living upon the land

since the past 2 to 2 1/2 decades, it is asserted in the counter affidavit that the Port Trust permitted the Fisheries Department of the State

Government to allow fishermen to beach the canoes and dry the nets upon the land; but the fishermen instead used the land for other purposes, and

that when this was brought to the notice of the Port that the area was not used for the purpose for which it had been allotted, the Port requested

the Fisheries Department to take necessary action to vacate the fishermen. But the Fisheries Department instead asked the Port to take action for

vacating the fishermen. What does it show? It shows clearly that the Port Trust came to know some time soon after the fishermen occupied the

land that they were using the land for purposes other than the one for which the land had been allotted to them. Thus, there is an implicit admission

in the said pleading that fishermen enjoyed possession of the land in question with necessary animus, and unless shown otherwise, as noticed in the

decision of this Court in Abbas case, AIR 1963 Mad. 74, they have a claim of title by adverse possession. In any case if it is not established as a

fact that fishermen utilised the land only under the permission of the Port Trust, by dint of user of the land for a continuously long period as noticed

above, even if it is found that they have not perfected any title by adverse possession, they may have the rights of easement. In any case, the Port

Trust will be required to establish that fisherman living upon the land have encroached upon the land. Unless that is established, and it is also

established besides that the Port Trust has got title to the land, it cannot evict the fishermen. Alternatively, there is no such material before me that I

may come to a definite conclusion that there has been a relationship of landlord and tenant between the Port Trust on the one hand and the

fishermen on the other. It appears, however, that at some stage, the fishermen have been paying some ground rent to the Port Trust. If that created

a relationship of landlord and tenant, and thus the respective parcels of land of each fisherman were/are leaseholds, the Port Trust will be required

to proceed in accordance with the provisions under the Transfer of Property Act to determine the lease, and if it is found that the leasee is holding

over notwithstanding the determination of the lease, institute a suit, establish its title before the appropriate civil court and then obtain a decree for

ejectment of the tenants. Even a trespasser cannot just be thrown out. Possession in itself is a right that is exercised with all necessary animus

against all such persons who may have their interests in the land. No person thus can go to the trespasser and say ""vacate"", and if it is not vacated,

thrown him out. In that case also, only such action can be taken against the trespasser which is in accordance with the law of eviction of a

trespasser.

Having thus noticed the controversy brought before me, I am of the opinion that respondents 1 and 2 cannot evict the fishermen from the lands

in their possession or prevent them from enjoying their respective rights upon the land without taking recourse to the due process of law. The

notice calling upon them to vacate for the said reason is without jurisdiction. The same is accordingly quashed.

In the result, the writ petition is allowed. The notice dated 25.11.1988 issued by the second respondent is quashed. The respondents are

restrained from vacating the fishermen living in the land lying between the P.W.D. circuit House and Roche Park in the town of Tulicorin save and

except in accordance with law. Let a writ in the nature of certiorari and consequential mandamus issue. There will be no order as to costs.