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Judgment
Jagadeesan, J.—The Petitioner-association has filed this writ petition for the issue of a writ of mandamus forbearing the Respondents herein from implementing the resolution of the third Respondent-Municipality dated 25.05.98 seeking to evict the members of the Petitioner association from the premises which they occupied. The Petitioner-association was formed in June, 1998. The members of the Petitioner-association are residing in Sengodipurm for the past 40 years. The land is Natham Poramboke land. They have given representations to the third Respondent Municipality seeking patta in respect of the portions of their occupation. The Municipal Council in the meeting held on 25.05.98 decided to evict the members of the Petitioner-association from their occupation pursuant to the letter dated 16.09.97 of the second Respondent. In order to protect the welfare of the residents, the association was formed. Eight members of the association filed suits for bare injunction against the third Respondent before the District Munsif, Dharmapuri. The subject-matter of those suits is different from that of this writ petition. In any event, the civil proceedings was stalled by the indefinite boycott of the court by the lawyers. The second Respondent in his letter dated 11.08.98 directed the third Respondent to initiate eviction proceedings and in case of failure, proceedings will be initiated against the third Respondent u/s 39(2) of the District Municipalities Act. Some other persons who had occupied the poramboke lands within the municipal limits have been benefited by the resolution of the Municipality dated 24.11.97 for the grant of pattas and as such the action of the Respondents herein trying to evict the members of the Petitioner is discriminative and violative of their fundamental rights. Hence, the writ petition has been filed. Moreover, Section 39(2) of the Tamil Nadu District Municipalities Act cannot be invoked, since the Municipal Council has decided to request the rights of the members of the Petitioner-association for the grant of patta. Hence, the Municipality should be restrained from taking any action.
The third Respondent has filed counter affidavit wherein it is stated that an extent of 0.56 acre of land in Survey Nos. 12-B, 12-C and 12-D in Dharmapuri Town has been classified as Town Extension. A portion of the land was occupied by the families of Sweepers and Sanitary Workers of the Municipality without any permission. The members of the Petitioner-Association and others have grabbed the land occupied by the Municipality workers by force. The members of the Petitioner herein encroached upon the municipal land without any right whatsoever. Hence, the Municipality, by its resolution, wanted to evict the encroachers in order to construct a daily market at the cost of Rs. 20 lakhs. Some of the members of the Petitioner-association as well as other encroachers filed civil suits before the Civil Court and having failed to get any interim order, the writ petition has been filed before this Court. The fact that the Respondent-Municipality has collected tax and provided water connection does not confer any right on the encroachers to claim title over the property. They levying of tax and providing amenities to the encroachers have been done by the Municipality without prejudice to its right to take possession of the land whenever the same is required for developmental work. Though the members of the Petitioner-association has applied for patta, the Municipality by their letter dated 19.10.93 informed the Special Tahsildar (Urban Land Tax) that the land belongs to the Municipality and cannot be assigned to any individual. The eviction proceedings contemplated against the members of the Petitioner is not discriminatory or unconstitutional. The mere fact that some of the encroachers in other parts of the municipal area have been granted patta does not confer a right on the members of the Petitioner-association to claim patta ignoring the public interest. When the Municipality decided to construct a daily market at a cost of Rs. 20 lakhs in the land in question, the eviction proceeding resorted to by the Municipality is quite legal and valid.
The Petitioner has filed a reply affidavit that the members of the Petitioner-association are Sweepers or the families of the Sweepers who have been in existence at Sengodipuram when originally it was a minor Panchayat in 1995. The Sweepers have occupied the places as there was no quarters. They found it difficult to get accommodation since they belong to the lower caste and there was lot of hostility against them from the residents of the village/town who did not want them to provide accommodation. The families put up hutments in the disputed place and living there. Their names have been registered in the voters list. In the year 1980 under the directions of the then Chief Minister, late M.G. Ramachandran, the Government sanctioned funds for converting the hutments into a tiled house which was done free of cost for the said 52 families. Electricity and water connection had been given. Their occupation has been with full knowledge and support of the Government and local administration. The third Respondent-Municipality has not stated as to why in 1998 it resolved not to evict the members of the Petitioner-association and on what basis now the State Government has directed them to evict 52 families which are residing in the disputed place belong to the poorest section of the society and have no where, else to go. The Respondents should discharge their statutory obligations and provide roof over their head just as they did in the case of others.
The learned Counsel for the Petitioner contended that on 24.11.97, the Municipality passed a resolution recommending issue of patta in favour of the members of the Petitioner-association. The second Respondent by his proceedings dated 16.09.97 has directed the Municipality to remove the encroachments and the Municipality passed a resolution on 25.05.98, resolving to evict the encroachers. The second Respondent has no authority to issue such instructions to the third Respondent and the threat to the third Respondent is an arbitrary action of the second Respondent and virtually amount to the interference in the administration of the third Respondent. It is the duty of the State to provide shelter to every one and as such the members of the Petitioner-association are entitled for the accommodation. If the disputed land is required for the use of the third Respondent, they should provide alternative accommodation for the members of the Petitioner-association and without doing so, it is not open to them to evict the encroachers. The members of the Petitioner-association being the Sweepers and Scavengers working in the Municipality, cannot be evicted without alternative accommodation. The learned Counsel for the Petitioner further contended till the application filed by the members of the Petitioner- association for the issue of patta is disposed of they cannot be evicted.
The learned Counsel for the third Respondent contended that the pendency of the application for the issue of patta cannot be a ground to restrain the third Respondent from initiating the eviction proceedings. The Petitioner''s contention that the encroachers are only the employees of the Municipality is baseless and that was not the plea in the affidavit filed in support of the writ petition. Only by way of reply, this new plea has been raised. When the land is required for the Municipality purpose, that too for the public utility, it is not open to the Petitioners to contend that the eviction is resorted to with mala fide intention. The second Respondent has got every authority to direct the Municipality for proper administration of the Municipal properties. Though the Municipality passed a resolution, recommending issue of patta, always it is (sic) to them to cancel the resolution in the public interest and hence the impugned resolution is quite legal and valid and the same can be in force.
The questions for consideration are:
i) Whether the second Respondent has authority to issue instructions to the third Respondent in respect of the administrative matter?
ii) Whether the Petitioners are entitled for alternative accommodation as of right before ever the eviction proceeding are resorted to?
The learned Counsel for the Petitioner contended that the Municipal Council in its resolution dated 24.11.97 has decided to recommend to the Government for the issue of patta in favour of those who are in occupation of the government poramboke land for more than 40 years in the following places:
Pennagaram Road, New Thirupathur Road, M.G.R. Nagar, Sesaneri, S.V. Road, Anna Sagaram, Divisional Development Colony, East Railway Road and Vediyappan Thittu.
When the Municipality has decided to recommend the issue of patta on 24.11.97, in the latter resolution dated 25.05.98 has decided to resort to eviction proceedings of the encroachers pursuant to the letter written by the second Respondent dated 16.09.97. Hence, the impugned resolution has been passed by the Municipality only under the directions of the second Respondent and the Municipality has not passed the resolution of its own course. The second Respondent has no power to issue such instructions.
It may be pertinent to note that the Petitioners are in occupation of the land in Survey No. 12-B of Vellagoundanpalayam Village in Sengodipuram. The earlier resolution dated 24.11.97 of the Municipality recommending for the issue of patta relates to some other places and not with regard to the place in occupation of the Petitioners. Hence, it cannot be said that the Municipality has given a go-by to the earlier resolution and resorted to eviction proceedings under the directions of the second Respondent.
So far as the directions issued by the second Respondent is concerned, it is clear from the resolution itself that the Municipality has been directed to remove the encroachments in general and not with regard to any particular place. The Municipality is not expected to permit the encroachers to occupy the places of the government land which is under the control of the Municipality. The Municipal Authorities are expected to protect the properties of the Municipality as well as the Government. When the Municipalities failed to do so, the second Respondent has got every authority to give instructions to the local bodies to discharge their functions properly.
Section 39 of the Tamil Nadu District Municipalities Act is as follows:
State Government''s power to undertake works for, or to take action in default of a municipality.--(1) If at any time it appears to the State Government that a Municipal Council, Chairman or Executive Authority has made default in performing any duty imposed by or under this or any other Act, they, may, by order in writing, fix a period for the performance of such duty.
(2) If such duty is not performed within the period so fixed, the State Government may appoint some person to perform it, and may direct that the expense of performing it shall be paid, within such time, as they may fix, to such person by the Municipal Council.
Sub-section (1) empowers the State Government to direct the Municipality to carry out the duties within a specified time whenever the State Government feels that the Municipality has failed to perform the duty as imposed either under the District Municipalities Act or under any other Act.
It has been further held in the judgment reported in Ahmedabad Municipal Corporation Vs. Nawab Khan Gulab Khan and others, at page 162 in paragraph 20 as follows:
Every Municipal Corporation has statutory obligation to provide free flow of traffic and pedestrians'' right to pass and re-pass freely and safely; as its concomitance, the Corporation, Municipality have statutory duty to have the encroachments removed. It would, therefore, be inexpedient to give any direction not to remove, or to allow the encroachment on the pavements or footpaths which is a constant source of unhygienic ecology, traffic hazards and risk prone to lives of the pedestrians. It would, therefore, be necessary to permit the Corporation to exercise the statutory powers to prevent encroachment of the pavements/footpaths and to prevent construction thereon.
From this passage, it is clear that it is the duty of the Municipality to remove the encroachments if it is a nuisance to the public. When the Municipality failed to take any action against the encroachers, in this case, the second Respondent has directed them to take suitable action to remove the encroachments in accordance with Sub-section (1) of Section 39 of the said Act and as such, it cannot be said that the second Respondent has acted in arbitrary manner or without any jurisdiction or interfered with the administration of the Municipality. Hence, the first issue is found against the Petitioner.
So far as the second issue is concerned, the learned Counsel for the Petitioner relied upon the judgment reported in Olga Tellis and Others Vs. Bombay Municipal Corporation and Others, and some of the portions in the judgment reported in Ahmedabad Municipal Corporation Vs. Nawab Khan Gulab Khan and others, which are extracted lower down and contended that it is the duty of the State to provide shelter to the individual and as such the State has to discharge its function or obligation and consequently the Respondents cannot evict the Petitioner without providing alternative site. In fact, the following are the passages relied upon by the counsel for the Petitioner from the judgment Ahmedabad Municipal Corporation Vs. Nawab Khan Gulab Khan and others, :
Article 19(1)(e) accords right to residence and settlement in any part of India as a fundamental right. Right to life has been assured as a basic human right under Article 21 of the Constitution of India. Article 25(1) of the Universal Declaration of Human Rights declares that everyone has the right to standard of living adequate for the health and well-being of himself and his family; it includes food, clothing, housing, medical care and necessary social service. Article 11(1) of the International Covenant on Economic, Social and Cultural rights lays down that State parties to the Covenant recognise that everyone has the right to standard of living for himself and his family including food, clothing, housing and to the continuous improvement of living conditions.
He also drew the attention of this Court to the passage extracted by the learned Judges from the reported judgment in Chameli Singh and others etc. Vs. State of U.P. and another, and M/s. Shantistar Builders Vs. Narayan Khimalal Totame and others, .
In Ahmedabad Municipal Corporation case, the Supreme Court by order dated 11.05.1995 has directed the Municipal Corporation to frame a scheme to accommodate the hut-dwellers enabling the hutmen to have permanent residence. In the discussion portion in para 12, the Apex Court has referred to Section 284(1) of the Ahmedabad Municipal Corporation Act which imposes a statutory duty on the Corporation to make provision for accommodation which is clear from the following passage of the judgment:
That apart Section 284(1) of the Act also imposes a statutory duty on the Corporation to make provision for accommodation enjoining upon the Commissioner, if it is satisfied that within any area or any part of the City it is expedient to provide housing accommodation for the poor classes and that such accommodation can be conveniently provided without making an improvement scheme, it shall cause such areas to be defined on a plan?
In the case on hand, there is no such corresponding provision in the Tamil Nadu District Municipalities Act. A reading of the entire judgment would disclose that nowhere the Supreme Court has held that the State has to be directed to provide alternative accommodation to all those encroachers facing eviction. This is very clear from the following passage:
It is true that in all cases, it may not be necessary, as a condition for ejectment of the encroacher, that he should be provided with an alternative accommodation at the expense of the State which, if given due credence, is likely to result in abuse of the judicial process. But no absolute principle of universal application would be laid in this behalf. Each case is required to be examined on the given set of facts and appropriate direction or remedy be evolved by the Court suitable to the facts of the case. Normally, the Court may not, as a rule, direct that the encroacher should be provided with an alternative accommodation before ejectment when they encroached public properties, but, as stated earlier, each case requires examination and suitable direction appropriate to the facts requires modulation.
In another place, the Apex Court has observed as follows:
No inflexible rule of hearing and due application of mind can be insisted upon in every or all cases. Each case depends upon its own backdrop. The removal of encroachment needs urgent action. But in this behalf what requires to be done by the competent authority is to ensure constant vigil on encroachment of the public places. Sooner the encroachment is removed when sighted, better would be the facilities or convenience for passing or re-passing of the pedestrians on the pavements or footpaths facilitating free flow of regulated traffic on the road or use of public places. On the contrary, the longer the delay, the greater will be the danger of permitting the encroachers claiming semblance of right to obstruct removal of the encroachment. If the encroachment is of a recent origin, the need to follow the procedure of principle of natural justice could be obviated in that no one has a right to encroach upon the public property and claim the procedure of opportunity of hearing which would be a tardious and time-consuming process leading to putting a premium for highhanded and unauthorised acts of encroachment and unlawful squatting. On the other hand, if the Corporation allows settlement of encroachers for a long time for reasons best known to them, and reasons are not far to seek, then necessarily a modicum of reasonable notice for removal, say two weeks or 10 days, and personal service on the encroachers or substituted service by fixing notice on the property is necessary.
From the above extracted passage it is clear that the Apex Court has felt that even the demand for the issue of notice by the encroachers of recent origin is putting a premium for high-handed and unauthorized act of encroachment. If that be so, the principles laid down by the Apex Court cannot be construed as if it is a mandate on the part of the State Government to provide alternative accommodation for all the encroachers which is nothing but a premium to be paid by the State for the unauthorised occupants.
Olga Tellis case has also been referred in the Ahmedabad Municipal Corporation case in the following manner:
No one has a right to make use of a public property for the private purpose without the requisite authorisation from the competent authority. It would, therefore, be but the duty of the competent authority to remove encroachments on the pavement or footpath of the public street obstructing free flow of traffic or passing or repassing by the pedestrians.
This view was firmly laid down by this Court in Olga Tellis and Others Vs. Bombay Municipal Corporation and Others, page 57 thus:
No person has a right to encroach by erecting a structure or otherwise on footpaths and pavements or other place reserved or earmarked for a public purpose like (for e.g. garden or play ground) and that the provision contained in Section 314 of the Bombay Municipal Corporation Act is not unreasonable in the circumstances of the case.
From the question framed in paragraph 8 referred to above, it is clear that the proposition has to be considered and construed relating to the facts and circumstances of a particular case and cannot be taken as if a blanket direction.
In fact on an earlier occasion I had dealt with this question in the judgment reported in N. Arunachalam and 7 others Vs. The Avadi Municipality, wherein I have held as follows:
The law laid down in each case has to be looked into in the context of the particular case and at times, the same cannot be uniformly taken for all circumstances. Considering the facts of the present case, I am of the view that the principles laid down by the Supreme Court in the said pronouncement may not help the Petitioners'' case.
Coming to the facts of the case, though in the reply affidavit the Petitioner-has stated that all the members of the Petitioner association are employees under the municipal administration, no material has been placed before the Court to establish the same. In the counter affidavit filed by the second Respondent, it is clearly stated that the Petitioners have grabbed the land which was occupied by the poor municipal workers by force. Hence, it cannot be said that the members of the Petitioner-association are the municipal workers.
Eight out of 54 members of the Petitioner-association admittedly filed the suit as stated in paragraph 7 of the affidavit filed in support of the writ petition. As stated already, in the said affidavit, the members of the Petitioner-association did not claim that they are the workers of the Municipality.
The learned Counsel for the Petitioner produced a copy of the plaint filed by one Murugan in O.S.151/98. Along with that the Secretary of the Petitioner-association has filed an additional affidavit wherein it is stated that the suits filed by the persons were identical and one copy is produced for perusal. In the plaint filed by one Murugan, he has stated that originally the vacant site was encroached by one Nachi, a sanitary worker in the year 1945 with a thatched house. She started to assert her title over the property. On 16.07.90, the said Nachi and her son Venkatesan delivered possession to one Sellammal by receiving some amount. In turn, Sellammal transferred the site in favour of Plaintiff Murugan on 27.04.92 by receiving some amount and thereafter the said Murugan demolished the thatched house and constructed a terraced house. Further, it is stated that himself and his predecessors have prescribed title by adverse possession.
From the above averments in the plaint, it is very clear that even though originally the municipal employee occupied the land, subsequently she transferred the land to third parties by receiving consideration therefor and now most of the alienees are in occupation of the disputed place. When the occupants of the place had purchased the property or occupancy rights and in enjoyment of the same, they cannot be considered to be downtrodden who are eligible for the accommodation from the State Government. When they are in a position to purchase the right of occupancy or the portion of property encronched upon, they can purchase the property of their own as well and occupy the same. Their conduct is nothing but to make gain for themselves by paying a small amount to the original encroacher. If this is entertained, then the government land is the matter of transfer between the third parties by making gain or profit for themselves without the notice or knowledge of the real owner, the Government.
Hence, I am of the view that the Petitioners herein cannot be considered to be those who are entitled for alternative accommodation; especially when the Government cannot be directed with a mandate to provide the same. If the State Government is compelled to provide the shelter food and clothes for every individual then no individual will have any inclination to work. Moreover, they will engage themselves in making profit out of the allotment. In many a place, the allottees under the Slum Clearance Board and other welfare schemes obtained the allotment and thereafter they sell away the house or the shelter they obtained and once again they occupied the government land by encroaching the same. If Article 19(1)(e) of the Constitution of India is to be enforced, first of all the Government should be directed to formulate the scheme as to identify the persons for such allotment with a right of personal occupation without any power of alienation and the condition should be enforced without any leniency. Unless this is done, it is impossible to issue a direction to the State Government to provide alternative accommodation for the encroachers.
I do not find any merit in the writ petition and accordingly, the same is dismissed.