S. Jayaraman and Another vs Corporation of Madras and Others

G. Rajasuria, J.—S.A. No. 308 of 2006 is filed by the 4th defendant in the suit-Jayaraman, as against the judgment and decree dated

12.12.2005 passed by the Additional District and Sessions Judge, cum Fast Track Court No. IV, Madras, in A. S. No. 362 of 2003 confirming

the judgment and decree dated 18.7.2003 passed by the XIII Assistant City Civil Judge, Madras in O.S. No. 7829 of 1993, which is one for

mandatory and permanent injunctions.

S.A. No. 521 of 2006 is filed by the 3rd defendant in the suit-Thiyagarajan as against the judgment and decree dated 30.4.2004 passed by the

Additional District and Sessions Judge (2nd Fast Track Court, Chennai), in A.S. No. 140 of 2001 confirming the judgment and decree dated

11.12.2000 passed by the V Assistant City Civil Judge, Chennai in O.S. No. 1026 of 1992, which is one for declaration and permanent

injunction.

The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court.

A summation and summarization of the germane facts absolutely necessary for the disposal of these appeals would run thus:

(a) One Jeyaraman filed the suit O.S. No. 1026 of as against the following defendants:

Collector of Madras

Government of Tamil Nadu, rep. by Tahsildar, Egmore, Nungambakkam Madras.

Thiyagarajan

seeking the following reliefs:

to pass a judgment and decree against the defendants:

(a) for declaration, declaring that the order dated 10.1.992, A2/14821/88 passed by the defendants is illegal, null and void;

(b) Permanent injunction restraining the defendants or his men and agents from interfering with the plaintiff''s peaceful possession and enjoyment of

the Temple property (i.e.) Singaravelan Temple with its premises in T.S. No. 59 Block No. 21, situated at No. 1, Selvavinayagar Koil Street,

Arumbakkam, Madras-106; and

(c) award the cost of the suit.

(extracted as such)

on the main ground that the property described in the schedule of the plaint is under the occupation of the temple.

(b) In fact, on 2.2.1985, the plaintiff/jeyaraman was put in possession of the said property; on 22.8.1988 the defendants, namely, the Collector of

Madras and the Government of Tamil Nadu levied FCR for the land; the plaintiff paid the rent for the land. On 31.3.1986 the defendants issued no

objection certificate to the plaintiff to get electricity supply to the temple premises. On 10.1.1992, the defendants passed the order, without

adhering to the principles of natural justice, and they attempted to dispossess the plaintiff. Hence, the suit.

(c) Whereas, D2-The Government of Tamil Nadu filed the written statement disputing and challenging the maintainability of the suit. The gist and

kernel of the written statement would run thus:

(i) The plaintiff Jeyaraman made unlawful encroachment over the Government land and constructed illegally a terraced building and is using the

same as godown and temple, which is on the upstair portion of the encroached area. Relating to the said encroached land, FCR was levied by the

Tahsildar vide proceedings B1/15099/88 dated 21.8.1988. Such levy of FCR will not confer any right on the part of the plaintiff to lay claim over

the Government land.

(ii) As per the Tamil Nadu Land Encroachments Act, with the approval of the Collector the proceedings have been initiated; however, the plaintiff

filed the suit O.S. No. 6436 of 1989 in the City Civil Court, Madras, as against the Corporation of Madras and it is not known as to how the

Corporation allowed the plaintiff to raise building also in the said land belonging to the Government.

Accordingly D2 prayed for the dismissal of the suit.

(d)D1 adopted the written statement of D2.

(e) D3-Thiagarajan filed the written statement resisting the suit and supporting the contentions of the Government.

(f) Whereupon issues were framed.

(g) During enquiry, the plaintiff examined himself as P.W.1 along with P.W.2 and marked Exhibits A-1 to A-16. On the defendants'' side as many

as three witnesses were examined as P.Ws.1 to 3 and Exhibits B-1 to B-28 were marked.

(h) Ultimately, the suit was decreed to the limited extent that the plaintiff should not be removed otherwise than in accordance with law.

(i) Being aggrieved by and dissatisfied with the said judgment and decree of the lower Court, the appeal A.S. No. 140 of 2001 was filed by D3-

Thiagarajanan in the suit.

(j) Whereupon the first appellate Court dismissed the appeal confirming the judgment and decree of the trial Court in O.S. No. 1026 of 1992.

(k) Impugning and challenging the judgments and decrees of both the Courts below, the D3/Thiagarajan in the suit O.S. No. 1026 of 1992 filed

the S. A. No. 521 of 2006 on various grounds.

O.S. No. 7829 of 1993

(i) One other suit O.S No. 7829 of 1993 was filed by Thiayagarajan citing the following persons as defendants:

The Commissioner, Corporation of Madras, Rippon Building, Madras.

The Collector of Madras, Kamarajar Salai, Chennai, Madras-600 005

The Tahsildar, Egmore-Nungambakkam Taluk Office, Madras

Jayaraman

with the following prayer:

to pass a decree for mandatory injunction directing the defendants 1 to 3 to remove the unauthorised superstructure put up by the forth defendant

by encroaching the Corporation public street known as Pillayar Koil Street alias Selva Vinayakar Koil Street, more fully described in the schedule

hereunder.

(b) Decree for permanent injunction restraining the fourth defendant and his men from either encroaching the Corporation Public street known as

Pillayar Koil Street alias Selva Vinayakar Koil Street, or causing any obstruction whatsoever in the street;

(c) grant cost of the suit.

(extracted as such)

(ii) In brief the suit filed by Thiyagarajan was for removal of the structure put up by Jayaraman-the plaintiff in O.S. No. 1026 of 1992 in the suit

property concerned.

(iii) D1 and D3 filed the separate written statements resisting the suit.

(iv) Whereupon issues were framed.

(v) During trial, the plaintiff-Thiyagarajan examined himself as P.W.1 and marked Exhibits A-1 to A-30. On the defendants'' side as many as three

witnesses were examined as D.Ws.1 to 3 and Exhibits B-1 to B-7 were marked.

(vi) After hearing both sides, the trial Court decreed the suit O.S. No. 7829 of 1993 in toto.

(vii) Being aggrieved by and dissatisfied with the same, the 3rd defendant in the said suit-Jayaraman filed the appeal A.S. No. 362 of 2003 for

nothing but to be dismissed by the first appellate Court confirming the judgment and decree of the trial Court in O.S. No. 7829 of 1993.

Challenging and impugning the judgments and decrees of both the Courts below, Jayaraman preferred the S.A.N. 308 of 2006 on various

grounds.

My learned predecessor framed the following substantial questions of law in these second appeals:

S.A. No. 308 of 2006:

(i) Whether the Courts below ought not to have dismissed the suit as not maintainable inasmuch as the plaintiff has no personal interest in the

subject matter of the property.

(ii) Whether the Courts below are right in ignoring the previous decree of Court in directing mandatory injunction.

S.A. No. 521 of 2006:

Whether the suit filed by the first respondent in O.S. No. 1026 of 1992 is maintainable in view of the statutory bar contained u/s 14 of the Tamil

Nadu Encroachment Act 1905?(extracted as such)

Heard both sides.

Mr. Raghavachari-the learned counsel for the appellant-Jayaraman (S.A. No. 308 of 2006) would put forth and set forth his arguments which

could pithily and precisely be set out thus:

(i) The authorities concerned having chosen to grant permission for Jayaraman to raise the temple structure, after removal of the then existed

temple, cannot veer round and take a plea quite antithetical to what they committed themselves in black and white.

(ii) Holus-bolus the authorities cannot try to dismantle the said structure and dispossess the plaintiff/Jayaraman.

(iii) The temple has been in that place for over three decades and because of the interference of Thiyagarajan the authorities did choose to resort to

uncertain and unwarranted actions, which should be prevented. Accordingly, the trial Court in O.S. No. 1026 of 1992 passed the judgment and

decree in favour of the plaintiff and the appellate authority also confirmed the same warranting no interference in second appeal.

(iv) As far as O.S. No. 7829 of 1993 (the suit filed by Thiyagarajan) is concerned, when public officials are there to set the law in motion and also

initiate legal action, Thiyagarajan is having no locus standi to institute such a suit O.S. No. 7829 of 1993 and the Courts below were not justified in

ignoring the statutory provisions and simply ordering for demolition by way of granting mandatory injunction.

Accordingly, the learned counsel would pray for the dismissal of the S.A. No. 521 of 2006 filed by Thiyagarajan and for allowing the S.A. No.

308 of 2006 filed by Jeyaraman.

Whereas the learned advocate for Thiyagarajan and the Government Advocate would argue in support of demolishing the structure.

The aforesaid substantial questions are taken together for discussion as they are interwoven and interlinked interconnected and entwined with

one another:

The whole kit and caboodle of the facts and figures as stood transpired from the records in both the matters would unambiguously and

unequivocally highlight and spotlight the fact that the said Jayaraman is not claiming any exclusive title over the suit property, however he would

project and portray that with the permission of the Government he raised such structure, the temple has been in existence for a pretty long time; it is

not a source of nuisance to any one and in such a case, the authorities at the instigation of Thiyagarajan were not justified in issuing any notice or

interfering with his possession.

Whereas, the learned Government Advocate on the defendants side as well as Mr. Sanjay-the learned counsel for Thiyagarajan would try to

project the case as though the said Jayaraman encroached into the Government land and raised such construction; that was why FCR was levied

from him; as per his own admission he cannot claim any permanent right over the suit property and the Government authorities are having the right

to remove the structure, in the interest of public good and do the needful.

The learned Government advocate as well as Mr. Sanjay the learned counsel for Thiyagarajan would in unison submit that Section 14 of the

Land Encroachment Act, which is extracted hereunder for ready reference

Section 14. Bar of jurisdiction of Courts --Notwithstanding anything contained in any law, for the time being in force, no order passed or

proceeding taken by any officer of authority or the State Government under this Act, shall be called in question in any Court, in any suit or

application and no injunction shall be granted by any Court in respect of any action taken or to be taken by such officer or authority or the State

Government in pursuance of any powers. So conferred by or under this Act.

Construction of references -- In the application of any rule, by-law, regulation, notification, form or order made or issued under the Principal Act,

any reference to the Board of Revenue, shall, unless the context otherwise requires, be deemed to be a reference to the Commissioner of Land

Administration.

is squarely applicable and if at all Jayaraman had any right he ought to have approached the authority concerned and obtained necessary orders,

despite that if he is aggrieved by the order of the authority, he should prefer appeal u/s 10 and thereafter if he so thinks that justice has not been

rendered to him, he should invoke Section 10A of the Tamil Nadu Land Encroachment Act, by filing revision. Without resorting to such inbuilt

safe-guards in the Tamil Nadu Land Encroachment Act, the said Jayaraman straight away approached the Court by filing the suit, which was

untenable.

A plain reading of the provisions of the Tamil Nadu Land Encroachment Act would shed light on the point that once a land is proved to be a

Government land certainly Government has got the power to resort to the provisions of the Land Encroachment Act and remove the encroacher.

At this juncture, I recollect the following maxim:

''Jura naturae sunt immutabilia'' -- The laws of nature are unchangeable.

It is always open for the authorities to proceed as per the provisions of the Tamil Nadu Land Encroachment Act, 1905, and it is for Jayaraman

to explain and expound the reasons for his opposition; whereupon the authority concerned is expected to pass suitable orders and if he is

aggrieved, he is at liberty to prefer appeal and also revision as the circumstances might warrant. However, the suit straight away filed by Jayaraman

challenging the said proceedings, in my considered opinion, falls foul of Section 14 of the Land Encroachment Act and no suit would lie.

Here it is a peculiar case wherein title is not in dispute. The cause of action paragraph in O.S. No. 1026 of 1992 (suit filed by Jayaraman) is

extracted hereunder for ready reference:

The cause of action for the suit arose at Madras within the jurisdiction of this Hon''ble Court on 2.2.1985 when the plaintiff was put in

possession of the land, on 22.8.1988 when the defendants levied FCR for the land by proceedings, on various dates, the plaintiff had paid rent for

the land, on 31.3.1986 when the defendants issued no objection certificate; on 10.1.1992 when the defendants threatened to disturb the

possession and subsequently.

(extracted as such)

A plain reading of the above cause of action paragraph would exemplify and demonstrate that it is not Jayaraman''s case that the property is his

absolute property, over which he raised construction and that the Government is trying to dismantle and dispossess him. His case, as set out supra,

is entirely different. The Government having chosen to permit him to occupy and raise construction should not holus-bolus dismantle the structure

and dispossess him. As such, it is crystal clear that Jayaraman was not justified in filing the suit throwing to winds the mandates as contained in

Section 14 of the Tamil Nadu Encroachment Act. Accordingly, the suit (O.S. No. 1026 of 1992) filed by him deserves to be dismissed.

Accordingly, O.S. No. 1026 of 1992 is dismissed and consequently, the appeal A.S. No. 140 of 2001 is dismissed.

Regarding the suit O.S. No. 7829 of 1993 filed by Thiyagarajan is concerned, his prayer itself would contemplate a mandatory injunction

directing the defendants 1 to 3 to remove the unauthorized structure put up by Jayaraman. However, the Court disregarding the provisions of the

Tamil Nadu Land Encroachment Act, as discussed supra, simply decreed the suit, which was incorrect. Ignoring the provisions of Land

Encroachment Act the said Thiyagarajan was not justified in filing the suit and the Court also was not justified in decreeing it in toto. The appellate

authority also in A.S. 362 of 2003 was not justified in confirming such judgment.

The steps taken by Jeyaraman and Thiyagarajan in filing two suits are turned out to be an ill wind that blew no one any good.

A piquant situation could be noticed in this case. On the one hand the suit O.S. No. 7829 of 1993 filed by Thiyagarajan for demolition of the

structure was allowed by the trial Court and confirmed by the appellate Court; whereas the suit O.S. No. 1026 of 1992 filed by Jayaraman for

quashing the proceedings undertaken by the Government and for preventing the authorities from demolishing the structure was allowed by the trial

Court and confirmed by the appellate Court. This sort of piquant situations should be avoided by the parties as well as the Courts below. In fact in

both the suits, the parties were one and the same. In such a case, both the suits should have been clubbed together and a joint trial should have

been conducted and accordingly proceeded with.

I could understand if parties are entirely different in two suits, then two contradictory and divergent judgments arising out of such proceedings.

But this is a case wherein in both the suits, the parties are one and the same, even then two divergent and contradictory judgments were allowed to

emerge and I would deprecate such a practice on the part of the litigants.

In order to disambiguate the ambiguity if any I would like to clarify the position that the provisions of the Tamil Nadu Land Encroachment Act

is applicable in the facts and circumstances of this case and it is for the authorities to issue proper notice and adhering to the principles of natural

justice, as set out supra, and giving an opportunity of hearing to Jayaraman to raise all his pleas and pass orders, which would be subject to appeal

and revision as contemplated u/s 10 and 10A of the Tamil Nadu Land Encroachment Act, respectively.

Accordingly, the substantial questions of law are answered as under:

S.A. No. 308 of 2006:

Substantial Question of law (i) is answered to the effect that the Courts below ought to have dismissed the suit as not maintainable in view of the

statutory bar contained in Section 14 of the Tamil Nadu Encroachment Act, 1905.

Substantial Question of law (ii) is decided to the effect that the previous decree in O.S. No. O.S. No. 6436 of 1989 was only a judgment in

personam, operating as against the defendants therein and not the defendants herein.

S.A. No. 521 of 2006:

Substantial Question of law is decided to the effect that in view of the statutory bar as found engrafted in Section 14 of the Tamil Nadu

Encroachment Act, 1905 the suit filed by the first respondent in O.S. No. 1026 of 1992 is not maintainable.

In the result both the second appeals are dismissed. However, there is no order as to costs.