Sekhar and Others vs D. Malligarjuna Rao and Others

Nagendra Kumar Jain, A.C.J.

This Writ Appeal is filed against the order of the learned single Judge in W.P. No. 17321 of 1999 dated 7.4.2000 (2000 Writ L.R. 683)

One D. Malligarjuna Rao, The writ Petitioner - first Respondent, a member of ''Baracah Road Residents'' Welfare Association"" filed the Writ

Petition alleging that the slums on the eastern side of Baracah Road at Purasawalkam had reduced the width of the road in his area. It is stated that

on earlier occasion Madras Secretariat Co-operative Building Society filed a Writ Petition in W.P. No. 12243 of 1984 for removal of

encroachment on the Baracah Road and by an order of this Court dated 16.9.1994 the Commissioner of Corporation, the Managing Director of

Tamil Nadu Slum Clearance Board and Chennai Metropolitan Development Authority were directed to remove the same. In spite of repeated

representations and provision of alternative sites, 5 huts remain undisturbed. It is submitted because of the act of the slum dwellers and the

adjoining huts therein, the writ Petitioner is not able to have free access to his entire property. It is stated that a planning permission was sought for

bequeathing Open Space Reservation area measuring 1274 Sqft to the Corporation of Chennai for public utility. The writ Petitioner further alleged

that entry to the Petitioner''s property is not possible in view of the alleged encroachment. In such circumstances, he prayed for a direction to direct

the Respondents to accept the Open Space Reservation area ear-marked in the Petitioner''s property and further to direct the Respondents to

remove the encroachment as stated above.

The learned single Judge, on hearing the Learned Counsel on both sides and on consideration, held that the Corporation is bound to maintain

roads and water works properly and efficiently, and that it is an admitted fact that the Corporation cannot accept the Open Space Reservation

area for fencing without removing the encroaching slums and considering such circumstances directed the Commissioner of Police, Chennai to take

steps to remove the encroachments on the eastern side of the Petitioner''s property facing the Baracah Road within four weeks and also directed

the fourth Respondent/Tamil Nadu Slum Clearance Board to assure that the evicted slum dwellers are rehabilitated in Sathiavanimuthu Nagar.

Learned single Judge also directed the Respondents 1 to 3 to process the Petitioner''s application for planning permission on and after removal of

the encroachments. Aggrieved, the Appellants are before us.

Learned Counsel for the Appellants Mr. V. Raghavachari submits that leave was granted on 23.5.2000. Learned Counsel further submits that

on an earlier occasion, the first Respondent filed a Writ Petition in W.P. No. 12243 of 1984 and it was apparent from the counter filed by the

second Respondent earlier, the encroachers were removed and provided with alternative sites. He submitted that no direction could be issued on

the basis of that Writ Petition, that too without hearing the Appellants. It is also submitted that the Petitioner is not entitled to get the Open Space

Reservation on that basis. He also argued that no cause of action arises in favour of the Petitioners, being neighbours, against the encroachers of

the road margin, if any, and without impleading the affected party as party Respondent, the Petitioner is not entitled to the relief sought for. He

relied on the decisions of the Supreme Court in Government of Andhra Pradesh Vs. Thummala Krishna Rao and Another, , M/s. Anamallai Club

Vs. Government of Tamil Nadu and others, , State of Uttar Pradesh and another Vs. M/s. Laxmi Paper Mart and others, and Municipal

Corporation of Brihanmumbai and Another Vs. State Bank of India, .

Mr. Haja Nasirudeen, Learned Counsel for the fifth Respondent, Tamil Nadu Slum Clearance Board, submits that in the earlier Writ Petition as

the disputed area was declared as slum area and in obedience of the directions of this Court in the earlier Writ Petition, 75 alternative huts as

identified, have been provided. It is submitted that the Appellants who are trespassers, cannot take advantage of the observation made in that case

for rehabilitation, and the observation cannot be made available to them. The disputed land/area is not a slum area and the Slum Clearance Board

cannot act outside the ambit of its power as contemplated under the Act as the Appellants - alleged encroachers, do not come within the purview

of the provisions of the Act. Therefore, the observation of the learned single Judge to provide alternative sites to the encroachers is not sustainable

in the eye of law in the facts of this case and the decisions cited are not helpful to the Appellants.

Mr. R. Balakrishnan, Learned Counsel appearing for the Corporation of Chennai, submits that as per the directions made in the earlier Writ

Petition, some of the encroachers were removed and they have been provided with alternative sites. But as the Appellants, who are encroachers,

shortended the width of the road, have no right for alternative sites, and in view of the direction to rehabilitate the slum dwellers, the Corporation

could not evict them. Therefore, the direction of the Court may be set aside to this extent. Moreover, the counsel submits that the Appellants

cannot claim any right contending that they are in possession for a long period, and as they have encroached a public road, mere possession

creates no right for issuance of a notice. He also submitted that the cases cited are not applicable to the facts of the case on hand.

Mr. R. Gandhi, Learned Senior Counsel appearing on behalf of the first Respondent/writ Petitioner submits that though some of the encroachers

were removed, yet the Appellants, like others, are in possession of a public road and due to their encroachment, the width of the road is

shortended and the writ Petitioner is not able to gain access to his premises upon which he is having a right. Learned Counsel submits that some of

the occupants of the huts are employees of the Corporation and they have encroached the property in question. He further submits that the first

Respondent is legally entitled to pass and repass from any portion of his property. He also submitted that in view of the direction that the Tamil

Nadu Slum Clearance Board is to provide alternative sites, the Corporation is facing difficulty to comply with the order of this Court to remove the

encroachers from the public road. In so far as the argument of the Appellants that the writ Petitioner is not entitled to get Open Space Reservation

is concerned, Mr. R. Gandhi submits that for constructing 79 flats in three blocks Open Space Reservation is required in front of the proposed flats

facing the Baracah Road and wanted to bequeath the said property to the Corporation for public utility under a registered gift deed. He further

submits that as a matter of fact, the same is necessary and has been given. But due to the encroachment in O.S.R. area, the writ Petitioner is unable

to fence the area. In any case, the Appellants cannot challenge the finding of the learned single Judge in this respect. So far as the legal position as

enunciated in the decisions cited, the lLearned Counsel has not disputed the same. But, he submits that in the facts of the given case, those

decisions are not helpful to the Appellants. As regards the decision in Government of Andhra Pradesh Vs. Thummala Krishna Rao and Another, ,

Mr. Gandhi submits that, in that case the persons were in unauthorised occupation of the Government land and it was held that the Government has

power to evict summarily. It was also observed that it cannot be restored into a case where conflicting questions of title arose for decision,

whereas in the present case, no dispute regarding title arises, and the Appellants have no legal right and they cannot take advantage of the case. As

regards M/s. Anamallai Club Vs. Government of Tamil Nadu and others, , the Learned Counsel submitted that in that case on an earlier occasion

the Government granted licence in respect of a Government land to the Applicant and thereafter, he was evicted, without giving an opportunity of

hearing and without following the procedures established. Under those circumstances, their Lordships held that the law makes a distinction

between persons in juridical possession and rank trespassers, and under the circumstances Learned Counsel submits that the Appellants cannot

take advantage of that case. Mr. R. Gandhi further submits that the two decisions in Public Interest Litigation viz. pertaining to Hawkers, Squatters

etc. In Public Streets in N.D.M.C. Area (1998 (1) Scale 449) and (1992 (1) Scale 679) (Supra), wherein the Court issued consequential

directiion by appointing Chaturvedi Committee and imposing reasonable restrictions, has nothing to do with the facts of the present case, as they

are pertaining to a scheme.

However, Mr. R. Gandhi submits that Petitioner has no objection, if any scheme is framed by the Corporation of Chennai, which depends upon

the availability of the place and its feasibility as per the facts of that case, and the decision of the Government. But the public road or the street

vests with the State and the members of the public who are the beneficiaries are entitled to use them as road. But persons like Appellants, who

have encroached the public way, and thus chortened the road without there being any legal right or any licence at any point of time, cannot ask for

any scheme and under the circumstances, the direction issued by the learned single Judge to provide alternative accommodation is not sustainable

and liable to be set aside.

We have heard the Learned Counsel for the parties and perused the materials on record. There is no dispute so far as the legal position is

concerned that the affected party should be afforded an opportunity of being heard before taking any decision against them.

The only question before us is, as to whether these Appellants can challenge the order of the learned single Judge on the ground that they are in

possession of the property for the last 40 years and they have not been heard. The Learned Counsel for the Appellants has not been able to show

that the Appellants have any legal right except that they are in possession of the property for some years, that too, without disclosing the exact date

of occupation and its continuation. In our considered opinion, mere possession on the public land will not give any right to the Appellants to get any

indulgence from this Court, when admittedly, the disputed land is a public land. So far as the other point that whether the writ Petitioner has any

right over the property is concerned, the same cannot be challenged at this stage by the Appellants for want of any legal right, as discussed above.

That apart, this being a question of fact, it cannot be gone into at this stage. So far as the other argument of Mr. V. Raghavachari that till the

alternative accommodation is provided to the Appellants they should not be evicted is concerned, the same cannot be accepted on the alleged

facts of the case as discussed above. So far as the argument of the Learned Counsel for the Appellants that the Slum Clearance Board is not

providing any scheme is concerned, in view of the submissions made by the Learned Counsel for the Slum Clearance Board that the disputed area

has not been declared as a slum area, nor public road can be declared as such, and therefore, no scheme can be prepared, and also considering

the fact that nothing has been placed on record to show that the disputed area has been declared as a slum area, this contention cannot be

accepted. Therefore, the direction to the fifth Respondent/ Tamil Nadu Slum Clearance Board to assure that the evicted persons are rehabilitated

cannot be taken in this way viz, till they are provided alternative sites, they should not be evicted. We are of the clear view that this direction will

not debar the Corporation to take necessary action as per the directions of the Court and in accordance with law. So faar as, the formation of a

scheme is concerned, as stated, all these things depend upon the fact, that the area occupied by the persons should be declared as slum area as

per Section-36 of the Act and upon the availability of place identified by the Corporation, and other factors including feasibility. As stated, in the

present case, Appellants are neither licensees nor have they any legal right to occupy the place which is a public road. Therefore, the direction

issued by the learned single Judge is not sustainable to this extent and is liable to be set aside in the facts of the given case.

On overall consideration, we are of the firm view that the wrong doers cannot seek indulgence, nor this Court will issue direction to perpetuate

the illegality in exercising the power under Article 226 of the Constitution. In view of what we have discussed above, the direction issued to

provide alternative site will not come in the way of the Corporation in removing the encroachments and the Corporation is free to remove them.

We find no error or illegality in the order of the learned single Judge, to this extend. With the above observations the Writ Appeal is dismissed. No

costs. Consequently, C.M.P. Nos. 7895, 7896 and 7954 of 2000 are also dismissed. However, the Government is also free to consider the

formation of any scheme to rehabilitate the persons like Appellants, in accordance with rule law.