(Prayer: The Writ Petition is filed under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus, calling for the records relating to the proceeding of 4th respondent in Roc.No.10012/2007/C1, dated 14.08.2007 and quash the same and consequently directing the respondents to issue the patta in favour of the petitioner for the land and building of 6 cents comprised in S.No.540 in Chinnamannur Town, Uthamapalayam Taluk, Theni District, as per G.O.Ms.168 and also as per G.O.Ms.No.854, dated 25.12.2006.)
M. Sathyanarayanan, J.
1. The Petitioner would state that he is a retired driver of Tamil Nadu State Transport Corporation and according to him, his father during his life time enjoyed 20 cents of land with 18 coconut trees in S.No.540 of Chinnamannur. He has also put up a superstructure in the said land, and he was in possession and enjoyment of the said house as well as vacant site, which totally measures 20 cents. Petitioner claims to have succeeded to his estate after the demise of his father. The petitioner claims to be in enjoyment and possession of the property for more than a statutory period and also extending the construction to an extent of three cents totalling the house is in six cents. The petitioner claims to have got the 2C Patta in his name. The petitioner would further claim that the superstructure put on Survey No.540, has also been assessed the House Tax by the Chinnamannur Municipality and he is regularly paying the tax in respect of the said property.
2. The petitioner would further state that Revenue Department has passed G.O.Ms.No.168, dated 27.02.2000 to enable the encroachers, who are in possession of the lands belonged to the Government poramboke, for more than 10 years could get patta, if the land is not meant for usage of any public purpose. The petitioner has immediately applied for getting patta to his land. The petitioner in this regard has repeatedly approached the respondents for issuance of patta, however, it has not been considered. But, subsequently, the Revenue Department has issued on more Government Order in G.O.Ms.No.854, dated 30.12.2006 stating that in respect of the house put up on the Government land patta can be issued by paying the market value. The petitioner had submitted a representation based on the said Government Order also on 05.06.2007 and since it has not been given disposal, he filed W.P.(MD)No.5391 of 2007, praying for issuance of a Writ of Mandamus, directing the official respondents therein to issue patta in his favour in respect of the land building of six cents, comprising S.No.540 in Chinnamannur Town, Uthamapalayam Taluk, Theni District, as per the aforesaid two Government Orders. This Court, vide order dated 20.06.2007, has disposed of the said Writ Petition, directing the concerned authority to dispose of the petitioner's representation, on merits, and in accordance with law, within a stipulated time period.
3. The 4th respondent, vide proceedings, dated 14.08.2007 has rejected the request of the petitioner, on the ground that the said land has been classified as 'Vaikal Poromboke' (Water Course Poramboke) as per the Revenue accounts of Chinnamannur Twon and the encroached two sites of the petitioner are measuring 0.0030.3 Sq.Mt., each, are located in the centre part of the Channel Poramboke, which is the live irrigational water course in Chinnamannur Town and it was also found that the petitioner has also put up a construction recently on the souther region in the said land. The 4th respondent would further state that G.O.Ms.No.854, Revenue 1(2) Department, dated 30.02.2006 has no application to the case on hand for the reason that the encroached sites are required for live irrigation channel (Water Course) for Government purpose and therefore, passed the said impugned order. Challenging the legality of the same, the present writ petition has been filed.
4. The learned counsel appearing for the petitioner would submit that the 4th respondent has not vested with any jurisdiction to pass such an order and though it has been stated in the impugned order that it is classified as Water Course poramboke, it is not so and since the father of the petitioner as well as after his demise, the petitioner continue to remain in possession of the land and also put up a superstructure and also assessed statutory levy. As a matter of right, he is entitled to get a patta and prays for interference.
5. Per contra, Mr.A.K.Baskara Pandian, the learned Special Government Pleader, who accepts notice on behalf of respondents 1 to 5, on instructions, would contend that, as per the revenue records of Chinnamannur Town, the land in S.No.540, which is now occupation of the petitioner, is classified as water course poramboke and therefore, two Government Orders relied on by the petitioner would not come to his aid and further pointed out that the Hon'ble Supreme Court as well as this Court repeatedly found fault upon the revenue authorities for grant of patta in water course and therefore, prays for dismissal of this Writ Petition.
6. This Court has carefully considered the rival submissions and also perused the materials produced before it.
7. Though the petitioner claims that he is a house-less poor, the fact remains that he is a retired driver of the Tamil Nadu State Transport Corporation and he was also given terminal benefits at the time of his retirement. In paragraph No.3 of the affidavit, the petitioner claims that his father, during his life time, had enjoyed 20 cents of land with 18 coconut trees in S.No.540 in Chinnamannur Town, Uthamapalayam Taluk, Theni District, and also put up a superstructure and the land measuring an extent of three cents and after his demise, he succeeded to the said property and he has also put up further construction. It is not clear from paragraph No. 3, as to whether the superstructure put up by the father of the petitioner as well as by the petitioner is also in accordance with the planning permit or not. Thus, this Court is of the view that the father of the petitioner had encroached upon the land in S.No.540 and after his demise, the petitioner has succeeded to the same.
8. The Hon'ble Supreme Court as well as this Court has repeatedly castigated the concerned authority of the Government for regularizing the encroachment on the water body and in fact, by doing so, they are actually encouraging the encroachment on water body.
9. The Full Bench of this Court, in the decision reported in 2015 (6) CTC 369 (T.K.Shanmugam v. State of Tamil Nadu) has considered the plea made by the encroachers of the land for grant of patta is no longer a water body, the Government Order also provides for method by which the house site patta can be granted even in respect of the land which has been classified as water course poramboke. It is relevant to refer the order of this Court, dated 05.08.2015, passed by the First Bench of this Court in W.P.No.1294 of 2015, wherein it has been held as follows:
The public interest litigation seeks patta rights for the persons who have encroached on land, which is undisputedly water course land. The claim of the petitioner is predicated on a long period occupation.
2. The submission of the learned counsel for the petitioner is that the judgment of the Division Bench of this Court in L.Krishnan vs. State of Tamil Nadu (2005 (4) CTC 1) seeking removal of encroachment from water bodies is general in character, as also the observations of the Honourable Supreme Court in different judicial pronouncements. He submits that this aspect has been examined by the Division Bench of this Court in Sivakasi Region Tax Payers Association vs. State of Tamil Nadu, rep., by its Secretary to Government and Others (CDJ 2008 MHC 2127), where it has been observed that in pursuance to the judgment of the Division Bench of this Court in L.Krishnan's case (supra), the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007, came into being. This Act provides for checking encroachment and eviction of encroachment in tanks which are under the control and management of Public Works Department. It is, thus, submitted that such of the tanks which do not fall within the purview of the Act cannot be subjected to requiring protection from encroachment and this, persons like the petitioner cannot be evicted.
3. The question thus arises for consideration is whether the provisions of the said Act in effect in any manner dilutes the wider compass of the observations made in L.Krishnan's case (supra) or any other judgments of the Hon'ble Supreme Court, requiring protection of water bodies.
4. We are of the view that this matter needs to be examined by a Larger Bench of this Court. Papers be prepared. The matter be laid before the Full Bench on 02.09.2015.
5. We appoint Mr.Naveen Kumar Murthi as Amicus to assist us in this matter and a complete set be supplied by the Registry to him.
10. The Full Bench has also taken note of the Government Order in G.O.Ms.No.854, Revenue 1(2) Department, dated 30.02.2006, and it is relevant to extract the following paragraphs:-
36. Thus, the public trust doctrine requires that natural resources such as lakes, ponds etc., are held by the State as a 'trustee' of the public and can be disposed of only in a manner that is consistent with the nature of such a trust.
38. In 2006, the Government issued G.O.Ms.No.854, with a view to alleviate the grievances of people, who are residing in Government lands for more than two decades. The Government thought fit to regularise those encroachments provided that the land is not required by the Government for their use and while doing so, took note of the directions issued by this Court in W.P.No.20186 of 2005, dated 27.06.2005, to protect the water body porombokes. Ultimately, the Government thought fit to grant patta to persons who have encroached into Government land and are residing there for over ten years provided the Government does not require the land in question. The process by which pattas were to be issued, was also stipulated in the said Government order. In terms of para 4(vii), the said Government Order was issued as a one time special scheme for six months from February, 2007. However, the Government extended the scheme upto 31.12.2007. The Hon'ble Chief Minister made a statement that three lakhs house site pattas have to be issued to the poor till 31.03.2008. Based on such statement, the Government issued another order in G.O.Ms.No.498, dated 05.09.2007, issuing certain clarifications and instructions for grant of house site patta and extended the benefit of the earlier one time scheme upto 31.03.2008. By G.O.Ms.No.34, dated 23.01.2008, the Government reduced the period of encroachment to five years as against the earlier requirement of ten years and once again stated that it is a one time special scheme and extended the benefit of the scheme upto 30.09.2010. Subsequently, by another order in G.O.Ms.No.43, dated 29.01.2010, the Government directed regularisation of encroachments over three years as against the requirement of five years. This Government Order was put to challenge by the Sivakasi Region Tax Payer's Association in W.P.No. 18486 of 2010, and the First Bench of this Court by order dated 13.08.2010, directed the said Government Order in G.O.Ms.No.43, shall not be implemented. Thereafter, the Government vide G.O.Ms.No.372, dated 26.08.2015, extended the benefit of the free house site patta scheme from 01.10.2013 to 31.03.2015. From the orders passed by the Government from time to time, it appears that the Government has indirectly promoted and encouraged encroachments and but for the interim order granted by this Court in W.P.No. 18486 of 2010, all that a person who was desirous of obtaining a free house site patta has to encroach into the Government property and show that he has been in occupation of the said land for a period of three years. The Government Order does not make any specific distinction with regard to lands, which have been classified as water bodies. In the preceding paragraphs, we have dealt with the public trust doctrine and what is the role of the Government in promoting such doctrine with particular reference to water bodies. To state the least, the Government Orders with particular reference to regularisation of encroachment in water bodies is a clear breach of the public trust reposed on the Government which is enjoined upon a duty to protect the same.
39. Going back to the decision of the Division Bench in the case of Sivakasi Region Tax Payers Association (supra), the Division Bench in paragraph 27 of the judgment observed that if any particular pond or water channel, artificial or natural had fallen into disuse for a very long period and if persons have encroached upon such lands, whether a direction can be issued for eviction and as to whether such of those persons who have encroached upon such lands have acquired any right under the law relating to limitation or any policy of the State where the Government in its wisdom decides to confer certain right on such persons. In paragraph 31 of the judgment, the Division Bench held that G.O.Ms.No.854, is legal. However, we may note the observations in paragraph 28 of the judgment, the Division Bench observed that it should not be misunderstood for a moment that they are suggesting that all encroachments should be regularised or encroached, but if the State Government takes a conscious decision to regularise certain encroachments, which have continued for a pretty long period after the appropriate authority comes to a conclusion that such land is not required for any public purpose or for the State, the same would be within the jurisdiction of the Government to take a policy decision in the matter. We have our reservations in accepting the reasoning given by the Division Bench in paragraph 28.
40. As noticed above, the Division Bench while adding a word of caution that they are not advocating a general principle to regularise all encroachments or encourage them observed that if the State Government takes a 'conscious decision' to regularise certain encroachments and if the land is not required for any public purpose, the State Government would be well within the jurisdiction to do so. Thus, the question would be as to what is a 'conscious decision' and what would be the manner in which the appropriate authority will come to a conclusion that the land is not required for public purpose. In our view a 'conscious decision' in such cases with particular reference to encroachment in water bodies should be in consonance with the public trust reposed on the Government in respect of such lands (water bodies). The State being a trustee of these natural resources such as tanks, lakes etc., has to necessarily act consistent with the nature of such trust. The vesting of these lands and water bodies with the Government is to benefit the public and any attempt made by the Government to act in a manner derogatory to the object for which the land was vested, has to held to be illegal. The underlying fundamental principle being that such rights are public rights are in a higher pedestal than private rights. We may take a look of the matter from a different perspective. The Government has considered that water bodies, which have fallen into dis-use and have been encroached upon could be declared as not required for any public purpose and the encroachments could be regularised. What the Government has failed to see is the cause as to why these water bodies, lakes, tanks have fallen into dis-use. If this aspect is analysed, it would come to light that in several cases the disuse was man-made and there appears to be a cartel, which systematically works with a view to grab Government property. In such scenario while taking a 'conscious decision', the Government cannot ignore the fiduciary duty of care and responsibility cast upon it and simultaneously analyse as to why such dis-use has occurred. The plethora of decisions on the point elucidate the basic principle of the public trust doctrine when the water bodies vest with the Government, placing the Government in the capacity of a trustee, there is little option except to strictly adhere to the trust and faith reposed and if the Government has failed to protect these water bodies, it amounts to breach of the public trust and in such cases, the duty of the Government is more onerous to restore the land back to its original position and thereby restore the trust reposed on it. Therefore, we are not inclined to accept the proposition that merely because a water body has put to dis-use that by itself would be a good ground to regularise the encroachments.
41. The next aspect would be as to how and in what manner the appropriate authority would come to a conclusion that such land is not required for any public purpose or for the State. It may be a policy decision in this regard, but such policy decision has to satisfy the touch-stone of fairness and reasonableness and satisfy Article 14 of the Constitution of India. Reading of the Government Orders show that the decision taken with regard to a particular land is not required for the Government for any public purpose is largely based on report submitted by the officials of the Revenue Department and invariably the justification is that people have been residing for a long period of time and there has not been any flow of water into tank/lake for several years or the water is unfit for human consumption. In our view, this can hardly be a justification, since the Revenue Authorities have turned a blind eye to encroachments on lands which have, canals/channels through which the water flows into such water bodies. Once again the Government having failed to protect those feeder channels and canals cannot sight that as an excuse to say that there is no flow of water into the tank/lake and therefore, they would be justified in recommending regularisation of the encroachments.
44. The Government Orders starting from 30.12.2006 in G.O.(Ms)No.854, Revenue Department and subsequent Government Orders in G.O.Ms.No.498, 711, 34, 43 and 372 dated 05.09.2007, 30.11.2007, 23.01.2008, 29.01.2010 and 26.08.2014 respectively, with particular reference to encroachments in water bodies are in clear violation of the public trust doctrine. Moreover, Article 51-A of the Constitution of India enjoins that it shall be the duty of every citizen of India, inter alia, to protect and improve the national environment including forests, lakes, rivers, wildlife and to have compassion for living creatures. This Article is not only fundamental in the governance of the country but a duty on the State to apply these principles in making laws and further to be kept in mind in understanding the scope and purport of the fundamental rights guaranteed by the Constitution including Articles 14, 19 and 21 of the Constitution and also the various laws enacted by Parliament and the State Legislatures. But unfortunately, the State, by passing the above said Government Orders, actively encourages encroachers of water bodies, to indulge in illegal and unlawful activities and also bent upon regularizing their possession which has to be deprecated. 11. The Full Bench of this Court, in the above cited Judgment, has observed that the encroachment in water bodies are clear violation of the Public Trust Doctrine. Article 51-A of the Constitution of India also enjoins that it is the duty of every citizen of India, inter alia to protect and improve the National environment, including the forests, lakes, rivers, wildlife and to have compassion for living creatures.
12. In the light of the said Judgment, the reasons assigned by the 4th respondent in the impugned order, cannot be found fault with. Though a faint attempt has been made by the learned counsel appearing for the petitioner by stating that the 4th respondent has not vested with any jurisdiction to do so, the order dated 20.06.2007 made in W.P.No.5391 of 2007, had directed concerned authority to do the exercise as to the request made by the petitioner and accordingly, the 4th respondent, by going through the revenue records of the Chinnamannur Town found that the land in which the father of the petitioner had encroached and put up a construction and after his demise, it is in possession of the petitioner and it is classified as water course poramboke. It is also a settle position of law, Government Order cannot be read like a statute and it is always open to the concerned authority to delegate his power and therefore, the act of the respondents cannot be found fault with. It is also pertinent to point out that apart from the superstructure put up by the father of the petitioner, during his life time, the petitioner has also put up further construction and it is not clear whether he has put up the construction after obtaining necessary permission or not and also in accordance with the sanctioned plan granted, if any.
13. In the light of the above facts and circumstances coupled with the reasons assigned above, this Court is of the view that the petitioner is not entitled to get any relief in this Writ Petition. The reasons assigned in the impugned order cannot be said to be perverse or arbitrary or without application of mind. Therefore, the Writ Petition is dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed.