Prabha Sridevan, J.
The appellant alleged that his L.P.G. Godown was being demolished by the respondents without resorting to due process of law and prayed for a mandamus to restrain them from doing so. The learned single Judge directed the Commissioner, Land Administration to pass appropriate orders regarding the question whether encroachment had been committed by the appellant or by the sixth respondent. So, aggrieved by this order, the present appeal has been filed. It is a matter of fact that in two earlier writ petitions relating to the same issue of encroachment, the authorities had categorically stated there is no encroachment.
2. The litigation has a long history and there have been earlier proceedings before this Court. On 27.12.1989, the Government, by G.O. Ms. No.1632, allotted land measuring 827 sq.mts. in Survey No.2057/2A of Koyambedu Village to the appellant herein. The terms and conditions as well as the cost of the land was not fixed at that point of time. The appellant was informed thatt he orders relating to this will be issued separately. In 1991/1992, when the appellant approached the Chennai Metropolitan Development Authority and the Corporation of Chennai for approval of his building plan, the Corporation sanctioned the plan by proceedings dated 22.6.1992. Though the land allotted by the Government was aboutg 810 sq.mts., the appellant put up the constructions only in an extent of 600 sq.mts. in order to maintain safety distance as per the provisions of the Explosives Act. In the year 1993, Writ Petition No.4496 of 1993 was filed by the predecessor-in-interest of the sixth respondent for a direction to the authorities to prevent encroachment by the appellant on the road and to restore the road. The Corporation of Chennai and the C.M.D.A. were respondents in that writ petition. It was disposed of with certain directions. Subsequently in the year 1998, Writ Petition No.5901 of 1998 was filed alleging that the appellant has encroached upon the road in the layout and for a direction to the authorities to remove such encroachment. The appellant was the sixth respondent in the latter writ petition. The Corporation of Chennai and C.M.D.A. were the other respondents therein. The said writ petition was dismissed on 12.7.2000 by the Division Bench with liberty to the petitioner therein to file a civil suit, if necessary, under Order I, Rule 8 of the Code of Civil Procedure.
3. The case of the appellant is that in the year 2005, the Deputy Tahsildar, Egmore-Nungambakkam Taluk came to their godown alleging encroachment by the appellant. The appellant gave a detailed representation. Notwithstanding the same, on 14.10.2005, it is alleged that officials threatened demolition of the encroachment and therefore, the present writ petition was filed. The parties to the writ petition are, in addition to the various authorities, the sixth respondent, who was the fourth petitioner in W.P. No.5901 of 2008.
4. Counter affidavits have been filed by the second, fourth and sixth respondents. According to the respondents, though the allotment was made, the localisation of the property was not done and the appellant himself had occupied the space and it is thus that there was encroachment.
5. When the matter came up for hearing before this Court, it was pointed out by the learned senior counsel Mr. G. Rajagopal appearing for the appellant that prevaricating stands have been taken by the officials of the respondents regarding the fact of encroachment. Therefore, we passed an order on 27.7.2009 directing the officials to make a field measurement study of the entire Kumaran Nagar with the assistance of a Field Surveyor. The said order reads as follows :-
"It is a matter of dismay that all the authorities, who may be involved in the dispute of this nature, take varying stands regarding the same matter and the picture that is presented to the Court is not a clear one and we are unable to see whose records or files must be accepted. We request the learned Advocate General to take it up with the Member Secretary, Chennai Metropolitan Development Authority, the Collector, Chennai and the Commissioner, Chennai City Municipal Corporation to act in co-ordination so that such lapses do not occur and this co-ordination should be undertaken even with regard to the matters pending where there are disputes and must be positively done in future. This will also ensure that there are no irregular construction."
Thereafter, on 14.9.2009, after perusing the interim report filed by the Tahsildar, Egmore-Nungambakkam Taluk, taking note of his observations that the assistance of the Directorate of Urban Land Tax and Urban Land Ceiling was required in the matter, we issued the following directions :-
"The Department of Urban Land Tax and Urban Land Ceiling, Chepauk, Chennai-5 shall extend co-operation with specific attention to Item No.1 listed above.
To ensure the prompt assistance, Registry is directed to send a copy of this order to the following officers
1. Commissioner for Urban Land Tax and Urban Land Ceiling, Chepauk, Chennai-600 005 and
2. The Assistant Commissioner, Urban Land Tax, Poonamallee High Road, Aminjikarai, Chennai-600 029."
6. Originally, we had indicated that once the report is filed indicating the extent of encroachment, we would pass orders in accordance with the report that is filed. Now, the report and the map has been filed and the learned senior counsel appearing for the appellant has made his submissions on the report, as to why it cannot be accepted. On the other hand, learned senior counsel appearing for the sixth respondent Mr. N.R. Chandran would submit that it is hardly relevant that the officers had taken prevaricating stands earlier. What is relevant and what is the only factor which should be taken into account is the present plan and report which shows that it is the appellant who is guilty of encroachment. According to the learned senior counsel, the Act requires the removal of encroachment and referred to a Full Bench judgment in T. Ramaraju vs. The State of Tamil Nadu, 2005 (2) C.T.C. 741. Learned senior counsel also submitted that without doubt, earlier the Division Bench had given liberty to file a civil suit, but it is not necessary to do so if in fact there is encroachment of the road and the public has the right to move a public interest litigation.
7. We will now examine all the records. On 27.12.1989, as already stated, the appellant was allotted 827 sq.mts. of land in Survey No.2057/2A of Koyambedu Village by the Government. This was done on the basis of the recommendation of the Allotment Committee constituted by the Government. The Government accepted the recommendation of the Committee and directed that the appellant shall be "permitted to enter upon the land" abiding by the terms and conditions which will be communicated separately. On 2.6.1992, the Tahsildar, Egmore-Nungambakkam Taluk addressed a letter to the Assistant Executive Engineer (South), Corporation of Madras to the effect that the appellant had requested the office to issue a No Objection Certificate for issuing a building plan and in this letter, reference is made to the above Government Order and it is stated, "Since the Government have already permitted M/s. Gas Links to enter upon the land for immediate use, there is no objection for issuing the building plan in favour of M/s. Gas Links". The xerox copy of this letter is produced along with the xerox copy of the layout plan at that time, which showed that it was called the 'Chinmaya Nagar Stage Second Extension'. By this letter, the Village Administrative Officer was directed to make necessary pencil entries in the Adangal regarding this. This document is filed as Additional Typed Set 'C'.
8. As counter to W.P. No.5901 of 1998, the Senior Planner, C.M.D.A., who was the third respondent therein, has stated that 827 sq.mts. of land in the aforesaid survey number was allotted to the appellant and has referred to the Government Order mentioned above. It is also stated that entry permission was granted by the Deputy Secretary by his Letter No.16864/89/3-2 dated 6.10.1989. The Fire Service Department had issued No Objection Certificate in Letter No.11823/E1/90 dated 17.8.1990 for storing 8000 LPG Cylinders. The appellant applied for planning permission. By the letter in L.N.D.C. No.D5/PPA.5674/90 dated 4.2.1991, the Corporation of Chennai informed the C.M.D.A. that the original sanctioned layout differed from the copy of layout produced by the appellant and that some error had taken place in development of the Kumaran Nagar Layout. It was also stated that the Commissioner, Corporation of Chennai had informed that on an inspection, it was found that the continuation of the existing road at Kumaran Nagar fell within the land allotted to the appellant. The counter also referred to the letter dated 20.2.1992 by which the appellant was permitted to enter upon the land allotted to him.
9. In the counter affidavit filed in W.P. No.5901 of 1998, the Chennai Metropolitan Development Authority stated that pursuant to the orders of this Court, a joint inspection was made twice by the officials of the Corporation of Chennai, once on 24.9.1999 and on another occasion on 17.4.2000 and they found that "prima facie, there was no encroachment" and therefore, the C.M.D.A. prayed that the writ petition filed against the appellant should be dismissed.
10. The Commissioner, Corporation of Chennai also filed a counter in W.P. No.5901 of 1998, it is stated therein that this property formed part of the approved layout in Kumaran Nagar. According to the counter, the appellant had paid the development charges which is mandatory and a road was laid upto the house of the first petitioner therein and all other amenities were also provided. It is repeated that this sixth respondent was the fourth petitioner therein. In this counter, it is also stated that the land in question connected the Kumaran Nagar Layout and Chinmaya Nagar Stage Second Extension in Survey No.205/2. The counter also refers to the sanctioned plan for the construction of the godown and in specific, it states, "The land was duly surveyed by the Revenue officials of the Egmore-Nungambakkam Taluk Office. As per the sanctioned plan, there is no road in between Chinmaya Nagar Stage Second Extension and Kumaran Nagar Layout." This counter further refers to W.P. No.4496 of 1993 and to the joint inspection conducted on 24.9.1999. It is seen that though the Kumaran Nagar Layout provided only for 100 plots, 116 plots had been put up. The counter also shows that the petitioner in W.P. No.4496 of 1993 did not respond to the communication of the Corporation of Chennai with regard to this violation. The petitioner in W.P. No.4496 of 1993 is the predecessor-in-interest of the sixth respondent herein. It is categorically stated that, "the construction of the godown was duly sanctioned by the C.M.D.A. and the Corporation of Chennai on the lease land issued by the authorities under the Urban Land Ceiling Act. The said land was not an encroachment." It is also stated that when W.P. No.4496 of 1993 was filed, an opportunity was given to those persons attacking the appellant to prove that the land in question is an encroachment, but without doing that, a second writ petition, viz. W.P. No.5901 of 1998 was filed. Whatever the facts may be, at that stage, the authorities concerned were clearly of the opinion and had stated that there was no encroachment by the appellant.
11. In the year 2005, the appellant wrote to the Tahsildar, Egmore-Nungambakkam Taluk that though in the original site condition, 827 sq.mts. were allotted, that was not available; instead, the opposite side plots have encroached in front of his land. The appellant had enclosed copies of all the plans, sketches and documents and had complained that the encroachers were on and off troubling the appellant with their complaints that the road was not allowed to be extended, while they were the ones who were squatting on the road by comfortably raising compound walls and were accusing the appellant of having encroached the road, which is highly incorrect, false and frivolous. It is then that the present writ petition came to be filed.
12. In the present writ petition, the fourth respondent, who is the Commissioner of the Corporation of Chennai has stated that the appellant has encroached the road portion. There is no reference to the earlier litigation. Directions had been given to the Taluk Tahsildar to take suitable action to remove the encroachment. The second second respondent, who is the Collector of Chennai, had stated that though the Government permitted the appellant to enter upon the land in question, the appellant himself had entered upon the land without actually knowing the exact location of the site allotted to him. It was stated that no formal handing over possession of the land was made to the appellant and the appellant did not bother to obtain possession of the land through transfer of charge certificate together with a location sketch showing the actual area allotted to him as per the said Government Order. It is in these circumstances that the above directions were issued for surveying the location.
13. Now, a plan has been filed according to which the appellant has encroached upon the road and accompanying the map, a report has also been filed. According to this report, the appellant was permitted to enter upon the land by G.O. Ms. No.1632. Though it should be a report on what was surveyed, actually the officials have incorporated some parts of the counter as well. It is stated in the report as follows :-
"13. In the year 1992, the Chennai Metropolitan Development Authority has approved the building plan for S.No.205/2A/2 in Block No.67 of Koyambedu Village occupied by M/s. Gas Links without any plot No. and road portion or approach road for entrance and shown 20 feet length as utility area of applicant by showing the northern side house as encroached area as if building plan was sanctioned already in the year 2985 itself by the same Chennai Metropolitan Development Authority. The petitioner is using the utility area shown in the plan as road in the initial stage as the Kumaran Nagar Layout was improved by constructions afterwards only. Subsequently, after formation of houses, the road was shrunked into 40 feet to 33 feet towards western side (i.e., upto allottees land) and allottee has encroached the road portion by 196 sq.mt. (i.e., 2109 sq.ft.) leaving 7 feet as road in the northern side. As per the FMB sketch and old records received from the ULT and ULC Department are also shown that there is a road towards northern side of Old S.No.205 (sketch enclosed) and southern side of Old S.No.118 of the Koyambedu Village, i.e., in the year 1985.
14. As per the state on ground position and possession and with available records, during Town Survey in the year 1987, it was noticed that an extent of 196 sq.mt. or 2109 sq.ft. was encroached by M/s. Gas Links. At the time of Town Survey, the encroached portion by M/s. Gas Links has been assigned a separate T.S. No.123 comprised in Bk. No.67 which is classified as Sarcar Poramboke under the usage of Road maintained by Corporation of Chennai and the Corporation of Chennai named the street as I Main Road, Kumaran Nagar and remaining portions in S.No.205 treated as Ryotwari Manai. As such, the street named as Kumaran Nagar I Main Road is maintained by the Corporation of Chennai and the ownership of the land in T.S. No.123 vests with Corporation of Chennai according to the notified survey record of Survey Department and this office records which is a basic record in regard to the land maintenance by Revenue Department."
In the final paragraph, it is stated as follows :-
"... it is submitted that M/s. Gas Links has encroached a portion of 196 sq.mt. (i.e., 2109 sq.ft.) in S.No.123 which is classified as Sarkar Poramboke (Road) as the land in question, i.e., 827 sq.mt. in Old Survey No.205/2 of Kumaran Nagar village was not earmarked and handed over properly by the department concerned ...".
Therefore, according to the report, the encroachment is complete.
14. We have gone through the report, perused the photographs and heard the submissions on both sides. The map filed by the authorities indicates as if the road, which goes to the north of the building belonging to the appellant which narrows at the point where the appellant's compound wall and the house of the sixth respondent are the closest to each other, continues thereafter. That is what the map indicates. But the photographs show that actually there is nothing to the west of the appellant's compound wall and in fact, the photographs produced show that there is a wall in the narrow strip of land between the appellant's property and the sixth respondent's property and there are potted plants placed on top of the wall. The learned Special Government Pleader submits that actually there is no road to the west of this point and it is all occupied. Perhaps, originally it was intended to be a road. But when we asked the officials to help us by drawing up a map, we expect them to state what is actually existing in reality, regardless of the fact whether it was originally a road or not. In fact, we find that in the counter filed by the Commissioner, Corporation of Chennai in the earlier litigation, he had averred that the road was laid upto the house of the petitioner therein, to which group the sixth respondent belongs. Perhaps, when the allotment was originally made, the appellant herein, on receipt of the letter permitting him to enter upon the land, entered upon what he believed to be his survey number. But thereafter, many years have passed and there are several letters and communications with the authorities where they confirmed his possession. Not only that, no objection is given to his application for a sanctioned plan.
15. We also noted with dismay the total lack of co-ordination between the three authorities who have a role to play in the development of the city. This lack of co-ordination has resulted in the urban chaos that we see around us. We cannot ignore the decision of the Full Bench of the Madurai Bench of the Madras High Court in 2005 (2) C.T.C. 741 (supra) which deals with road encroachments and it is not possible for us to condone any encroachment. There are many cases where encroachments have been a long standing one and suddenly the authorities wake up to the encroachment and move in with a high handed approach. But in this case, there has been continuous litigation almost from the time the appellant was allotted the land and all along, the stand of the authorities before this Court was that there was no encroachment. And now, a report is filed annexing a map which gives the impression that a road proceeds from east to west beyond the appellant's property, which is not correct. If we proceed to explore how the appellant in fact occupied and took possession of the land, we would be entering into areas which require recording of evidence. When we requested the authorities concerned to take a survey of the area, we thought it would clarify matters. Instead, we are unable to accept the map which is not factually correct and it is totally contrary to the consistent stand of the authorities in the earlier litigation. It is the same issue which had been raised in the earlier litigation and it was withdrawn only with liberty to file a civil suit.
16. As a legal proposition, the learned senior counsel for the appellant may be right in contending that when there is an encroachment on a public road, it is not necessary for the appellant to file a suit. But this case is fraught with difficulties. There are disputed questions on every aspect, including something as simple as whether there is a road which proceeds from east to west beyond the appellant's property. The appellant, in fact, is occupying less land than what has been allotted to him. That is admitted even by the authorities themselves. Though he was allotted 827 sq.mts. of land, he is now occupying only 600 sq.mts. 200 sq.mts. of land was left by him beyond his compound gate towards the utility land and we do not know in whose possession it is now. If there is crowding of constructions near the appellant's building, it is not the appellant's own fault, because admittedly where there should be 100 plots, now 116 plots have come up. The haphazard urban development, the blatant violation by all parties concerned of the building regulations, the erratic approach to zoning have all resulted in the mess that is now called Chennai. We even explored the possibility of the appellant shrinking his compound wall closer to the godown so that the width of the road may be increased. But the learned senior counsel submits that the statutory requirements with regard to storing of explosive materials will not permit that.
17. In 2005 (2) C.T.C. 741 (supra), a Full Bench of the Madurai Bench of the Madras High Court took up the order of reference by virtue of the observation made in 2005 (2) C.T.C. 249 [The Madurai Maanagar Old Motor Spare Parts Dealers' Association vs. Madurai City Municipal Corporation] and the guidelines laid down for removal of encroachments are set out in paragraph 38 of the said judgment and it reads as follows :-
"(1) If the encroachment is on road or road margins, vested in Municipalities, the removal if any is to be effected only after following the procedure contemplated in Chapter IX of the Tamil Nadu District Municipalities Act and more particularly the provisions contained in Section 182 and Section 183(6). Before taking action under Section 182 of the District Municipalities Act, notice in writing giving atleast two weeks time should be served and, if the person avoids to receive the notice, such notice can be effect by affixture. However, notice by any other means, such as through public announcement or beating of drums or by general notice in newspapers, may not be sufficient.
(2) The decision in W.P. No.689 of 2005 cannot be construed as having abrogated the statutory power of the Council under Sections 182 and 183. The Council may grant licence to put up verandas, balconies, sunshades, weather-frames and the like. Similarly, the Council has power to lease road sides and street margins for occupation on such terms and conditions and for such period as the Council may fix. However, such power under Sections 183(1) and 183(3) should be exercised keeping in view the provisions contained in Section 183(4) and no such licence under Section 183(1) or lease under Section 183(3) should be granted if the projection, construction or occupation is likely to be injuries to health or cause public inconvenience or otherwise materially interfere with the use of the road as such. Any projection or construction put up under Section 183(1) or (2) can be removed on expiry of the licence or the lease, as the case may be. Compensation is required to be paid in matters coming within the scope of 182(2).
(3) Payment of property tax, provisions of water connection or electricity by themselves cannot be construed as conferring any independent right, if the encroachment is otherwise unauthorised.
(4) The above directions and observations are also applicable to encroachment in respect of road or road margins coming within the jurisdiction of Municipal Corporations or Town and Village Panchayats, in which event, necessary action can be taken by the concerned authorities by following the relevant provisions of law applicable to such Corporations or Panchayats.
(5) To the extent the National Highways Act, 1956 and the Control of National Highways (Land and Traffic) Act, 2002 are applicable, action can be taken only by following the procedure prescribed under such statutes. Similarly, the provisions of the Tamil Nadu Highways Act, 2001, are applicable to the Roads coming under the State Act.
(6) If the encroachment is on the land belonging to the Local Authorities, but such land is not part of the road or road margin or roadside land, eviction can be effected by following the procedure contemplated in law, namely, either by taking recourse to the Tamil Nadu Public Premises (Eviction or Unauthorised Occupants) Act, 1975 or any other law applicable or otherwise by taking recourse to Civil Courts and not by use of unilateral force.
(7) So far as the encroachment on the land belonging to the Government is concerned, action for eviction if any can be taken only by the appropriate authority and by following the procedure contemplated under the Tamil Nadu Land Encroachment Act, 1905.
(8) The directions issued in W.P. No.689 of 2005 are applicable to removal of encroachments on roads and road margins and not other lands belonging to the Local Authorities or the State. The said decision should not be construed as giving a licence to the Local Authorities to cancel the existing license or lease or to remove the encroachments without following the procedure contemplated under the law.
(9) If any Civil Courts decree or interim order is holding the field, obviously, no action can be taken, unless and until such a decree or interim order is set aside or vacated in a manner known to law."
18. If there is a road encroachment, without doubt, it has to be removed. In fact, the reason why we gave directions for making a field measurement study of the entire Kumaran Nagar Layout was because we were informed that the road proceeding from east to west from Ayyappa Nagar Approved Layout through Kumaran Nagar continued beyond the property occupied by the appellant, reaching Nerkundram Road, but as stated by us already, the photographs shown and the factual statement by the learned Special Government Pleader is that beyond the appellant's property, the road does not extend and we have already described that there is only a wall running north to south with even potted plants on top of it, which means there is no through access from east to west, i.e., there is no thoroughfare. If we had known this earlier, we would not have required the field measurement study to be undertaken in view of the repeated categoric statements by the authorities that there was no encroachment. But, however, this has been done and for the reason that the map does not show that the road ends at the spot where the appellant's property is situated, we are not placing much reliance on the map for the purpose of issuing the directions in this writ appeal :
(a) The guidelines in the Full Bench judgment referred to above are clear. But the authorities cannot proceed arbitrarily against the appellant alleging that it is encroachment in view of the stand taken earlier.
(b) In W.P. No.4496 of 1993, the stand of the respondents was that a joint inspection was conducted on 24.9.1999 and the construction of the godown was duly sanctioned by CMDA on the lease land issued by the authorities under the Urban Land Ceiling Act and the said land was not an encroachment. Therefore, their stand in 1993 is that the construction is on the leased land. At that time, an opportunity was given to the predecessors-in-interest of the sixth respondent to prove that the land in question is an encroachment. They did not do so. Therefore, strictly speaking, the matter should have rested there.
(c) But the matter does not rest there. They filed W.P. No.5901 of 1998. In this writ petition again, the counter affidavit filed refers to the joint inspection dated 24.9.1999 and again on 17.4.2000 and it was found prima facie that there was no encroachment. The Commissioner, Corporation of Chennai also stated that the appellant had paid the development charges and crucially it is stated in the counter filed in W.P. No.5901 of 1998 that the road was laid upto the house of the opposing parties. In view of the disputed questions, the Division Bench rightly directed the parties to file a civil suit. But still, the matter does not rest there.
(d) It is clear that it is only at the instance of the sixth respondent that action was initiated by the other respondents against the appellant. In fact, the learned senior counsel for the sixth respondent, while making his submissions that when there is an encroachment on public road, it is not necessary for the aggrieved party to file a civil suit, he can move a public interest litigation, tacitly acknowledged that this litigation had also arisen at their instance. It is now for the first time that the authorities say that there is an encroachment.
(e) Though it is now stated that the appellant's property is on an encroached land, it is not denied and in fact it is admitted that in Kumaran Nagar, where there should be 100 plots, 116 plots have been put up. The authorities have not taken any action against this arbitrary increase of the plots in question.
(f) We have also already expressed our displeasure that the authorities concerned do not have a co-ordinated approach. We were informed by the learned Advocate General that he has, in fact, discussed this matter with the Member Secretary, CMDA, the District Collector, Chennai and the Commissioner, Corporation of Chennai to ensure that such lapses do not recur. We appreciate this approach.
(g) It is admitted that there are constructions to the west of the compound wall of the appellant. So, the present map which gives the impression that the road narrows near the appellant's property and proceeds further is incorrect and is, therefore, rejected.
(h) Even though the jurisdiction under
Article 226 of the Constitution is not confined by the fetters of the Civil Procedure Code, yet there must be some finality to litigation. The appellant has been asked to show that there is no encroachment not once, but twice, but thrice. Twice he was lucky, but he was not lucky the third time. The same issues cannot be raked up over and over again. This is a matter of public policy.
19. For all these reasons, the writ appeal stands disposed of. We wanted to impose heavy costs on the sixth respondent for abusing the process of law, and on the authorities for the conflicting stands that they have taken. But we do not do so, only because we wish that the matter should stop here. The sixth respondent has attempted again and again to rake up the same issue. It is condemned. The authorities should be conscious that what they file into Court should reflect the true state of affairs and should be based on records. Then the averments in the pleadings will not vary. Courts rely on the statements of the authorities and the records, especially in exercise of the jurisdiction under
Article 226 of the Constitution. We impose no costs. Consequently, the connected miscellaneous petition is dismissed.