Xs Real Properties Pvt. Ltd vs Anaithu Vivasaya Sagupadi

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 23.01.2019

PRONOUNCED ON :14.02.2019

CORAM

THE HON'BLE Mr. JUSTICE M.VENUGOPAL And THE HON'BLE Mr. JUSTICE R.PONGIAPPAN

W.P.No.4864 of 2016 and W.M.P.Nos.20278 & 24152 of 2017

1.XS Real Properties Pvt. Ltd., No.12 South Mada Street, Srinagar Colony, Saidapet, Chennai – 600 015

2.M/s.Jacaranda Properties Pvt. Ltd., No.12 South Mada Street, Srinagar Colony, Saidapet, Chennai 600 015. .. Petitioners

Vs.

1.Anaithu Vivasaya Sagupadi Payirkal Urpath Vivasayigal Sangam Reg. No.190/2009, No.5, Vaithiyar Street, Periyakanchipuram Kanchipuram District, Rep. By General Secretary

2.State of Tamil Nadu, Rep. By its Secretary to Government, Public Works Department, Fort St. George, Chennai – 600 009.

3.The District Collector, District Collector's Office, http://www.judis.nic.in Kancheepuram, Kancheepuram District. 2

4.The Revenue Divisional Officer, Kancheepuram, Kancheepuram District.

5.The Tahsildar, Kancheepuram Taluk Office, Kancheepuram, Kancheepuram District.

6.The Director, Directorate of Town and Country Planning No.807, Anna Salai, Chennai – 600 002.

7.The Member Secretary, Mamallapuram Local Planning Authority, Five Radhas Commercial Complex, Mamallapuram – 603 104.

8.V.Murugan

9.R.Anbuvelrajan [R9 given up vide order dated 11.01.2018]

10.The Secretary to Government, Housing and Urban Development Department, Chennai – 9. [R10 – Suo motu impleaded as per order dated 23.10.2017] .. Respondents

Prayer : Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorari calling for the records quashing the impugned order dated 02.09.2015 bearing Na.Ka.No.14539/ 2015/Aa1 issued by the 3rd Respondent.

For Petitioner : M/s.Shivakumar and Suresh

For 1st Respondent : Mr.P.Selvaraj For Mr.Devadasan & Sagar For RR 2 to 7 : Mr.S.N.Parthasarathy Government Advocate For 8th Respondent : Mr.D.Jayasingh

For 10th Respondent : Mr.V.Anandhamurthy

http://www.judis.nic.in 3

ORDER

M.VENUGOPAL, J.

The Petitioners have filed the present Writ Petition seeking to

call for the records in regard to the impugned order dated

02.09.2015 bearing Na.Ka.No.14539/2015/Aa1 issued by the 3rd

Respondent and to quash the same.

2.Writ Facts:

2.1.The 1st Petitioner is a leading Developer in the Chennai

Real Estate Market and has carved out a niche for itself in the

construction industry by developing several award winning projects

in Chennai. As a matter of fact, the 2nd Petitioner is carrying on the

business of constructing Residential Apartments, Villas, Row-

Houses, Cottages, etc. and had obtained 'Foreign Direct Investment'

for developing the Project named as “Catalunya City” in Siruseri

Village. The 2nd Petitioner is the 1st Petitioner's Group Company

which engaged the 1st Petitioner as its 'Marketing Agent' for

promoting the aforesaid using the brands of the 1st Petitioner. The

2nd Petitioner is currently developing the first phase of the Project

named as 'Barcelona' after obtaining the required statutory

http://www.judis.nic.in'Approvals' and 'Permissions' for 'Construction'. 4

2.2.The 2nd Petitioner, after scouting around for immovable

properties, had identified Lands at Siruseri for development. The 9th

Respondent (later given up), who was the 'Real Estate Aggregator'

along with 8th Respondent had approached the Petitioners and

stated that he would aggregate Lands as may found suitable by

them. It was also represented that the 8th Respondent being the

Thalayari of Siruseri Village, owned Lands along with his relatives, in

Survey Nos.148/1, 148/2, 149/2A, 150/2 and 181/3 in Siruseri,

which would also be sold to the 2nd Petitioner. The 8th Respondent

[Real Estate Broker/Land Aggregator] had procured properties for

an adjacent project developed by another prominent Developer for

their project at Siruseri. Further, based on the representations of

the 8th and 9th Respondents that they would facilitate the

procurement and purchase of immovable properties, and based on

internal studies, the proposal was found acceptable, by the

Petitioners.

2.3.The 2nd Petitioner had purchased the Lands of about 14

acres in S.Nos.147, 148, 149, 166, 169, 170, 1717, 172, 173, 177,

178, 179, 181 and 182 and their sub-divisions among other Land/s

in Siruseri village, Thiruporur Taluk, Kancheepuram District, being

the Lands identified and aggregated by the 9th Respondent. It was http://www.judis.nic.in

assured that the Title to the Lands were clear. The Lands were 5

adjacent to the SIPCOT Lands. Various IT companies such as TCS,

Wipro, etc. had built huge offices nearby. The above area was

developed after the Lands were classified as 'Urbanisable Use Zone'.

The Government of Tamil Nadu had published the Mamallapuram

Master Plan in the year 2004 as per G.O.(Ms.) 287 dated

08.07.2004 and as per the said Plan, the entire Siruseri Village

barring few survey numbers was declared as 'Nil'. In 2000, the

Government had declared that there is no agricultural activity in the

entire Siruseri Village and that many International and National

Software Companies had built huge office structures in that area.

Moreover, many leading Real Estate Developers ware also building

various residential complexes nearby fuelled by the growth and

requirement for IT Buildings.

2.4.The Land aggregators had assured that there was no

Agriculture Lands, in the Lands identified by the Petitioners. All the

Lands were barren Lands and the surrounding Lands were also

barren. The 8th Respondent agreed to sell his Lands and the Lands

of his relatives to the 2nd Petitioner, in addition to other Lands

identified by the 9th Respondent. On 17.07.2013, the Government of

Tamil Nadu (Housing and Urban Development) published a

G.O.Ms.No.28 for classifying the Lands as “Mixed Residential Zone” http://www.judis.nic.in

from “Urbanisable Use Zone”. After obtaining Sale Deeds in its 6

favour, the 2nd Petitioner had also obtained 'Patta' in respect of the

aforesaid survey numbers.

2.5.After the rates for purchase of Lands were finalised and

the 2nd Petitioner had proceeded to obtain 'Demand Drafts' for the

Sale Consideration as well as the stamp duty and registration fees,

from its bankers State Bank of India, CCPC, Chennai. The Petitioner

and its group company have a strict policy not to deal with cash, in

order to bring respectability and transparency to the realty

segment. The 8th Respondent, at the last minute, made a demand

for an increase in Sale Consideration, but the transaction had not

fructified because of dispute.

2.6.The 5th Respondent/Tahsildar, Kancheepuram Taluk Office

issued a 'No Objection Certificate' on 23.04.2014 confirming that

the Lands were not Government Poramboke Lands, there were no

pending Land acquisition proceedings and there were no ceiling

proceedings. Also, it was certified that the 2nd Petitioner's Lands

were not prone to flooding. Apart from that, it was certified that it

was part of the local planning authority. Indeed, the 2nd Petitioner

had also executed registered Gift Deeds dated 09.02.2015

[Document No.1865 and 1866 of 2015] in favour of the Siruseri http://www.judis.nic.in

Panchayat as per the Development Control Rules towards the public 7

road and open space reservation area. The 7th Respondent had

granted the Site Approval and Planning Permit Approval and on

14.03.2015 the Building Plan Approval was obtained from the

Siruseri Panchayat Board. The 2nd Petitioner commenced its

development activities only after payment of Statutory Fees and

securing statutory 'Approvals'.

2.7.Because of the numerous problems created by the 8th

Respondent either directly or through his relatives etc., the 2nd

Petitioner was constrained to lodge a complaint before the

Jurisdictional Inspector of Police seeking to take necessary action.

Further, he laid a Civil Suit in O.S.No.579 of 2014 on the file of the

Learned District Munsif, Chengalpet for injunction restraining the 1st

Petitioner from blocking the 'Water Canal' showed in the related

map and sketch filed by him. The 1st Petitioner was falsely

implicated by the 8th Respondent knowing full well that the 2nd

Petitioner is the owner of the Lands. The 8th Respondent through

one Mrs.K.Rani and E.PaLandiammal filed W.P.No.16969 and 16970

of 2015 in February, 2015 before this Court praying for

similar/identical reliefs and the said Writ Petitions are pending.

Further, the 8th Respondent, through the 1st Respondent/

Agriculturists/Sangam filed W.P.No.13495 of 2015 as Public Interest http://www.judis.nic.in

Litigation and this Court had directed the 'Representation' to be 8

disposed of within a a period of two months. There is no Canal

(Vaikal) carrying water from Periya Eri and Sitteri. There cannot be

a 'Canal' (Vaikal) as there is no water in the 'Periya Eri' and 'Sitteri'.

Even if there is water due to stagnation, it cannot flow through the

alleged Canal (Vaikal).

3.Gist of Counter of 1st Respondent/Sangam:

3.1. The 1st Respondent/Sangam filed W.P.No.13495 of 2015

to protect the riparian right of the farmers and the right of the

farmers' and villagers over channels and pathways duly recognised

by the Government and is duly reflected in the Village Map. The 3 rd

Respondent/District Collector, Kancheepuram passed an order on

02.09.2015 recognizing the rights of villagers and farmers in

respect of riparian rights resting the Channels and Pathways, after

issuing notice and providing due opportunity to the Writ Petitioners.

3.2.The 1st Respondent/Sangam filed W.P.No.36952 of 2015 to

implement the orders passed by the 3rd Respondent/District

Collector, Kancheepuram dated 02.09.2015 and that the 5th

Respondent/Tahsildar, Thiruporur (4th Respondent therein) filed

counter stating that '... action is being initiated and to inform the

encroachment portion so as to evict all the encroachments in http://www.judis.nic.in

channel by the public works department'.

9

3.3.One Mrs.Palaniammal filed W.P.No.16969 of 2015 and

Mrs.Rani filed W.P.No.16970 of 2015 and that the 2nd Petitioner filed

counter affidavit in both the Writ Petitions. As a matter of fact,

W.P.No.36952 of 2015, W.P.Nos.16969 & 16970 of 2015 were

disposed of on 03.02.2016 in view of the present Writ Petition. The

existence of vaikal cannot be disputed. Further that, the villagers

are cultivating the Lands with the help of water available in the tank

cannot also be disputed. The water tank, vaikals and foot path could

not be intermeddled with by the developers in the manner it was

done. The 6th Respondent/Director, Directorate of Town and Country

Planning, Chennai and the 7th Respondent/Member Secretary,

Mamallapuram Local Planning Authority, Mamallapuram have no

authority to grant sanction or planning permission for development

of Land ignoring the rights of Agriculturists. The rights of

agriculturists to irrigate their Lands and to use of pathway is

interfered with in violation of their fundamental right to life and

existence.

3.4.The Land sought to be developed by the Petitioners was

shown in pink colour. The Green marked portion was shown as

'Road' which branched from the existing road connecting the http://www.judis.nic.in

property. Indeed, the 'Road' is formed in a property belonging to 10

'Vallaba Ganapathy Temple'. By Settlement Deed dated 05.12.1973,

an extent of 6.40 acres of Land comprised in Survey Numbers viz.,

(1)146/1 measuring 0.26 acres, (2)146/3 measuring 0.62 Acres,

(3) 139/1 measuring 0.32 acres, (4) 152 measuring 1.31 acres, (5)

200/4 measuring 0.40 acres, (6) 179/1B measuring 0.72 acres, (7)

180/2 measuring 0.40 acres, (8) 212/2 measuring 0.20 acres, (9)

144/2B measuring 0.44 acres, (10) 144/2A measuring 0.43 acres,

(11) 116/6 measuring 0.16 acres, (12) 116/7 measuring 0.16

acres, (13) 145/6 measuring 0.61 acres, (14) 200/4 measuring

0.16 acres, and (15) 199/1A measuring 0.23 acres in Siruseri

Village and an extent of 3.28 acres of Land comprised in Survey

Numbers viz., 125/14, measuring 1.36 acres, (2) 139/3 measuring

0.22 acres, (3) 129/14 measuring 0.22 acres, (4) 131/7 measuring

0.38 acres, (5) 147/5 measuring 0.86 acres and (6) 102/2A3

measuring 0.30 acres in Pudupakkam village, was gifted to the

'Vallaba Ganapathy Temple' and for other charitable purposes. The

property belonging to the Temple could not be grabbed by the

Developers. In the 'A' Register, the properties are shown as

belonging to the aforesaid Temple.

4.Contents of 2nd Respondent's Counter:

4.1.There is no pathway for the 'Agricultural Land'. The 1st http://www.judis.nic.in

Petitioner viz., XS Real Property Private Limited had promised that 11

'No Objection' for utilising the roads of the Siruseri Panchayat, that

was given by planning permission. In the encroached plan marked

channel in S.F.No.166/3, a 'Multistoried Building' was constructed.

The 3rd Respondent/District Collector, Kancheepuram had ordered

the Tahsildar, Tiruporur that the plan marked channel should be

maintained as in Village Plan and the encroachment area is to be

measured by the Public Works Department, based on the order

dated 30.04.20155 in W.P.No.13495 of 2015.

4.2.The 3rd Respondent/District Collector, Kancheepuram,

through proceedings dated 02.09.2015, had directed the Tahsildar,

Thiruporur to maintain the channels marked in the Map (Plan

Marked Channels) as per the Village Map in Siruseri Village,

Thiruporur Taluk, Kancheepuram District and to remove the

encroachments made by the 1st Petitioner/Private Company, after

measuring the encroachments by the Public Works Department etc.

4.3.In implementing the 3rd Respondent/District Collector's

order dated 02.09.2015, there are technical and legal difficulties:

(i) There is no F.M. Sketch and Measurement for plan

marked channel. For plan marked channels the same will

not be shown in the F.M. Sketch.

http://www.judis.nic.in

(ii) Plan marked channel did not come under the 12

purview of Public Works Department. This type of

channel will maintained by Revenue Department and

formers by “Kudimaramath Scheme”. Therefore it is

requested to reconsider the existing proceedings.

(iii) Plan marked channel did not come under purview of

Public Works Department. Hence, “The Tamil Nadu

Protection of Tanks and Eviction of Encroachments Act,

2007” did not cover the plan marked channel it is not

possible to issue eviction notice to the petitioner in the

said Act.

On site inspection, it was found that the maximum Ayacut of

Siruseri Tank was converted into Residential plots, I.T. Park and

remaining Lands are vacant.

4.4.The Government of Tamil Nadu had published the

Mamallapuram Master Plan in the year 2004, as per G.O.(Ms.)

No.287, Housing and Urban Development (UD 4.2) Department,

dated 08.07.2004, the entire Siruseri Village barring few survey

numbers was declared as 'Urbanisable Use Zone' and 'Agricultural

Use Zone' was declared as 'Nil'. While issuing the 'No Objection

Certificate', the Mamallapuram Master Plan had not sought the 'NOC

from the Public Works Department', since it is a 'Plan Marked http://www.judis.nic.in

Channel'.

13

4.5.In this situation, the solution is to form a 'Catch Drain cum

Field Channel' along the outer periphery of the Petitioners and that

the catch drain (0.45 m x 0.60m) inner dimension should be formed

by the 1st Petitioner at their own costs under the 'Supervision of

Public Works Department'.

5.Counter of 3rd Respondent [Erstwhile District Collector]:

5.1.The 1st Petitioner filed an application seeking grant of

building permission contending that Siruseri Village was declared as

'Urbanizable Use Zone' by means of G.O.(Ms.)No.287, Housing and

Urban Development (UD 4.2) Department, dated 08.07.2004. The

application of the 1st Petitioner was scrutinised by the Local Planning

Authority viz., Mahapalipuram Local Planning Authority of which as a

District Collector, he was a Member. After receipt of application and

on scrutiny of the same, the said application was forwarded to the

6th Respondent/Director, Directorate of Town and Country Planning,

Chennai for approval on 18.06.2012 and the said authority, after

verification of records, gave technical clearance for construction on

08.12.2014 and later the relevant files were forwarded to the

Siruseri Panchayat for building permission and that the said

Panchayat granted permission at its Council Meeting that took place http://www.judis.nic.in

on 11.03.2015. In fact, the Building Permission issued on 14

14.03.2015. The construction was put up, based on the Permission

and Approval being granted thereto.

5.2.None of the 'Authorities' including and not restricted to

'Siruseri Panchayat' had complained of an existence of any water

channel or intermeddling of the same. On perusal of 'A' Register,

F.M.B. Records available with the authorities concerned, the

approvals and permissions were given. The Village Map was not

perused or noticed. It could be seen that it is not a water channel

and it is only a Plan Marked Channel. The Plan Marked Channel is in

3' width and 1 to 1 ½' in depth, which supply excess water from the

lake to agricultural fields down the lake. The supply of water

through this Land was restricted to a short period. The supply is

normally done from the lake by lifting the sludge during November

– January and in some places, it is done upto March depending on

the storage of water in the lake. The supply of water is done after it

is ensured that there is sufficient water for drinking purposes for the

village available in the lake and that Siruseri, after urbanization was

classified as 'Nil Agricultural Zone'.

5.3.Further, upon urbanization, the Public Works Department

would not maintain these Detailed or Plan Marked Channels and http://www.judis.nic.in

they kept erased from the Map owing to urbanization. As a Plan 15

Marked or Detailed Channel, it is only the farmers

“Aayakattutharars” are the persons who maintain these channels,

depending on their requirements and usage and the order

impugned is legally valid and sustainable one in Law.

6.Counter of 3rd Respondent [Present District Collector]:

6.1.As per G.O.(Ms.) No.287, dated 08.07.2004 issued by

Housing and Urban Development (UD 4.2) Department through the

order of Master Plan by the 7th Respondent/Mamallapuram Local

Planning Authority 'Revised consent of the Government' to the

publication of notice of preparation of Master Plan under Section (2)

of Section 24 of the Tamil Nadu Town and Country Planning Act,

1971 was granted accord that No.40, Siruseri Village comprised

under various survey numbers is classified as 'Urbanizable Use

Zone'. The property which they are developing also falls under the

aforesaid survey numbers are classified as “Urbanizable Use Zone”.

6.2.By virtue of the Government Order passed in 2004 by the

Housing and Urban Development Department, it is confirmed that

there is 'Nil Agricultural Zone' in the said Siruseri Village. In terms

of the order passed by the Housing and Urban Development

Department, viz., Government Notification Ms.No.28 dated http://www.judis.nic.in

17.07.2013 that the Siruseri Village earlier classified as 'Urbanizable 16

Zone' was further advanced and classified as 'Mixed Residential

Zone'. By this order, the Land in Siruseri Village is purported to be

developed for Residential and Commercial use.

6.3.Based on the direction issued by this Court on 30.04.2015

in W.P.No.13495 of 2015, the impugned order dated 02.09.2015

came to be passed by his Predecessor. Further, from the verification

of FMB Sketch, 'A' Register and the Village Map that there are two

lakes; one is Periyaeri and another is Sitheri (Periya Eri and Chinna

Eri) and a Detailed or Plan Marked Channel was allegedly obstructed

or intermeddled from Sitheri Eri flowing from North to South. A

Detailed or Plan Marked Channel is in 3' width and 1' to 1 ½' in

depth, primarily aimed at supplying water for the agricultural fields

situate down the lake and it terminates at some point in a patta

Land and the entire channel runs on patta Land mostly abutting the

boundary of the property and in the 'A' Register, since it is on a

property belonging to an individual and only in 3' width and 1' – 1

½' depth, there was no marking or noting of the same.

6.4.The existence of 'Plan Marked Channel' or 'Detailed

Channel' could be verified or ascertained from the perusal of the

Village Map and existence of 'Sluice (Madhaku)' on the Lake. In the http://www.judis.nic.in

Sitheri Eri, as per the Village Map, there is marking for 4 sluices 17

(madhaku). Apart from the one, being the subject matter of the

Writ Petition, all other three are not in existence or not in use. The

Village Map, from his experience and perusal was not to be updated

for many number of years. The non-marking of the same in FMB

sketch is possible or attributable to non-usage of the Detailed or

Plan Marked Channel over a period of time or owing to a Human

error. Further, the Post Urbanization and Siruseri Village being

classified as 'Urbanized Zone', the village registers and records

would reveal that no agricultural activity, though certain persons

might have carried on certain activities and marking to that effect

are found in the Adangal Register, which is maintained.

6.5.By means of G.O(Ms.)No.287, Housing and Urban

Development (UD 4.2) Department, dated 08.07.2004 passed in

the year 2004, the Siruseri Village was urbanized. The Chitta and

Adangal Registers in respect of the village would be maintained till

the time town Survey was conducted. The Post town survey, the

survey numbers would be assigned as T.S. Numbers and Adangal

and Chitta Registers are not maintained.

6.6.The Detailed or Plan Marked Channel is sought to be

classified as 'Vaikal' and evidently and pellucidly it is only a Plan

Marked Channel, which is used for the supply of water depending on http://www.judis.nic.in

the storage for wet Lands. Siruseri has become a 'hub for industrial 18

activity' and housed several information technology parks, software

companies, multinational companies. Even in the urbanization, the

zones are classified. It could be owing to the fact that Siruseri

village was brought into urbanized zone when an application was

made by the Writ Petitioners, a sanction without verification of the

Village Map, was granted.

6.7.In any event, at the time when the Urbanization

Notification was issued, there was no objection or there is any

challenge to the same before any Forum. The persons who are

interested in carrying on development in the urbanization zone have

to submit an application seeking Approval from the Secretary to

Government, Housing and Urban Development Department and

these applications are submitted to the Local Planning Authority and

in the present case, the 7th Respondent/ Mamallapuram Local

Planning Authority, after scrutiny, had cleared the same on

22.07.2014 and the Director of Town and Country Planning

Authority was given Approval on 08.12.2014 and later, the Siruseri

Panchayat in its Council Meeting held on 11.03.2015 had accorded

permission and the building permits was accorded in Approval

No.5/2015 and pursuant to the same, the construction was made

and also that, none of the authorities have even raised a little finger

as to the existence of Detailed/Plan Marked Channel. http://www.judis.nic.in 19

7.The 5th Respondent's/Tahsildar's Counter:

7.1.There is a Plan Marked Channel passing through the

Survey Nos.211, 212, 219, 180, 169, 166, 157, 149, 148 and the

same was reflected in the Village Accounts. However, there is no

such Field Measurement Book to reflect the same. As per the 7th

Respondent's/Mamallapuram Master Plan (vide G.O.(Ms.)No.287

dated 08.07.2004), the entire Siruseri Village barring few survey

numbers was declared as 'Urbanisable Use Zone' and 'Agricultural

Use Zone' was declared as 'Nil'. However, it does not show that

there is no Plan Marked Channel and the Agricultural activities of

the 1st Respondent/Sangam Members.

7.2.The Petitioners have rights over only the Patta Land and

not on the Plan Marked Channel and that patta cannot be granted to

the water bodies including Irrigation Channel, Plan Marked Channel,

Incoming and Outgoing Channels of a Lake. The Petitioners have no

right to close the 'Plan Marked Channel' and encroached upon such

Plan Marked Channel. As such, the impugned order of the 3 rd

Respondent in directing the removal of encroachment made by the

Petitioners is sustainable one.

http://www.judis.nic.in 20

8.Resume of the 7th Respondent's (Planning Authority) Counter:

8.1.For the 2nd Petitioner's proposal in 14 acres, the 6th

Respondent/Director of Town and Country Planning had issued

technical clearance in Roc.NO.14158/BA2/dated 08.12.2014. The

Planning Permission was issued by this Respondent dated

06.03.2015 in Planning Permission No.3 (1 to 8/2015) in

Roc.No.387/2014. The 2nd Petitioner had developed and completed

the first phase as approved by the 6th Respondent/Director of Town

and Country Planning and also an additional proposal with an

additional survey number 229/3B, was submitted by the 2nd

Petitioner through this Respondent/Planning Authority to the 6th

Respondent/Director of Town and Country Planning, Chennai. While

scrutinising the first phase and the second phase additional

construction by the 2nd Petitioner, there was no such alleged canal

(Vaikal) exist at the time of inspection by the Member Secretary of

the Mamallapuram Local Planning Authority, as stated in the

impugned order of the 3rd Respondent.

8.2.The 6th Respondent/Director of Town and Country Planning

http://www.judis.nic.incalled for additional particulars for the 2nd Petitioner's proposal in 14 21

acres and the 6th Respondent issued technical clearance on

08.12.2014. The 7th Respondent/Planning Authority had issued the

Planning Permission for the aforesaid Planning Permission No.3 (1 to

8/2015) in Roc.No.387/2014 MLPA dated 06.03.2015. The 2nd

Petitioner had developed and completed the first phase as approved

by the 6th Respondent/Director of Town and Country Planning and

the 7th Respondent/Planning Authority. In fact, the 2nd Petitioner's

site in respect of 14 acres in Survey Nos.147/2, 148/3B, 149/1, 2B;

166/1A, 1B, 1C, 2A, 166/2B, 3; 169/1, 2; 170/1, 2; 171/1, 2, 3,

171/4; 172, 173/1, 2; 177/4, 5; 178/1, 2, 3A, 3B; 179/1B, 2A,

179/2B, 181/1, 2; 182/2 – (56793.44 m2) technical clearance was

given by the 6th Respondent/Director of Town and Country Planning,

Chennai dated 08.12.2014 and this Respondent had issued the

Planning Permission for the above phase on 06.03.2015.

8.3.The 2nd Petitioner submitted a proposal through this

Respondent to the 6th Respondent on 28.02.2015 with an inspection

report. While scrutinising the Building Approvals for the first phase

and the second phase construction by the 2nd Petitioner, there was

no such alleged canal (Vaikal) existing in the site at the time of

inspection by the 7th Respondent and that the NOC was issued by

the 5th Respondent/Tahsildar, Thiruporur Taluk dated 23.04.2014 for http://www.judis.nic.in

the entire Lands. There was no remarks of such alleged canal 22

(Vaikal) in various survey numbers of the 2nd Petitioner's proposal in

'A' register and also that there was no marking and remarks of such

alleged canal (Vaikal) in the Field Measurement Book of the 2nd

Petitioner's Land parcel.

8.4.The 2nd Petitioner had obtained a patta for the entire Land

in its name issued by the 5th Respondent/Tahsildar, Thiruporur.

Further, there was no remarks in the environmental clearance

certificate dated 24.12.2014 issued by the Member Secretary

SEIAA-TN which was submitted to the Mamallapuram Local Planning

Authority for their scrutiny. As the Land was fit for development, the

Mamallapuram Local Planning Authority had issued permission for

the first phase of the 2nd Petitioner's Lands viz., No.3 (1 to 8/2015)

dated 06.03.2015.

9.Counter and Additional Counter Averments of 8th Respondent:

9.1.He never agreed to sell any Land to the Writ Petitioners.

The Writ Petitioners had created 'Bogus Documents' to make

defamatory allegations against him. The Road is formed in a

property belonging to Vallaba Ganapathy Alaya Madam and how the

http://www.judis.nic.inWrit Petitioners grabbed the Land and converted them is not known. 23

9.2.The Petitioners had filed two First Information Reports

against him and his family members. They caused his arrest and

arrest of his son illegally. If an Advocate Commissioner is appointed

to inspect the properties in Survey Nos.147, 149, 166, 165, 169,

170, 1717, 178, 179 in Siruseri Village, Thiruporur Taluk,

Kancheepuram District and the channels emanating from Sitteri,

Periyaeri and Mynamthangal tanks and to submit a Report

concerning the Vaikal to which the water for irrigation was provided,

then the existence of channels and obstruction of the same by the

Petitioners can be easily ascertained.

9.3.He lodged a complaint on 06.03.2017 seeking action

against Police and the Petitioners for registration of false First

Information Report against him and his family members. He had

filed three Writ Petitions. The entire complex is protected by the

Petitioners private security personnel. After arresting him and

keeping him under custody, the Petitioners had taken control of the

gate leading to his property in Survey No.149/2. They had put up a

barricade preventing entry of vehicles and the people in the

Panchayat road leading to the Petitioners' property.

http://www.judis.nic.in

9.4.The 8th Respondent's father Late Varathan owned the 24

following properties: (i) Property measuring 41 cents in S.No.35/D,

(ii) Property measuring 72 cents in S.No.46/2, (iii)property

measuring 2 Acres and 8 cents in S.No.234/4 and (iv) property

measuring 21 cents in S.No.197 Siruseri Village, Thiruporur Taluk,

Chengalpattu District. Further that, Item (i) to (iii) owned by his

father were sold and out of the sale proceeds, he purchased (i)

property measuring 1 acre and 29 cents in S.No.124 & 118/4,

(ii)property measuring 30 cents in S.No.149/2 and (iii) property

measuring 41 cents in S.No.181/3 in Siruseri Village, Thiruporur

Taluk, Kancheepuram District in his name. His mother late

Logammal was the owner of (i) Property measuring 1 acre and 11

cents in S.No.148/1 & 148/2, (ii) Property measuring 7 cents in

S.No.39/11 and (iii)property measuring 64 cents in S.No.150/2

Siruseri Village, Thiruporur Taluk, Kancheepuram District and his

daughter owned 54 cents of Land in S.No.179/1A in Siruseri Village.

9.5.After the demise of his parents, the properties were

inherited by him and his sisters (i) PaLandi Ammal (ii) Muthammal

and (iii) Kumari. The property in Survey No.197 is Punja Land and

all other properties are agricultural wet Lands (Nanja) and that they

were cultivating the Lands for generations and the primary crop is

paddy. During summer seasons, groundnut, gingili, watermelon, http://www.judis.nic.in

sneak gourd, bitter gourd crops etc. are raised. In Survey No.148/1 25

there is a well with free agricultural electricity connection standing

in the name of his mother late Logammal. In June 2014, the

Petitioners commenced preparations for putting up a huge

multistoried complex in 15 acres of Land comprised in Survey

Nos.170/1, 170/2, 171/1, 171/2, 171/3, 171/4, 172, 173/1, 173/2,

177/4, 177/5, 178/1, 178/2, 178/3A, 178/3B, 166/2B, 166/1B,

166/1C, 166/3, 169/1, 169/2, 179/2A, 179/2B, 179/1B,149/1, 147

pt. and 152 pt. Siruseri Village, Kancheepuram District.

9.6.The properties belonging to his family and his daughter

are situated on the northern, southern and eastern part of the

proposed building complex of petitioners' property in which

residential flats are being constructed in wet Lands/Nanja also.

9.7.Under the pretext of lying foundation for the multistoried

residential flats, the Petitioners had obstructed the Vaikal / Channel

through which water was supplied to their paddy fields from Sitteri,

Periyaeri and Mynamthangal tanks. The Writ Petitioners closed the

channels during the pendency of W.P.No.13495 of 2015.

http://www.judis.nic.in 26

10.Petitioners' Reply Affidavits [In respect of Counter of 5th Respondent]:

10.1.The fact that no such alleged Plan Marked Channels

mentioned in the 'Remarks' of the Village Map, A – Register, FMB

and anywhere in the Government Records. The 5th Respondent/

Tahsildar, Thiruporur while issuing a No Objection Certificate (NOC)

dated 23.04.2014 to the 2nd Petitioner had stated that the entire

Lands owned by the 2nd Petitioner at Siruseri Village in S.Nos.147,

148, 149, 166, 169 were not Government Poramboke Lands and not

prone to floods ought not to come at the latter stage with a

statement that “there are a plan marked channels has been passed

through the S.Nos.169, 166, 149, 148 and the same has been

reflected in the village account, but there is no such FMB to reflect

the same.”

10.2.The impugned order of the 3rd Respondent is running

contrary to his findings that the alleged Plan Marked Channels as

mentioned in the Writ Petition are not visible/found in the ground or

in the Field Measurement Book Sketch. The 'Reference' of the

Village Map does not contain any details about Plan Marked Channel

and hence, the impugned order passed by the 3rd Respondent to

http://www.judis.nic.inremove the encroachment in the ownership holding of the 27

Petitioners are unsustainable and are required to be reconsidered.

Also, no authenticated revenue records shows the existence of the

alleged Plan Marked Channels.

10.3.The Respondents 1 and 8 had sufficient opportunity to

establish their rights as farmers prior to the passing of the

G.O.(Ms.)No.287 dated 08.07.2004. There were no objections from

the Respondents 1 and 8 though sufficient time given for objection

from the villagers were given and only on 17.07.2013, the

Government of Tamil Nadu published an order vide G.O.(Ms.)No.28

for classifying the Lands as “Mixed Residential Zone” from

“Urbanizable Use Zone”. Based on the NOC of the 5th Respondent

(Tahsildar, Thiruporur Taluk), the 7th Respondent/Planning

Authority's designated officers had inspected the 2nd Petitioner's

property on 16.07.2014. In fact, the 2nd Petitioner had obtained

technical clearance for construction by the Director of Town and

Country Planning on 08.12.2014. After getting prior approvals from

the Government organisation, the 2nd Petitioner had constructed the

project Residential Buildings in its Lands including the Survey

No.166/3 and that the issuance of an order for removal of

encroachment in 2nd Petitioner's own patta Lands is an arbitrary,

improper and unsustainable one because of the fact the said order http://www.judis.nic.in

is contrary to Government Orders and Statutory Records and further 28

the Lands in question were in continuous possession and enjoyment

through proper documents like sale deeds.

10.4.The Petitioners had obtained all necessary sanctions and

approvals including site approval from DTCP/MPLA for the entire

development. Further, the 2nd Petitioner followed the approval

process and obtained approvals for development of phase 1 of its

project. The approval and process are as follows:

“a)Tahsildar NOC issued on 23.04.2014.

b) Panchayat President forwarding letter to MLPA.

c)MLPA after visiting the proposed site ad scrutinising NOCs,

revenue records and documents forwards clearance letter to DTCP

along with construction plans.

d)DTCP sanctions site approval and technical clearance for the

project.

e)The file was placed before MLPA committee for approval of the

project.

f)MLPA committee approved the file and forwarded to MLPA.

g)MLPA issued planning permit on 06.03.2015.

h)Panchayat President issued Building approval on 14.03.2015.

i)Environmental clearance obtained for the entire site of 15 acres on

24.12.2014.” http://www.judis.nic.in 29

10.5.After obtaining due sanction and approvals as per

Government norms, the 2nd Petitioner in March 2015, had

constructed Phase 1 of the project which is about 1.5 lakhs sq.ft. of

residential development comprising of 114 apartments. The 2nd

Petitioner had completed construction of 114 apartments of phase 1

of the project in full and possession intimation was sent to all

customers and as of now, about 75 customers had taken possession

and few of them had already occupied their apartments.

10.6.The Petitioners filed a complaint against the 8th

Respondent and his hooligans before the Inspector of Police,

Thazambur Police Station, with evidence like photographs and other

records in respect of the 8th Respondent and his hooligans illegally

digging and opening up the Sitteri bund by punching holes in the

bund using JCBs, thereby releasing water from the bund which had

inundated all the adjoining area including project area which is

being developed by the 2nd Petitioner. The Petitioners had filed

enough evidences against the 8th Respondent in digging and

opening up the sitter Bund, and for Trespass into their project and

threatening their employees and for stoppage of construction of

compound wall and catch drain cum field channel along the outer

periphery of their project, which altogether caused monetary losses http://www.judis.nic.in

and also hindered the project being developed by them. 30

10.7.The first complaint against the 8th Respondent for his

illegal acts as mentioned supra was lodged before E-9, Thazhambur

Police Station and the second complaint was lodged against the 8 th

Respondent and his son for pelting stones on the apartment

occupied by the customer in Phase 1 of the 2nd Petitioner's project

which broke the French door wherein glass pieces shattered all

across rooms where the customer was living. The complaints were

inquired and F.I.R. was registered against the 8th Respondent and

his son.

10.8.The 8th Respondent claims that there is a Vaikal/Canal

passing from Sitteri to his Land based on the Village Map of Siruseri

Village. However, in the said Village Map for Siruseri Village consists

of reference details in which no information was furnished about the

said Vaikal/Canal. As per the Engineering and Survey Standards all

the symbols/marks specified in the Map/Drawings ought to be

supported by a Reference.

10.9.The Siruseri Village Map also supported by reference

details of about 50 different items even though no information was

found about the alleged Vaikal/Canal. The appointment of Advocate http://www.judis.nic.in

Commissioner is not required, since there were no reference about 31

the said Vaikal/Canal anywhere in the records being maintained by

the authorities. There is no 'Metes and Bounds' of the said

Vaikal/Canal. The Petitioners had posted security personnel at the

entrance of the project being developed by them to protect the

project, customers and its employees against any illegal acts. The

barricade placed in the entrance of the Petitioners project does not

prevent the 8th Respondent in accessing his property and the contra

plea of the Respondent in this regard is baseless one.

10.10.The 8th Respondent plays a major role in the 1st

Respondent/Sangam as “Treasurer”. Therefore, the notice boards

were displayed and put up in the Lands owned by the 8th

Respondent clearly proves that he influenced the Sangam for

displaying the notice board against the Petitioners without any

authority.

11.Gist of Petitioners' Additional Affidavit [In respect of 8th Respondent's Counter]:

11.1.Due to the illegal and unauthorised action of the 8th

Respondent, the project area and the adjoining Lands were

inundated with water. The 2nd Petitioner had incurred substantial

loss towards damage to their project, due to the flooding of the http://www.judis.nic.in

water, which was discharged illegally by the 8th Respondent, for 32

which it is initiating independent civil action. The 8th Respondent is a

Thalaiyari or Headman of the Siruseri Village and by misusing his

contacts and his official capacity, despite being a Government

Servant. The 8th Respondent had defamed their reputation by using

3rd Respondent's name in the notice boards which stated that the

Collector has ordered to demolish the building of the Petitioners.

11.2.The 2nd Petitioner had lodged a complaint before the 3rd

Respondent/ District Collector on 26.12.2016 and further, he lodged

a complaint with the Inspector General of Police, Northern Range on

27.12.2016. Apart from that, the 2nd Petitioner filed a complaint

before the Superintendent of Police, Kancheepuram on 28.12.2016.

A First Information Report bearing No.487 dated 28.12.2016 was

registered by the Police under the Indian Penal Code and the Tamil

Nadu Public Property (Prevention of Damage & Loss) Act, 1992.

Based on the complaint lodged by the 2nd Petitioner, the Police

arrested the 8th Respondent for illegal acts.

12.Petitioners' Contentions:

12.1.The Learned Counsel for the Petitioners submits that the

3rd Respondent/District Collector, Kancheepuram District had passed

the impugned order dated 02.09.2015 without obtaining the http://www.judis.nic.in

submissions and findings of the 4th Respondent, who exercises 33

jurisdiction over the Siruseri Village and is well aware of the

revenue records, Land classification etc.

12.2.The Learned Counsel for the Petitioners contends that

the 3rd Respondent/District Collector, Kancheepuram had not

considered the course of the alleged channel which is based on the

Village Map of the year 1985 and further that, he had not

considered the fact that there are various other survey numbers

before the property being developed by the Petitioners and also

other survey numbers after the Petitioners property which are

owned by others. Furthermore, it is represented on the side of the

Petitioners that no notice or information was sought for from these

owners. As such, the action of the 3rd Respondent/District Collector,

Kancheepuram is an arbitrary and discriminatory one.

12.3.The Learned Counsel for the Petitioners projects an

argument that the impugned order dated 02.09.2015 of the 3rd

Respondent seeks to completely stop any construction activity of

the Petitioners when there is no 'Water Channel' existing as can be

seen from the Topo Plan and photos filed by the Petitioners.

Moreover, it is the stand of the Petitioners that the 3rd Respondent

had failed to consider that the alleged water channel is across the http://www.judis.nic.in

road and no direction was issued to any other owner or authority for 34

the alleged encroachment.

12.4.The Learned Counsel for the Petitioners proceeds to point

out that the representation of the 1st Respondent that the

Petitioners are preventing access way to agricultural Lands and are

blocking the water canals and in fact, the 3rd Respondent in its order

had not verified whether the Lands mentioned by the 1st

Respondent/ Sangam are Agricultural Lands or not.

12.5.The Learned Counsel for the Petitioners comes out with a

plea that the 3rd Respondent had not perused or verified the

G.O.(Ms.)No.287 dated 08.07.2004 and G.O.Ms.No.28 dated

17.07.2013 to ascertain that there exist 'no cultivable Lands' in

Siruseri Village as both the Government orders had mentioned that

in the entire Siruseri Village, 'Agricultural Zone is Nil' and that the

Lands are barren Lands unfit for agricultural activity.

12.6.The Learned Counsel for the Petitioners contends that

the 3rd Respondent had not considered the report of the 4th

Respondent that the Lands were reclassified by the Government for

urbanisable use and in fact, the 3rd Respondent had not considered

the submissions of the 5th Respondent/Tahsildar, Kancheepuram http://www.judis.nic.in

District that the Petitioners Lands and the 1st Respondent's Lands 35

had already been converted as residential plots and that the entire

Siruseri Village is not fit for agricultural activities and the Lands

purchased by the 2nd Petitioner were classified as 'Urbanizable Zone'

Lands.

12.7.The Learned Counsel for the Petitioners submits that the

Lands are owned by the 2nd Petitioner after having paid valuable and

valid consideration and the 2nd Petitioner had obtained patta and

mutation was done in the revenue records in its name. Indeed, the

2nd Petitioner had purchased the Lands after obtaining due diligence

report from its Advocates.

12.8.The Learned Counsel for the Petitioners takes a stand

that the 3rd Respondent/District Collector, Kancheepuram had not

ascertained whether the channels shown in the Village Map are

'Patta' canal or 'PWD' canal and that all the canals which feed the

Agricultural Lands or which are used to drain Flood water will be

shown in the FMB sketch (Revenue Records) and the same are

maintained by the PWD Department even now.

12.9.The Learned Counsel for the Petitioners points out that

there are no water canal markings in the FMB sketch of S.No.166/3 http://www.judis.nic.in

where the alleged encroached was made. In this connection, the 36

Learned Counsel for the Petitioners strenuously takes a plea that

even in the 'A' Register, there was no remark of any canal passing

through the 2nd Petitioner's Lands and these aspects were

considered by the 6th and 7th Respondents before the approvals for

construction were accorded and only thereafter the Site Approval,

Planning permit and Building Plan permits were issued to the 2nd

Petitioner's Lands.

12.10.The Learned Counsel for the Petitioners submits that

the 3rd Respondent, without calling for any documentary proof from

the 1st Respondent in regard to their ownership, Land classification,

their cultivation, their Revenue Records such as patta, chitta,

adangal, FMB sketch, their agriculture free electricity connection,

etc. had believed the one page representation of the 1st Respondent

and passed the impugned order. Besides this, the 3rd Respondent

had not noted the statement of the Head Surveyor that there are no

water channels shown in the FMB sketch.

12.11.The Learned Counsel for the Petitioners refers to the

impugned order of the 3rd Respondent dated 02.09.2015 and

contends that the Plan Marked Channels were not visible either on

ground or in the Field Measurement Book Sketch/Revenue Records,

but wrongly stated that the 1st Petitioner had dried up the channels http://www.judis.nic.in

and this is contrary to the findings of the 3rd Respondent that there 37

was no channel and hence, there is no basis on the part of the 3rd

Respondent to hold that there was any encroachment made by the

Petitioners.

12.12.The Learned Counsel for the Petitioners contends that

the 5th Respondent had clearly submitted that for the last 10 years

there was no cultivation and that there was no channel either on

ground or in the revenue records which were used for carrying

water. While doing so, the conclusion of the 3rd Respondent that the

channels were present in the Village Map was clearly without any

basis.

12.13.The Learned Counsel for the Petitioners strenuously

takes a stand that there was no justification to come to a conclusion

that S.No.166/3 was encroached upon by the Petitioner, when these

Lands are Patta Lands and appropriate statutory Approvals were

obtained for Building construction.

12.14.The Learned Counsel for the Petitioners submits that

the 3rd Respondent had not taken steps to verify and ascertain if

there is water channel present in S.Nos.207, 211, 201, 212, 180,

179 and 169, but merely concluded that in S.No.166/3 the water http://www.judis.nic.in

channel was encroached by putting up construction. 38

12.15.The Learned Counsel for the Petitioners submits that

the 3rd Respondent had not checked the facts that when there is no

water channel present in S.Nos.205, 207, 211, 201, 212, 180, 179

and 169 which are closer to the Periya Eri/Sitteri, there cannot be a

water channel in S.No.166/3 alone. Therefore, the impugned order

was passed without analysing the factual position.

12.16.The Learned Counsel for the Petitioners contends that

the order of the 3rd Respondent that the encroachment in S.No.166/

3 was to be removed and that the channels shown in the Village

Map will have to be maintained is unsustainable, since the same is

contrary to Government Orders and Statutory Records. Further,

since there is no agricultural activity in the entire Village of Siruseri,

the order of the 3rd Respondent that the 4th Respondent should take

steps to create access through patta Lands from the gifted public

road to take agricultural produce of owners of Land in S.No.147 and

other Land owners, is invalid.

12.17.The Learned Counsel for the Petitioners projects an

argument that the Petitioners had sold majority of the apartments

in first phase of the project and that the third party interests were http://www.judis.nic.in

already created. Further, the Petitioners customers had invested 39

their hard earned monies into the apartments constructed in the

project and since the project is a joint development between an

Indian entity and FDI entity from Kuwait, then, the foreign

investor's investment will be in Jeopardy.

12.18.It is projected on the side of Petitioners that they

developed the Lands only after securing requisite statutory

approvals and had marketed and sold majority of the apartments in

first phase of the project and therefore, when the Lands in

S.No.166/3 being owned by the 2nd Petitioner, there is no legal

justification to state that the Lands were encroached by the

Petitioners.

13. 1st Respondent's Submissions:

13.1.The Learned Counsel for the 1st Respondent/Sangam

contends that the existence of Vaikal/Canal cannot be disputed and

that the cultivation of Lands by the Villagers with the help of water

available in the tank also cannot be disputed and further that,

brushing aside the rights of agriculturists, the Respondents 6 and 7

have no authority to grant sanction or planning permission for the

development of the Land.

13.2.The Learned Counsel for the 1st Respondent refers to the

definition of Section 2(1) of the Tamil Nadu Patta Pass Book Act, http://www.judis.nic.in

1983 which reads as under:

40

“In this Act, unless the context otherwise requires, -

(1)“agriculture” includes,-

(a) horticulture;

(b) the raising of crops, grass or garden produce;

(c) the use by an agriculturist of Land held by him, or part thereof, for grazing;

(d) the use of any Land for the purpose of raising manure crops;

(e) dairy farming;

(f) poultry farming;

(g) livestock breeding;

(h) growing of trees;

and “agricultural” shall be construed accordingly.”

13.3.The Learned Counsel for the 1st Respondent adverts to

Section 2(4) of the Act, 1983, which defines the term “Land”

meaning agricultural Land, that is to say, Land which is used or

capable of being used for agricultural purposes or purposes

subservient thereto and is either assessed to Land revenue in the

State or is subject to a local rate assessed and collected by officers

of the Government as such and includes horticultural Land, forest

Land, garden Land and plantations, but does not include house

site.” Also that, Section 3 of the Act speaks of 'Issue of Patta Pass

Book'.

http://www.judis.nic.in

13.4.It is represented on behalf of the 1st Respondent that 41

except the two properties purchased by the Petitioners other Lands

are 'Agricultural Lands'.

13.5.The Learned Counsel for the 1st Respondent contends

that the Revenue Inspector, Mambakkam, Thiruporur Taluk [with

reference to the complaint of Murugan and another submitted on

the public grievance day] had submitted an 'Enquiry Report' dated

21.04.2014 to the Tahsildar, Thiruporur wherein he had mentioned

as under:

“... The complainant cultivated his nanja Lands for the present fasli 1423 in survey number 166/5, 181/3 149/2, 150/2, 148/1 and 151/1 by using the water from the well. There is a water channel in Siruchary village which starts from Periyaeri in survey number 219 and passes through patta Lands in survey numbers 206, 207, 202, 211, 212, 179, 169, 166 and 168 and it goes up to survey number 162. The above particulars are mentioned in the village map by marking it as a line. As per the village records, the Lands surrounding the channel are in the name of Jagarandha Properties PVT LTD. It is made known that now the company has fenced the property using iron mesh leaving the channel.” http://www.judis.nic.in 42

13.6.Further, in his Report, he had also enclosed the

statement of Village Administrative Officer No.(13) of Siruseri

Village, which points out that 'Murugan and Kannan give the

complaint to the District Collector regarding the supply of water for

irrigation to their property in Siruseri Village, Tiruporur Taluk and

the Petitioners cultivated nanjai Lands in survey number 166/5,

181/3, 149/2, 150/2, 148/1, 151/1 and 166/5 for the fasali 1423 by

using water from the well and that the irrigation channel in the

Siruchary Village starts from Periyaeri survey number 219 and goes

through patta Lands in survey numbers 206, 207, 202, 211, 212,

179, 169, 166 and 168 and reaches the Land in survey number 162

and these particulars are mentioned in the Village Map by marking it

as a line and as per the village records the Lands surrounding the

channel are in the name of the 2nd Petitioner and that now the

company had fenced the property using iron mesh leaving the

channel'. Under these circumstances, the approval and certificate

were given by the authorities concerned and even now the

Petitioners are carrying out the developmental activities.

13.7.The Learned Counsel for the 1st Respondent brings it to

the notice of this Court that the Executive Engineer, W.R.O.

(P.W.D.), Lower Palar Basin Division, Kancheepuram had filed a http://www.judis.nic.in

counter on behalf of the 2nd Respondent stating that there was no 43

F.M. Sketch and Measurement for plan marked channel and that for

plan marked channels, the same would not be shown in the F.M.

Sketch. Further, the plan marked channel does not come under the

purview of Public Works Department and that this type of channel

will be maintained by the Revenue Department and farmers by

'Kudimaramath Scheme' etc. Further, the Learned Counsel for the

1st Respondent points out that while issuing NOC, Mamallapuram

Master Plan had not sought NOC from Public Works Department,

since it is a plan marked channel.

13.8.The Learned Counsel for the 1st Respondent submits that

the Petitioners, after getting patta or planning permission and

obtained NOC order from Tahsildar, had put up the multistoried

building and these would not affect the rights of the agriculturists so

long as they want to use the Vaikal/Canal for cultivation because of

the reason they have 'Riparian Rights'.

13.9.The Learned Counsel for the 1st Respondent points out

that in the Siruseri Village Accounts for fasali 1423 in respect of

survey number 166/5, 181/3 149/2, 150/2, 148/1 and 151/1, the

name of 'K.Rani' (one of the Writ Petitioner in W.P.No.16970 of

2015) is seen and the nature of cultivation was mentioned as http://www.judis.nic.in

'paddy'. Likewise, for the Fasli in respect of Survey No.147, 148 44

(1)(2) in the Village Accounts of Siruseri, the name of

'Shanmugammal' is seen and the nature of cultivation was

mentioned as 'paddy' (No.1155). In respect of S.No.148/1 and 2 in

the said Village Accounts, the name of 'Yogamani' is mentioned and

the nature of cultivation was described as 'paddy'.

13.10.The Learned Counsel for the 1st Respondent submits

that the 1st Respondent/Sangam as Petitioner filed W.P.No.13495 of

2015 against the State of Tamil Nadu and four others and the 1st

Petitioner in the present W.P.No.4864 of 2016 figured as 5th

Respondent. Further, W.P.No.16969 of 2015 was filed by

Mrs.E.PaLandi Ammal against the State of Tamil Nadu rep. By

Secretary to Government, Public Works Department, Chennai and

four others (in which the 2nd Petitioner in W.P.No.4864/2016 figured

as 5th Respondent).

13.11.The Learned Counsel for the 1st Respondent submits

that it is for the Revenue Authorities and the Writ Petitioners to

ensure that the agriculturists get water from the Channel/Vaikal.

Furthermore, the action of the Revenue Authorities was a wrong one

and further, the 5th Respondent/Tahsildar is aware of the full

situation especially when records are with him. http://www.judis.nic.in 45

Contentions of Respondents 2 to 7:

14.The Learned Government Advocate for Respondents 2 to 7

submits that there was a Channel existing from time immemorial

and that now there is no such water flowing and that the Executive

Engineer of P.W.D. had filed a counter affidavit before this Court and

according to the Executive Engineer, W.R.O. (P.W.D.), Lower Palar

Basin Division, Kancheepuram District, the site inspection was made

and it was found that the maximum ayacut of Siruseri tank

converted into residential plots, I.T. Park and the remaining Lands

are vacant.

15.Further, it is represented on behalf of the Respondents 2 to

7 that as per the Mamallapuram Master Plan, the entire Siruseri

Village barring few survey numbers was declared as 'Urbanisable

Use Zone' and 'Agricultural Use Zone' was declared as 'Nil' and

further that, the NOC was not sought for from the Public Works

Department at the time of issuance of NOC by the Mamallapuram

Master Plan authority.

16.The Learned Government Advocate for Respondents 2 to 7

submits that the Executive Engineer, W.R.O. (P.W.D.), Lower Palar http://www.judis.nic.in

Basin Division, Kancheepuram District had filed a Counter Affidavit 46

dated 29.11.2016 (on behalf of the 2nd Respondent) that the

solution is to form a Catch Drain cum Field Channel along the outer

periphery of the Petitioners and the catch drain (0.45 m x 0.60 m)

inner dimension should be formed by the 1st Petitioner at their own

costs under the supervision of Public Works Department.

Plea of the 8th Respondent:

17.The Learned Counsel for the 8th Respondent submits that

the 8th Respondent never agreed to sell any Land to the Writ

Petitioners and that the Petitioners had created bogus documents to

make defamatory allegations against him. Further, the road was

formed in a property belonging to Vallaba Ganapathy Aalaya Madam

and that the channels and pathways were in enjoyment of the

Agriculturists for generations to generations are being destroyed by

the developers in violation of the Law with the active support of the

Revenue Authorities. Furthermore, the 1st Writ Petitioner is the

Defendant in O.S.No.579 of 2014 filed by the 8th Respondent on the

file of the Learned District Minsif, Chengalpat and that the 2nd Writ

Petitioner is the sister concern of the 1st Petitioner.

Petitioners' Reply:

18.The Learned Counsel for the Petitioners submits that due http://www.judis.nic.in

to efflux of time, there is no 'Channel' and if it is a 'Channel', there 47

must be a source and that it is not a public tank controlled by

Government. Further, the plan given by the 2nd Respondent is not a

correct one.

An Appraisal:

19.It is to be pointed out that the 1st Respondent/Sangam in

its Representation/Petition dated 06.04.2015 addressed to the 3rd

Respondent/District Collector, Kancheepuram had stated that the

'Agricultural Lands' in Siruseri Village, Thiruporur Taluk were

cultivated by the water from 'Eri' and that the 1st Petitioner/

Company had purchased 15 acres of Land in the middle of

Agricultural Lands in Survey Nos.147, 149 and 166 and that based

on the alleged permission from the Government was planning to

construct multistoried building. That apart, the Agriculturists were

cultivating the Lands surrounding property owned by them. In fact,

they were cultivating the brinjal, watermelon, paddy etc. by utilising

the water from the Eri and that the Company prevented flow of

water by digging foundation for construction of buildings and after

coming to know of the same, the agriculturists lodged a complaint

to the Village Administrative Officer and the 3rd Respondent.

http://www.judis.nic.in

20.The 1st Respondent/Sangam in its Representation dated 48

06.04.2015 had stated that as per the direction of the 3rd

Respondent/District Collector, Kancheepuram, the Tahsildar and the

Village Administrative Officer inspected the spot and orally advised

the Company not to ban the Channel/canal and not to prevent the

pathway. But after their exit, the Company with audacity, had

prevented the Agriculturists from entering into the Lands through

the said pathway etc. In short, the 1st Respondent/Sangam had

sought the intervention of the 3rd Respondent/District Collector,

Kancheepuram and to take necessary action so that the

Agriculturists can continue their agriculture by using the pathway

without any disturbance besides ensuring the free flow of water in

the channel.

21.Based on the orders of this Court dated 30.04.2015 passed

in W.P.No.13495 of 2015 filed by the 1st Respondent/Sangam (as

Writ Petitioner) wherein the 3rd Respondent/District Collector,

Kancheepuram (2nd Respondent therein) was directed to dispose of

the Representation of the 1st Respondent/Sangam dated 06.04.2015

within two months from the date of receipt of this order etc.

22.The 3rd Respondent/District Collector, Kancheepuram, after

conducting an enquiry, passed a final order dated 02.09.2015 inter http://www.judis.nic.in

alia observing that “(i)the channel marked in the map (Plan Marked 49

Channels) as averred in the Writ Petition were not found in the Land

as well as the Field Map but found only in the Village Map; (ii) the

aforesaid company had closed the channel marked in the Map (Plan

Marked Channel); (iii) there is no approach pathway to enter into

the agricultural Lands on any side situated on the eastern side of

the 1st Petitioner/Company and that there are some agricultural

paddy Lands belonging to some private persons in Survey

No.147/1, 182/2 in between the Land gifted to the Panchayat by the

Company and that in the Written Statement of the 1st Petitioner/

Company (through an Authorised person) had mentioned that they

have no objection to use the Land gifted to the Panchayat for road

by the aforesaid agriculturists; and (iv) that the private company

(1st Petitioner) had encroached the Plan Marked Channels in Survey

No.166/3” and after accepting the representation of the 1st

Respondent/Sangam, directed the Tahsildar to maintain the

channels marked in the Map (Plan Marked Channels) as per the

Village Map in Siruseri Village, Thiruporur Taluk, Kancheepuram

District and to remove the encroachments made by the 1st Petitioner

/Company after measuring the encroached portion through Public

Works Department.

23.Added further, the 3rd Respondent/District Collector, http://www.judis.nic.in

Kancheepuram District had directed the Revenue Divisional Officer, 50

Chengalpet to take appropriate action to see that the owners of the

Land in Survey No.147 and in other survey numbers to secure way

for ingress and egress in taking their articles for cultivation and the

agricultural products from their Lands through the (common

pathway) Land gifted by the 1st Petitioner/Company to the

Panchayat.

24.The categorical stand of the Petitioners in the present Writ

Petition is that the Lands are owned by the 2nd Petitioner

(M/s.Jacaranda Properties Private Limited) being purchased for a

valuable Sale Consideration and that the 2nd Petitioner had obtained

a patta and only after obtaining necessary Statutory Approvals as

specified in the Town and Country Planning Act and Development

Control Rules, the Petitioners had commenced their activities.

Moreover, the Petitioners had gifted the Lands in Open Space

Reservation Area.

25.The other plea of the Petitioners is that there was no mark

of any canal or passing through the 2nd Petitioner's Land even in the

'A' Register and there were no water canal markings in the F.M.B.

Sketch in respect of S.No.166/3 where encroachments were

purportedly made. Furthermore, all the canals which feed the http://www.judis.nic.in

agricultural Lands or which were used to drain flood water would be 51

shown in the FMB sketch (Revenue Records) and the same are

maintained by the Public Works Department even now.

26.As a matter of fact, the 6th and 7th Respondents had

considered the aforesaid aspects before granting approvals for

construction and subsequently, the Site Approval, Planning Permit

and Building Plan permits were issued for the 2nd Petitioner's Lands

by them.

27.In fact, the impugned order of the 3rd Respondent dated

02.09.2015 is assailed by the Petitioners before this Court on the

ground that the 3rd Respondent had not taken steps to verify and

ascertain if there is water channel present in S.Nos.207, 211, 201,

212, 180, 179 and 169, but merely came to the conclusion that in

S.No.166, the water channel was encroached by putting up the

construction and that when there is no water channel present in

Survey Nos.205, 207, 211, 201, 212, 180, 179 and 169 which are

closer to the Periya Eri/Sitteri, there cannot be water channel in

S.No.166/3 alone. Also that, the 3rd Respondent/District Collector,

Kancheepuram passed an impugned order dated 02.09.2015,

notwithstanding the Letter/Report of the 5th Respondent/Tahsildar,

Thiruporur dated 16.07.2015 and 02.09.2015 stating that the http://www.judis.nic.in

channel shown in the Field Map had already dried up and during the 52

last 10 years, there were no water in the canals and that the Lands

are barren Lands and in those Lands, there is no foot track or cart

track either on ground or in Government Revenue Records etc.

28.The 1st Respondent/Sangam emphatically takes a plea that

the existence of Vaikal/Channel cannot be disputed and also the

Villagers cultivating the Lands with the help of water available in the

tank cannot be disputed and that the water tank, Vaikals and foot

path cannot be intermeddled with the Developers in the manner

that it was done and that the right of agriculturists to irrigate the

Lands and the use of pathway cannot be interfered with in breach of

their fundamental right to life and existence as Human Beings.

29.The 2nd Respondent's view is that to implement the order

of the 3rd Respondent/District Collector, Kancheepuram dated

02.09.2015, there are some technical and legal defects viz.,

(i) there is no F.M. Sketch and Measurement for Plan Marked

Channel and for the Plan Marked Channels, the same will not be

shown in the F.M. Sketch and that (ii) Plan Marked Channel had not

come into ambit of Public Works Department and this type of

channel will be maintained by the Revenue Department and farmers

by 'Kudimaramath Scheme' and the Plan Marked Channel would not http://www.judis.nic.in

come into purview of Public Works Department and further that, the 53 Tamil Nadu Protection of Tanks and Eviction of Encroachments Act,

2007, does not possible to issue eviction notice to the Petitioner

under the said Act.

30.The version of the 3rd Respondent (erstwhile District

Collector, Kancheepuram) is that the 'Approvals' and permissions

were afforded upon perusal of 'A' Register, F.M.B., records available

with the authorities concerned and that the Village Map was not

perused or noticed and also that, it is not a water channel and it is

only Plan Marked Channel is 3' width and 1 ½' depth which supply

excess water from the lake to agricultural fields down the lake and

the supply of water through this channel is restricted for a short

period. Further, none of the authorities including and not restricted

to Siruseri Panchayat had complained of existence of any water

channel or intermeddling of the same.

31.It comes to be known that for the 2nd Petitioner's proposal

in 14 acres, the 6th Respondent/Director of Town and Country

Planning, Chennai had given a technical clearance on 08.12.2014

and the 7th Respondent/Member Secretary, Mamallapuram Local

Planning Authority had granted Planning Permission No.3 (1 to

8/2015) dated 06.03.2015 and that the 2nd Petitioner had developed http://www.judis.nic.in

and completed the first phase as approved by the 6th Respondent. 54

In respect of the additional proposal of the 2nd Petitioner with an

additional Survey No.229/3B (submitted through the 7th Respondent

to the 6th Respondent), while scrutinising the first phase and the

second phase additional construction of the 2nd Petitioner, there was

no such alleged Vaikal/Canal existing at the time of inspection by

the 7th Respondent.

32.It transpires that in respect of the Petitioners' site about 14

acres in Survey Nos.147/2, 148/3B, 149/1, 2B; 166/1A, 1B, 1C, 2A,

166/2B, 3; 169/1, 2; 170/1, 2; 171/1, 2, 3, 171/4; 172, 173/1, 2;

177/4, 5; 178/1, 2, 3A, 3B; 179/1B, 2A, 179/2B, 181/1, 2; 182/2 –

(56793.44 m2), technical clearance was given by the 6th

Respondent/Director of Town and Country Planning, Chennai dated

06.03.2015 and in respect of the 2nd Petitioner's proposal for second

phase construction submitted to the 6th Respondent on 28.02.2015

with an Inspection Report. While scrutinising the said Building

Approvals for the second phase construction by the 2nd Petitioner,

there was no such alleged canal (Vaikal) existing in the site at the

time of inspection by the 7th Respondent and further that, the NOC

was issued by the 5th Respondent/Tahsildar, Thiruporur Taluk on

23.04.2014 for the entire Lands.

http://www.judis.nic.in

33.In this connection, it may not be out of place for this Court 55

to make a mention that the Government of Tamil Nadu had

accorded his Revised consent/Nod for the Mamallapuram Local

Planning Authority Master Plan as per G.O.(Ms.)No.287 dated

08.07.2004 that the Siruseri Village barring few survey numbers

was declared as 'Urbanisable Use Zone' and the 'Agricultural Use

Zone' was declared as 'Nil'. The said Master Plan was approved by

the State Government in G.O.Ms.No.153, Housing and Urban

Development (UD4 (2)) Department, dated 20.06.2013 which

classified the 2nd Petitioner's Land as 'Mixed Residential Zone' from

the 'Urbanizable Use Zone' and that the Agricultural Zone was

declared as 'Nil' and the entire Siruseri Village was permitted to be

developed as Residential and Commercial Buildings. Moreover, as

per G.O.Ms.No.1730, Rural Development and Local Administration

Department, dated 24.07.1974 allowable use zone is permitted.

34.The 8th Respondent (as Plaintiff) had instituted the Suit in

O.S.No.579 of 2014 on the file of the Learned District Munsif,

Chengalpet against the 1st Petitioner wherein he had sought a relief

of permanent injunction restraining the Defendant viz., M/s.XS Real

Properties Private Limited (1st Petitioner in W.P.No.4864 of 2016),

his men, agents etc. causing disturbance from using the water canal

showed in the Village Map and rough sketch filed by him and also http://www.judis.nic.in

sought the relief of Mandatory Injunction (in respect of 'B' 56

Schedule) in directing the Defendant (1st Petitioner) to clear the wire

fencing on the water canal situated in Siruseri Village, Thiruporur

Taluk, Kancheepuram District comprised in Survey No.219 and

travelled upto Survey No.162 which is a Periya Eri Canal.

35.Further, the 8th Respondent/Plaintiff, in his Plaint, had

averred that he is the absolute owner of 'A' Schedule property

agricultural Nanja Lands situated in Siruseri Village, Thiruporur

Taluk, Kancheepuram District comprised in Survey Nos.181/3,

148/1, 148/2, 150/2 and is cultivating the said Lands by decades

and is paying the entire outgoings etc. Also that, according to him,

he along with other Land owners are using the canal for their

cultivation and it is the only access to him and other Land owners

for their access to have ingress and egress to the external world

and enjoying the same without any interference.

36.Moreover, the 1st Respondent, in his Additional Counter to

the present W.P.No.4864 of 2016, had averred that on account of

the obstruction to the irrigation canal by the Petitioners irrigation of

20 acres of Land belonging to the members of the 1st Respondent/

Sangam were affected and also that the paddy fields lying on the

south of the Petitioners property were totally affected. http://www.judis.nic.in 57

37.Before the trial Court, it is the stand of the 1st Petitioner/

Defendant that the 8th Respondent/Plaintiff should have impleaded

all the owners of Lands in Survey Nos.209, 211, 212, 179, 181,

163, 162, 157, 151, 149 and 148 as these owners can only

establish the fact that whether there is a Water Canal existing and

flowing from the Periya Eri in S.No.219 and travelling upto

S.No.162.

38.Besides this, the 1st Petitioner/1st Defendant, in its Written

Statement, at paragraph 10, had averred that in order to regularise

the developments in a proper environment, by providing the

required infrastructure, the Government had even drawn a Master

Plan as early as in 2004 vide G.O.Ms.287 dated 08.07.2004 bringing

about 40 villages under the planning area consisting of vast extent

of Lands so as to make them available for urban and industrial uses.

In 2004, the Government had declared that there is no agricultural

activity in the entire Siruseri Village and that in the Master Plan,

constitution of IT Corridor, CII's Knowledge Industry Township are

also included etc.

39.Apart from that, the 1st Petitioner/1st Defendant, at para 14

of its Written Statement, had as averred as under:

http://www.judis.nic.in

“There is no entry in the A register and 58

Field Measurement Book to show that there is a water canal running through the survey numbers alleged in the plaint and petition. There is evidence to show that the plaintiff ever cultivated the suit A schedule Lands with the aid of the water flowing through the alleged water canal. On the other hand the plaintiff has only been engaged in the sale of water drawn from his well and other adjacent owners' wells to various companies and institutions on commercial basis. He is not carrying on any agricultural activity on the properties alleged in the plaint. The plaintiff has abused his position as village Thalayari to fabricate documents to suit his present case. The plaint documents are all fabricated ones.”

40.The ingredients of the T.N. Town and Country Planning

Act, 1971:

40.1.At the outset, this Court pertinently points out that the

aim/purpose of the Town Planning Act is to streamline the

development of towns with a view to secure their present and future

persons amenities, convenience and sanitary aspects. While making

http://www.judis.nic.inof a Town Planning Scheme, the care and attention are to be 59

bestowed to the laying out and utilisation of neighbouring Lands

besides the subject matter of the scheme Land. As a matter of fact,

when new areas are included and the scheme is widened, the

Authorities are necessarily to publish it and to obtain a sanction

afresh.

40.2.Indeed, the Town Planning Scheme, Rules and

Regulations are framed for regulating the buildings mainly for

'Public Interest' and ordinarily, a Court will not interfere with it.

Moreover, the power to a planned Development of a city and to

regulate the building activity therein flows from the 'Police power of

the State'. Also that, the exercise of Governmental Power is justified

because of the fact that the same is necessary for Public Health,

safety, morals or general welfare and ecological considerations,

although unreasonable or unnecessary interfering and intermeddling

with the private ownership of properties may not be a justiciable

one. Undoubtedly, the aspect of 'sustainable development' is an

integral part of the term 'Life' as per Article 21 of the Constitution of

India.

40.3.It is to be remembered that the Town Planning

Legislation is enacted for the purpose of 'Regulation of Land use' so http://www.judis.nic.in

that haphazard development of a Town may be prevented as per 60

decision in M/s.D.L.F.Qutab Enclave Complex Educational

Charitable Trust V. State of Haryana, AIR 2003 SC 1648 at

special page 1650.

40.4.Insofar as Section 24 of the Tamil Nadu Town and

Country Planning Act, 1971 is concerned, it is to be pointed out that

this Section pertains to the consent of Government to the

publication of notice of preparation of the regional plan, the Master

Plan or the new Town Development Plan as the case may be.

Section 25 of the Act speaks of 'Giving of consent by the Director of

Town and Country Planning, Chennai to the publication of notice of

the preparation of the Detailed Development Plan by the Local

Planning Authority'.

40.5. Section 26 of the Act, enjoins the publication of the

preparation of the regional plan, the Master Plan or the new town

development plan. After receipt of consent from the Government for

the Master Plan, it should be published for inviting objections and

suggestion from the public. Resting upon the suggestion and

objection and also hearing the objections, if an amendment is

necessary, the Planning Authority shall incorporate the same in the

Master Plan and to project the same for approval of the http://www.judis.nic.in

Government.

61

40.6. Section 27 of the Act concerns with the 'Publication of

Notice of the Preparation of the Detailed Development Plan to be

prepared under the Tamil Nadu Town and Country Planning Act,

1971'. Section 28 of the Act refers to the 'Approval by the

Government of the regional plan, the Master Plan or the new town

development plan with or without modifications under this Act'.

Section 29 deals with 'Approval by the Director of Town and Country

Planning of the Detailed Development Plan'.

41.Scenario of Decisions:

41.1.At this stage, it is worthwhile to quote the Full Bench

Decision of this Court in T.K.Shanmugam, Secretary, C.P.I. (M)

North Chennai District Committee V. The State of Tamil Nadu

represented by its Secretary to Government, Department of

Revenue, Fort St. George, Chennai, 2015 Writ L.R. 1029 at

special pages 1047 to 1051, wherein at paragraphs 32, 34 to

36, 40, 41, 44, it is observed and held as follows:

“32. Whatever approach is taken, the fundamental emphasis is on communal rather than private rights. In cases where communal rights protector negates the rights of some, it implies a http://www.judis.nic.in denial of the application of the Public Trust Doctrine. Natural resources have 62

traditionally been found either under the sovereignty of a particular state or in the so-called global commons. Where the resources are held by a state, the essence of the Public Trust Doctrine is that the state or governmental authority, as trustee, has a fiduciary duty of stewardship of the publics environmental capital. Thus it is the duty of the State to protect, conserve and augment traditional water retaining structures.

34. In Michigan Law Review, Vol.68, No.3 (Jan.1970), Pages 471-566, Prof. Sax said that three types of restrictions on governmental authority are often thought to be imposed by the public trust doctrine, namely:

'1. the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public;

2. the property may not be sold, even for fair cash equivalent;

3. the property must be maintained for particular types of use (i) either traditional uses, or (ii) some uses particular to that form of resources.

35. The Hon'ble Supreme Court in Indian Council for Enviro-Legal Action v.

Union of India [(1996) 5 SCC 281], held http://www.judis.nic.in that there should not be development at the cost of environment and vice versa, 63

but there should be development while taking due care and ensuring the protection of environment.

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.

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 http://www.judis.nic.in of these natural resources such as tanks, 64

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 http://www.judis.nic.in

such disuse has occurred. The plethora of 65

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 http://www.judis.nic.in Government for any public purpose is 66

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. ...... 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 http://www.judis.nic.in making laws and further to be kept in 67

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.....”

41.2.Further, this Court aptly points out the decision in

G.Chandrasekar and another V. State Government of Tamil

Nadu represented by its Secretary, Department of Revenue,

Chennai and others, 2015-4-L.W.103 at special page 105

wherein at paragraphs 10 & 11, it is observed as under:

“10. The lakes, rivers, forests are national wealth. They belong to the community and the same have to be protected for the benefit of the people and for the posterity. It is apt to quote the observations of the Supreme Court rendered in Intellectuals Forum, Tirupathi Vs. State of A.P. and others1, which reads as under :

86. The judicial wing of the country, more particularly this Court, has laid down a plethora of decisions asserting the need for environmental protection and conservation of natural resources. The environmental protection and conservation of natural resources has been given a status of a fundamental right and brought under Article 21 of the http://www.judis.nic.in Constitution. This apart, the directive principles of State policy as also the 68

fundamental duties enshrined in Part IV and Part IV-A of the Constitution respectively also stress the need to protect and improve the natural environment including the forests, lakes, rivers and wildlife and to have compassion for living creatures. xxxxxxxxxxxxxx

91. It is true that the tank is a communal property and the State authorities are trustees to hold and manage such properties for the benefits of the community and they cannot be allowed to commit any act or omission which will infringe the right of the Community and alienate the property to any other person or body.

11. It is the bounden duty of each and every citizen, particularly the Government, to protect the national wealth, which is in the form of water canal, pond, tank, forest, etc., and as such, no such direction can be given which erodes the national wealth and causes climatic hazard to other people and also to the posterity. However, in the facts of the case, if, on enquiry, it is found that the petitioners are hapless poor people, having no Land even for house sites, the authorities are expected to consider the same and make an alternative arrangement so as to provide at least basic need of shelter. Needless to state that no eviction order can be passed http://www.judis.nic.in without taking a final decision on the 69

aforestated representations / explanations made by the petitioners.”

41.3.In the decision of the Hon'ble Supreme Court in State of

Maharashtra and others V. Atma Ram Sadashiv Dongarwar

and others, (1978) 4 Supreme Court Cases 170 at special

page 171, wherein it is held as under:

“(1) The provisions of the Abolition of Proprietary Rights Act (Sections 45 to 47) make it clear that the occupancy tenants and malik-makbuza (Zamindar) who were appropriating the water of the Tank for raising paddy and sugarcane crops before the date of vesting under the Act were to continue to enjoy those rights without any let or hindrance even after the date of vesting. (Para 17) (2) Section 239 of the M.P. Land Revenue Code provides that all rules, assessments, appointments and transfers made, notifications and proclamations issued, authorities and powers conferred, farms and leases granted, records-of-rights and other records framed or Confirmed, rights acquired, liabilities incurred, times and places appointed, and other things done under any of the enactments hereby re pealed shall, so far as may be, be deemed http://www.judis.nic.in to have been respectively made, issued, 70

conferred, granted, etc., under the Code.

Section 239 thus did not destroy the rights of the irrigation enjoyed by the respondents. On the contrary, the use of words “all rights acquired" occurring in the section are comprehensive enough to take in the irrigation and other rights acquired by the tenants and Malik Makbuza under the Abolition of Proprietary Rights Act which was repealed by Section 238 of the Code. The right of free irrigation which accrued to the respondents under the Abolition of Proprietary Rights Act was not only not destroyed but was also saved by section 239 of the Code and is, therefore, to continue to be enjoyed by the respondents without being affected, curtailed or whittled down in any manner despite the repeal of Sections 45 to 47 of the Abolition of Proprietary Rights Act by the Code. (Paras 18 and 19)”

Further, in the aforesaid decision at page 180 & 181, at

paragraphs 20 and 21, it is observed as follows:

“20.The last contention advanced by the learned counsel for the appellants that the Government was competent to

http://www.judis.nic.in recover water charges by virtue of the provisions contained in section 26 of the 71

Central Provinces Irrigation Act, 1931 is also devoid of substance. The said section, it would be noticed, vests in the Government all rights in the water or any river, natural stream or natural drainage channel, natural lake or other natural collection of water. As in the instant case, it is clear not only from the averments of the respondents but also of the appellants themselves that the tank in question is not a natural lake, section 26 of the Central Provinces Irrigation Act, 1931 can be of no avail to the appellants and the water rights which could be acquired by custom as indicated in Harrop v. Hirst, (1868) LR 4 Exch 43, and were in fact acquired by custom by the respondents in the instant case as shown above and were recognised and preserved both under the Abolition of Proprietary Rights Act and the Code cannot in any manner be interfered with by the appellants.

21.The importance attached to the need for recognition of the right to irrigation may also be gleaned from the following observations made by Chief Justice Callaway in Allen v. Petrick (69 Mont. 373, 377, 379, 380; 22 Pac 451, 452, 453; 1924):

The appropriator does not own the water.... He has a right of ownership in its http://www.judis.nic.in

use only. The use of water in Montana is 72

vital to the prosperity of our people. Its use, even by an individual, to irrigate a farm, is so much a contributing factor to the welfare of the State that the people, in adopting the Constitution, declared it to be a public use.”

41.4.Also, this Court worth recalls and recollects the decision

in Lakshminarasu Avadhanulu V. Secretary of State for India,

1918-Vol.II-L.W.-1 at special page 2, wherein it is held as

under:

“(I) Every riparian owner has the right to enjoy without disturbance the natural advantages arising from the situation of his Land including the right to irrigate his Land from the natural stream provided he does not by exercise of such right cause material injury to other like owners.

Such riparian right extends not merely to lifting the water from the natural stream and carrying it to the Land direct but also to strong it in wells in his Land temporarily as a measure of prudence before actual distribution.

(II) The Government has no right to levy a separate water cess for the use http://www.judis.nic.in of the water of the river in irrigating a 73

riparian Land irrespective of the fact whether the bed of the stream belongs wholly to Government or partly to Government and partly to the riparian owner or wholly to the riparian owner.

Secretary of State for India v.

Janakirmayya (1) and Ambalavana Pandara Sannadhi v. The Secretary of State for India (2): Referred to.

(III) All Land must be regarded as riparian Land (a) when it is within the natural watershed of the stream, (b) the title to which is in one owner and (c) the boundaries of which have been established with the requirements of the conditions which will best serve the interests of individual Land owners; but in India, riparian Land must be confined to Land which is on the bank of the stream and which extends from that bank to a reasonable depth inLand.”

41.5.Moreover, in the decision Secretary of State V.

Kannepalli Jankiramayya and others, AIR 1914 Madras 534,

wherein it is observed as under:

“Madras Act 3 of 1905 cannot be used to interpret Act 7 of 1865; it does http://www.judis.nic.in not make the river or water therein Government property. Under the 74

Customary law of the country, river-

water belongs to the owner of the estate through which it passes subject to the claims of the proprietors below.

The Government have a right to regulate the distribution of water among ryotwari villages without causing injury to any of them. But they have no such right in zamindaris 32 Mad.141, not Appr.; 26 Mad. 66; 3 I.C. 456 and 6 I.C. 199, Dist.”

41.6.In the decision of the Hon'ble Supreme Court in

Ramkanya Bai and another V. Jagdish and others, 2011 (7)

Supreme Court Cases 452 at special page 462 wherein at

paragraphs 30 & 31, it is observed and held as under:

“30.Wajib-ul-arz is thus the record of customs in a village in regard to (i) easements (including the right to irrigation and right of way); and (ii) the right to fishing in privately owned/held Lands and water bodies. The entries therein could be modified in the manner provided in sub-section (5) of section 242 of the Code. Though the Code provides for maintaining a record of all customary easements imposed upon privately held Lands and water bodies, significantly the Code does not provide the remedies http://www.judis.nic.in available in the event of disturbance or 75

interference with such easements recorded in Wajib- ul-arz, as the remedy is only way of a suit before the civil court.

31.Customary easements are the most difficult to prove among easements.

To establish a custom, the plaintiff will have to show that (a) the usage is ancient or from time immemorial; (b) the usage is regular and continuous; (c) the usage is certain and not varied; and (d) the usage is reasonable. If the Wajib-ul-arz (where such a record is maintained) records or shows the customary easement, it would make the task of civil courts comparatively easy, as there will be no need for detailed evidence to establish the custom. Be that as it may. If the remedy for violation of a customary easement recognized and recorded in the Wajib-ul-arz is by way of a civil suit, it is inconceivable that in regard to violation of a customary easement not recognized or recorded in the Wajib-ul-arz, the remedy would be only by way of a summary enquiry by the Tahsildar under section 131 of the Code, and not by a suit, before the civil court.”

41.7.In the decision S.Venkatesan V. Government of http://www.judis.nic.in Tamil Nadu, represented by its Secretary, Municipal 76

Administration and Water Supply Department, Fort St.

George, Chennai and others, 2009-4-L.W. 459 wherein at

paragraph 17 it is observed as under:

“17. The court is aware of the need of the public for a new bus stand, in view of the congestion of the old bus stand which is located inside the municipal town. The court is also aware of the need to protect the water bodies, particularly, Erys, Ponds, Lakes, etc. In a book, by name, The Ery Systems of South India authored by T.M.Mukundan, an Ery is described as follows:-

"An ery (Fig.1) or tank is a reservoir of water contained behind earthen bunds or embankments. Here the bund surrounds the water on three sides. The fourth side is open to the catchment from which water flows down to collect in the ery. Normally the middle of the bund is the deepest portion of the ery and the depth decreases as we go away from the middle of the bund to the sides or flanks of the bund."

According to the author, the main function of the Ery is for irrigation of field for cultivation, viz., the ayakat Lands of the Ery. The water flow is regulated by sluice. The Ery also as an arrangement for overflow of water. He also states that the Erys are normally inter-connected where excess water will goes from one Ery to another Ery. The classification of Ery is as follows:-

"Erys which are fed by channels diverted from rivers are known as "System erys"

http://www.judis.nic.in or riverfed erys. Erys which have their 77

own catchment are called "Non-system erys or rainfed erys."

In the present case, the Tindivanam Ery appears to be a rainfed Ery as can be seen from the topography. The author has traced the history of the Ery System under the pre-British India, then under the British System and the Decay of Ery Irrigation System due to passage of time.

However, he hasten to add that subsequently the Government has through the Public Works Department have started to maintain the Erys and irrigation. There is a constant demand for water resources to cultivate Land for food to feed the hungry millions of this country and Lands to provide shelter for the people. In the present case, the bus stand proposal is based on municipality's demand for a public cause. The two needs have to be harmonized so that there is a sustained development. The development on one side should not sound the death knell for another (i.e.) Ery system.”

4.1.8.In the decision Gann V. Fres Fishers of Whitstable

reported in (1865) 11 Halsbury Law Cases 192, it is observed

that 'the bed of all navigable rivers where the tide flows, and

all estuaries or arms of the sea, is by law vested in the

crown and in fact, the said ownership of the crown is for the

benefit of the subject, and the same cannot be utilised in any

way so as to interfere with the right of navigation etc.' To put

it succinctly, the State Government holds the 'Water bodies in Public

Trust' for the welfare of present and future generations to come. http://www.judis.nic.in 78

41.9.In the decision of the Hon'ble Supreme Court in Hinch

Lal Tiwari V. Kamala Devi and others, (2001) 6 Supreme

Court Cases 496 at special page 497, it is held that

'Government including Revenue Authorities are duty bound

to clean and develop them so that ecological disaster may be

prevented and a better environment provided to people at

large.' 41.10.In the decision Jaswant Singh Mathurasingh V.

Ahmedabad Municipal Corporation, AIR 1991 Supreme Court

2130 at special page 2131, wherein it is observed as under:

“A tenant or a sub-tenant in possession of a tenement in the Town Planning Scheme is a person interested within the meaning of Rules 21(3) & (4) of the Rules. But he must be in possession of the property on the crucial date i.e. when the town plan scheme is notified in the official gazette. Every owner or tenant or a sub-

tenant, in possession on that date alone shall be entitled to a notice and opportunity. It is settled that before depriving a person of his property or imposing any further liability, the http://www.judis.nic.in principles of natural justice require prior notice and reasonable opportunity to 79

him to put forth his claim or objections.

Rule 21(3) speaks of special notice of at least three days duration. It is inconsonance with and in compliance of the principles of natural justice. The legislature thus made a distinction between the general notice envisaged in sub-rule (1) of Rule 21 and special notice under sub-rule (3) of the Rule 21, which was in addition to the former.

The purposes of clauses (3) and (4) of Rule 21 are obvious and the consequences that would ensue are self-evident. The issuance of notice under sub-rule (3) and giving of sufficient opportunity under sub-rule (4) are self evident to subserve the basic concept of fair and just procedure.

These sub-rules subserve the principles of natural Justice to avoid arbitrariness offending Article 14 and to be Just and fair procedure satisfying the mandate of Article 21. Non-observance otherwise would render the scheme illegal. No provision of a statute or Rule would be rendered surplusage or otiose. Town Planning Officer shall give to a person affected by the scheme sufficient opportunity to state his views and shall http://www.judis.nic.in not give any decision till he duly 80

considers the representation, if any. The issuance of notice under sub-rule (3) and giving of sufficient opportunity under sub-rule (4) are self-evident to subserve the basic concept of fair and just procedure. Therefore, the issuance of special notice of at least three clear days duration and giving sufficient opportunity to the person affected to put forth his views of the scheme are mandatory and non-compliance thereof vitiates the validity of the final scheme.”

Further, at paragraph 14 of the aforesaid decision at page

2136, it is observed as follows:

“14.The principle of Waiver connotes issuance of notice and non-response thereto. Everyone has a right to waive an advantage or protection which law seeks to give him. Undoubtedly, if a notice is issued and no representation is made by either the owner, tenant or a sub-tenant, it would amount to waive the opportunity and such person cannot be permitted to turn round, after the scheme reaches finality, to say that :here is non-

compliance of sub-rules (3) and (4)of Rule 21. It would amount to putting http://www.judis.nic.in premium on dilatory and dishonest conduct. ” 81

41.11.In the decision T.S.Senthil Kumar V. Government of

Tamil Nadu, rep. By its Secretary, Public Works Department,

Chennai and others, (2010) 3 MLJ 771 wherein it is held as

under:

“The Act does not specifically indicate that the encroachers do not have a right to be heard. Notice to be issued to the alleged encroacher to the effect that the survey indicates that the place in his/her occupation is an encroachment and the notice in Form-

III of the Rules may be issued. On receipt of the said notice, the encroacher may give his/her objections relating to the classification of the land

in his/her occupation and the nature of the encroachment within a period of two weeks and the authorities shall consider the objections and pass appropriate orders, in accordance with the provisions of the Act, giving time to the encroachers to remove the encroachment.”

http://www.judis.nic.in 41.12.In the decision of the Hon'ble Supreme Court in Jagpal

Singh and others V. State of Punjab and others, (2011) 11 82

Supreme Court Cases 396 at special page 397 wherein it is

held that 'Orders issued by all State Governments permitting

Gram Sabha land to private persons and commercial

enterprises on payment of money are illegal and should be

ignored'.

42.One cannot brush aside a very vital fact that in Democratic

Polite, the 'Community' or the 'Persons' being sovereign the exercise

of discretion by any Administrative or an Executive Authority is to

be tested based on 'Rule of Law'/'Fairness' or 'Justice' because of

the reason that he/it is 'Accountable' for the action in issue.

43.It may not be out of place for this Court to make a

significant mention that the exercise of discretion by the

Administrative or Quasi Judicial Authorities cannot be goaded/

guided owing to an 'Exigency'. Further, the Administrative or

Executive Authorities are not expected to exercise their discretion

cementing on their special likings/peculiar dispositions, in the

considered opinion of this Court.

44.It is to be remembered that an individual may waive a

right either expressly or in an implied manner. Also that, in a given http://www.judis.nic.in

case, he is disentitled to secure an equitable relief especially when 83

he allows a thing to come to an 'Irreversible Situation'.

45.Further, the term 'Waiver' is a 'Contractual one' and may

give rise to a 'Cause of Action'. It is an agreement between the two

parties and a person fully aware of his rights had agreed not to

assert a right for consideration. However, the word 'Estoppel' is not

a 'Cause of Action', but is a 'Rule of Evidence'. If a plea of 'Waiver'

is taken the onus is on a person pleading the same to exhibit that

an agreement waiving the right in consideration of some

compromise came into being. By the conduct of a person, a

statutory right may also be waived. If a person has waived his right

in respect of an equitable remedy, then, such conduct precludes and

will operate as 'Estoppel' against him as regards the assertion of a

right in the subject matter in issue. Be it noted that when a power is

showered under a Statue to perform a certain thing in a particular

way, the thing must be done in that way or not at all.

46.As regards the pending suit in O.S.No.579 of 2014, this

Court is not expressing any opinion on the merits of the matter

wherein a plea is taken on behalf of the 1st Petitioner/Defendant

that the owners of Lands in Survey Nos.209, 211, 212, 179, 181,

163, 162, 157, 151, 149 and 148 can only prove that whether there http://www.judis.nic.in

is a water Canal existing and flowing from the Periya Eri in S.No.219 84

and travelling upto S.No.162 etc. Similarly, it is open to the

respective parties to workout their remedies in respect of Criminal

Proceedings before the Competent Forum in accordance with Law

and hence, this Court is not expressing any opinion one way or

other in this regard.

47.As far as the present case is concerned, in the sworn

Counter Affidavit of the 3rd Respondent (erstwhile District Collector,

Kancheepuram) dated 10.04.2018 at paragraph 3, it is, in a

crystalline fashion, mentioned that '... It could be seen that it is not

a water channel and it is only Plan Marked Channel etc.' Also, the

present District Collector, in his Counter, at paragraph 4, had

averred that '.. None of the authorities have even raised a little

finger as to the existence of Detailed/Plan Marked Channel is not

fixed ad it could be varied'. Even the 5th Respondent/Tahsildar had

taken a stance that there is a Plan Marked Channel, passed through

Survey Nos.211, 212, 219, 180, 169, 166, 157, 149, 148, but the

same was not reflected in the Village Account. However, there was

no Field Measurement Book to reflect the same etc.

48.Be that as it may, in view of the admissions made by the

3rd Respondent (erstwhile District Collector – Member of the 7th http://www.judis.nic.in

Respondent and the present District Collector) that the Village Map 85

was not perused or noticed and none of the authorities had raised

even a little finger in regard to the existence of the Detailed/Plan

Marked Channel and also this Court, taking note of the fact that the

Tahsildar, Thiruporur had submitted a Report dated 16.07.2015 and

02.09.2015 wherein it is mentioned that from the Map that the

particular channel (Plan Marked Channels) in Siruseri Village starts

from big lake in survey No.219 and flows through the survey

Nos.211, 212, 219, 180, 169, 166, 157, 149, 148 in Siruseri Village

and the water from the lake flows through the channel and it is to

be used for cultivation to the wet Lands etc. and further that, as per

the Map, the Channels (Plan Marked Channels) flows through the

Lands purchased by the said company in Survey Nos.166/3, 169/1,

169/2, 178/1, 178/3A, 179/1B, 179/2A, 179/2B but the channels

were closed and that the said Company constructed multistoried

building in Survey No.166/3 and apart from that, there is no path or

cart track in the said Land or Village Accounts, this Court is of the

earnest opinion that there is a costly lapse/act of commission or

glaring omission on the part of the concerned Authorities in not

pointing out the Channel shown in the Village Map of Siruseri

Village, Thiruporur Taluk, Kancheepuram District at the relevant

point of time and it is pellucidly clear that the 'Public Trust Doctrine'

was given a go by the concerned Authorities in a nonchalant http://www.judis.nic.in

manner. Also that, when the Rejoinder of the 5th Respondent/ 86

Tahsildar, Thiruporur mentions that the maximum Ayacut of Siruseri

Tank was converted into Residential Plots, I.T. Park etc. and

remaining lands are vacant, no convincing/satisfactory/tangible

explanation was forthcoming on the part of the concerned

Authorities as to how in Mamallapuram Master Plan, the entire

Siruseri Village barring few survey numbers was declared as

'Urbanisable Use Zone' and further that, 'Agricultural Use Zone' was

declared as 'Nil'. Also that, just because the Water Channel/Vaikal/

Canal was put into disuse or there is no water in it and the same is

not utilised for availability of water, yet, by no stretch of

imagination, it can be said that the said Channal/Vaikal/Canal had

lost its original identity, as opined by this Court. Especially keeping

in mind Article 51A(g) and (i) of the Constitution of India, which

enjoins as follows:

(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;

(i) to safeguard public property and to abjure violence.”

49.Furthermore, in view of the fact that the 2nd Petitioner had

completed the construction of 114 apartments of phase 1 of the http://www.judis.nic.in project in full and that 75 customers had taken possession, besides 87

some of them had already occupied their apartments etc., and

because of the fact that the 2nd Respondent/Executive Engineer,

W.R.O. (P.W.D), Lower Palar Basin Division, Kancheepuram had

taken a plea that the Plan Marked Channel does not come under the

purview of P.W.D. and that this type of Channel will be maintained

by the Revenue Department and farmers by 'Kudimaramath

Scheme' and to find out a suitable, right, practical, pragmatic,

purposeful, meaningful and rational Solution i.e., Formation of Catch

Drain cum Field Channel (0.45 m x 0.60m) inner dimension along

the outer periphery of the Petitioners, to be formed by the 1st

Petitioner at their own expenses, of course, under the supervision of

Public Works Department or to maintain the Channel marked in the

Village Map of Siruseri, the 3rd Respondent/District Collector is

hereby directed to reconsider the entire gamut of the subject

matter of the controversies revolving around the Writ Petition, De

novo, after analysing the same in threadbare manner, by looking

into the plea of the 1st Respondent/Sangam that irrigation of the 20

acres of Land belonging to the members of the 1st Respondent/

Sangam were affected and likewise the paddy fields lying on the

south of the Petitioners' property were affected etc. and keeping in

mind the Riparian Rights of Agriculturists of the 1st Respondent/

Sangam and also the developmental aspect of Urbanization on one http://www.judis.nic.in

side and not to bury/dispense with the practice of Vaikal/Channel 88

Water being used once and for all. Viewed in that perspective, this

Court is perforced to interfere with the impugned order of the 3 rd

Respondent/District Collector, Kancheepuram dated 02.09.2015 and

sets aside the same, in furtherance of substantial cause of Justice.

http://www.judis.nic.in 89

Conclusion:

50.In fine, the Writ Petition is disposed of. The impugned

order of the 3rd Respondent/District Collector, Kancheepuram dated

02.09.2015 is set aside by this Court for the reasons assigned in

this Writ Petition. The 3rd Respondent/District Collector,

Kancheepuram is directed to conduct a De novo/Fresh Enquiry into

the Representation of the 1st Respondent/Sangam dated 06.04.2015

and to pass a reasoned speaking orders in qualitative and

quantitative terms, after affording necessary opportunities to the

Petitioners, Official Respondents and the 8th Respondent/Plaintiff to

substantiate their version through oral and documentary evidence

by examining necessary witnesses. In the fresh Enquiry, the 3rd

Respondent/District Collector shall ensure that the Official Village

Map of Siruseri Village, Thiruporur Taluk, Kancheepuram District is

marked through the Official Witnesses or through Witnesses to be

produced by the parties as an Exhibit/Document to show the

existence of a Detailed Canal/Vaikal/Channel, as claimed by the

Executive Engineer, W.R.O. (P.W.D.), Lower Palar Basin Division,

Kancheepuram. Further, the 3rd Respondent/District Collector,

Kancheepuram, quite in the fitness of things, shall appoint any

Officer not below the rank of Taluk Surveyor as Survey Officer for http://www.judis.nic.in

conducting a spot Inspection/Survey in respect of Survey Nos.166/ 90

3, 169/1, 169/2, 178/1, 178/3A, 179/1B, 179/2A, 179/2B, 209,

211, 212, 179, 181, 163, 162, 157, 151, 149 and 148 to find out

(i) as to whether on ground the Water Channel existed/runs

through the aforesaid survey numbers and other relevant survey

numbers if any, having a bearing on the controversies in the

subject matter in issue; (ii) to ascertain whether the owners of the

Land in Survey No.147 and other survey numbers are basically

entitled to secure the right of way for an Ingress and Egress (as an

Easementary Right) with a view to move out/carry their Agricultural

Produce(s) etc. through the Land gifted by the 1st Petitioner as

regards cultivation; and the said Survey Officer is required to take

the assistance of concerned Officers of Public Works Department,

who are duty bound to assist him in carrying out the assigned task

and based on the said Report, shall pass a resultant follow up

prompt Order/Direction centering around the Writ Petition. The

aforesaid exercise shall be carried out by the 3rd Respondent/District

Collector, Kancheepuram within a period of four months from the

date of receipt of copy of this order, after affording necessary

opportunities to the respective parties, by adhering to the Principles

of Natural Justice. It is open to the respective parties to raise all

Factual and Legal pleas before the 3rd Respondent/District Collector,

so as to give a quietus in a Complete and Comprehensive manner to http://www.judis.nic.in

the controversies revolving around the Petition and also looking into 91

the averments of the 8th Respondent/ Plaintiff as well as the 1st

Petitioner/Defendant stand in O.S.No.579 of 2014 on the file of the

Learned District Munsif, Chengalpet. No costs. Consequently,

connected Miscellaneous Petitions are closed.

[M.V., J.] [R.P.A. J.]

14.02.2019

Speaking Order : Yes

Index : Yes

Internet : Yes

Sgl

http://www.judis.nic.in 92

To

1.The General Secretary Anaithu Vivasaya Sagupadi Payirkal Urpath Vivasayigal Sangam Reg. No.190/2009, No.5, Vaithiyar Street, Periyakanchipuram Kanchipuram District,

2.The Secretary to Government, State of Tamil Nadu, Public Works Department, Fort St. George, Chennai – 600 009.

3.The District Collector, District Collector's Office, Kancheepuram, Kancheepuram District.

4.The Revenue Divisional Officer, Kancheepuram, Kancheepuram District.

5.The Tahsildar, Kancheepuram Taluk Office, Kancheepuram, Kancheepuram District.

6.The Director, Directorate of Town and Country Planning No.807, Anna Salai, Chennai – 600 002.

7.The Member Secretary, Mamallapuram Local Planning Authority, Five Radhas Commercial Complex, Mamallapuram – 603 104.

8.The Secretary to Government, Housing and Urban Development Department, Chennai – 9.

9.The Government Advocate, High Court, Madras.

http://www.judis.nic.in 93

M.VENUGOPAL, J.

AND

R.PONGIAPPAN, J.

Sgl

ORDER in W.P.No.4864 of 2016

14.02.2019

http://www.judis.nic.in