(Prayer: Second Appeal filed under Section 100 of the Code of Civil Procedure, against the Judgement and Decree dated 06.07.2004 made in O.S.No.442 of 2003, on the file of the Principal District Munsif Court, Tenkasi which was confirmed by the Judgment and Decree dated 24.06.2005, in A.S.No.118 of 2004, on the file of the Principal Subordinate Judge, Tenkasi.)
Common Judgment:
1. The first defendant, who lost the legal battle before both the Courts below, has come forward with this Second Appeal challenging the Judgment and Decree dated 24.06.2005 passed in A.S.No.118 of 2004, on the file of the learned Principal Subordinate Judge, Tenkasi, by confirming the Judgment and Decree dated 06.07.2004, passed in O.S.No.442 of 2003, on the file of the learned District Munsif, Tenkasi.
2. Heard the learned counsel appearing for both sides and perused the materials available on record.
3. The respondents 1 to 4 as plaintiffs filed a suit in O.S.NO.442 of 2003, for declaration that the cancellation of assessment order in Na.Ka.No.10209/2003.A1, dated 25.11.2003 is ab initio, illegal and void and declaration that the plaintiffs are the owners of the property and restraining the defendants to demolish the property and injunction restraining the second defendant not to disconnect the service connection and mandatory injunction to make a building construction in the suit property and directing the second defendant to give re-connection and also costs by stating that the first plaintiff's father-inlaw and 2 to 4 plaintiffs' paternal grandfather Vaigunda Thevar has made a brick building house with thatched roofing and did his tea shop. After his lifetime, his only son, who is the first plaintiff's husband and 2 to 4 plaintiffs' father viz., Esakki has conducted the tea shop. After his lifetime, the plaintiffs are running the tea shop at Door No.54 A and 54B and assessed the tax. In 1981, they had rebuilt the building and New Door number was given as D.Nos.67 and 68. At the time of construction, western wall of this building is a compound wall of Tenkasi Vinnagara Perumal Temple and they had given consent, after receipt of Rs.10,000/-. During the life time of Esakki, he paid the tax. After that, the plaintiffs paid the tax. The first defendant sent a notice stating that the property is Government Poromboke land and they cancelled the assessment of 19813, 19814 and 19815 and that has been served on 04.12.2003. They proclaimed that they have to demolish the building. Hence, the plaintiffs are constrained to file the suit for declaration that the notice in Na.Ka.No.10209/2003.A1, dated 25.11.2003 is not valid, illegal, void and ab-initio and also for injunction.
4. During the pendency of the suit, the building has been demolished and the electricity service connection has been disconnected and hence, the plaintiffs have amended the plaint for directing the first respondent to make construction and directing the second respondent to give electricity service connection.
5. Resisting the same the first defendant filed a written statement by stating that already encroachment has been removed and the property has been taken possession. The plaintiffs have made construction without any right in the property. Hence, he prayed for dismissal of the suit.
6. The second defendant filed a written statement by stating that on 08.12.2003, service connection has been disconnected, since the first defendant intended to demolish the superstructure considering the convenient and safety of the public. On 08.12.2003, the plaintiffs sent a telegram stating that no disconnection, suit follows. However, before filing suit, service connection has been disconnected. The service connection Nos.L.421 and L.588 stand in the name of Esakki, S/o Vaigunda Thevar. Hence, he prayed for dismissal of the suit.
7. The trial Court, after considering the averments both in the plaint and written statement and the arguments of both sides, has framed the necessary issues and dismissed the suit for granting declaration and injunction has been granted. Against which, the first defendant preferred an appeal before the first appellate Court and the first appellate Court also dismissed the appeal by confirming the decree and judgment passed by the trial Court. Against which, the present Second Appeal has been filed by the first defendant.
8. At the time of admission of the Second Appeal, the following Substantial Questions of Law have been framed:
1.Whether the show cause notice is necessary for removal of the encroachment after cancellation of the tax assessment made in order No.16209/2003, dated 25.12.2003 under the Land Encroachment Act?
2. Whether the encroachers are entitled to put up construction in demolition area under the Land Encroachment Act?
9. The learned Counsel appearing for the appellant would submit that the plaintiffs are not the owners the property. The property is in a road poromboke and hence, they are entitled to revoke or cancel the property assessment order without notice. That factum was not considered by the trial Court. The property assessment order was cancelled on 25.11.2003 itself. Since the plaintiffs are the encroachers, they could be evicted. For that reason, the learned Counsel would rely upon a decision in A.Thayal Nayagi Vs. Union of India owning Southern Railway, represented by its General Manager, Chennai and Others reported in (2005)1 MLJ 453 and prayed for setting aside the decree and judgment passed by both the Courts below.
10. The learned Counsel appearing for the respondents would submit that the Land Encroachment Act is not applicable to the Natham property and the suit property is Natham property. For that reason, he would rely upon a decision in A.K.thillaivanam and another Vs. The District Collector, Chengai Anna District at Kancheepuram and Others reported in 1998-3-L.W.603 and in Krishnamurthy Gounder Vs. Government of Tamil Nadu represented by the District Collector, Cuddalore, South Arcot District and two others reported in 2002(3) CTC 221. The learned Counsel for the respondents would also rely upon Section 22 of the District Municipalities Act and would submit that what is meant by public street. Once the drains attached to any such street, public bridge of causeway and land, whether covered or not by any pavement, verandah, or other structure, which lies on either side of the roadway upto the boundaries of the adjacent property whether the property is private property or property belonging to the Government. He would further submit that the property is not a public street, because as per the Commissioner's report, there is a drainage. So, it is not a public road. He would further submit that the suit property is Natham property and the occupant is every right to maintain the suit.
11. The learned Counsel for the respondents would submit that the respondents also filed a cross objection and both the Courts below have not granted the relief of declaration of title to the property. Since the property is Natham property, the occupants are the owners of the property. Hence, the respondents are entitled for declaration of title to the suit property. That factum was not considered by both the Courts below. Hence he prayed for allowing of the cross objection and prayed for the suit to be decreed as prayed for in the plaint.
12. Considering the rival submissions made by the learned Counsel appearing on either side and a perusal of typed set of papers, it would show that it is an admitted case that the first respondent's husband and 2 to 4 respondents' father is Esakki and he has made a construction before 1981 and it was assessed tax. The electricity service connection was also stand in his name. It is also admitted that the appellant here has cancelled the property assessment i.e., Ex.A.1. Now the point has to be decided is as to whether Ex.A.1 is valid under law. It is pertinent to note that as per the version of the respondents, before Esakki made construction, his father Vaigunda Thevar was running tea shop in the suit place and the property tax was assessed and paid. But the description ofthe property, as per the plaint, it was specifically mentioned as Natham which is a follows:
9 Plot measuring East-West Southern side 24 feet; Norther side 10 feet; South-North Eastern side 84 feet; western side 86 feet comprised in Natham Survey No.700/8A1, situate at Tenkasi Municipality Ward No.27, Tenkasi Town and buildings constructed therein facing eastern side bearing Door Nos.67 (Old No.54-A) and 68 (Old No.54-B) Electricity Service connection Nos.L421 and L.588 along with borewell, within the following boundaries:
North - Plot of Shanmugavel;
East - Compound wall of Tenkasi Vinnakara Perumal Temple;
South - Pyol area of the said temple; and
West - South-North road side Vaarukaal.
13. According to the learned Counsel for the respondents, the total extent of entire Tenkasi town is situated in Gramanatham, which is more than 100 acres. Now the point to be decided is as to whether the Land Encroachment Act is applicable to the Gramanatham properties. The learned Counsel for the respondents would rely upon a decision in A.K.thillaivanam and another Vs. The District Collector, Chengai Anna District at Kancheepuram and Others reported in 1998-3- L.W.603, wherein in paragraph No.27, it was held as follows:
27. Thus it is obvious, the admitted classification of the land being a gramanatham, the land was never vested with the respondents nor they could take action under the Land Encroachment Act or any other enactment. The petitioners state they have exclusive right, title, possession since 1954 onwards. The respondents have no right to interfere with the peaceful possession and enjoyment of the land and their action in giving a complaint of the land and their action in giving a complaint for alleged offence under Section 420 of the I.P.C. is total misconception.
It was also relied upon by the later judgment in Krishnamurthy Gounder Vs. Government of Tamil Nadu represented by the District Collector, Cuddalore, South Arcot District and two others reported in 2002(3) CTC 221. So, the Land Encroachment Act is not applicable to gramanatham. In that it was also held that gramanatham is not a communal property in the sense in which thrashing floor or burning grounds or other property is communal that is property reserved for the use of the community. Gramanatham is a land in the occupation of the individual in possession of the gramanatham cannot be interfered and it could very resist ejectment and also institute a suit in ejectment against the trespasser.
14. Further it is appropriate to incorporate paragraph No.14 of the decision in Krishnamurthy Gounder Vs. Government of Tamil Nadu represented by the District Collector, Cuddalore, South Arcot District and two others reported in 2002(3) CTC 221, wherein it was held that the land Encroachment Act or the Tami Nadu Estates (Abolition and Conversion into Ryotwari) Act cannot be invoked in respect of the gramanatham property occupied by general public.
15. So considering the above two citations, I am of the view that since the property is in natham, the Land Encroachment Act is not applicable to the present case.
16. The learned Counsel for the appellant would rely upon the decision in A.Thayal Nayagi Vs. Union of India owning Southern Railway, represented by its General Manager, Chennai and Others reported in (2005)1 MLJ 453 and he would submit that unauthorised occupants can forcibly be evicted from the public premises. It is appropriate to incorporate paragraph Nos.5 and 6 of the above citation, which are as follows:
5.The appellant was only a licensee of the plot in question and it is well settled that a licensee has no right vide Sec.60 of the Easements Act. Moreover the period of license expired a long time back and hence, the appellant was clearly an unauthorised occupant.
6. Learned Counsel for the appellant however argued that the procedure mentioned in the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 should have been followed by the authorities, but it was not followed. In our opinion, this argument is based on a total misconception. The object of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 is to forcibly evict unauthorized occupants who are deliberately remaining in occupation of public premises unauthorisedly. Hence, the impugned judgment of the learned single Judge is fulfilling exactly the same object which the aforesaid Act aims at, namely, to forcibly throw out unauthorised occupants from public property. Decent people vacate the premises when the period of lease or license expires. When a person does not behave in a decent manner, the only way left is to forcibly throw him out. It is for this purpose that the aforesaid Act was enacted, and the same object has been achieved by the learned single Judge namely, to throw out an unauthorised occupant. Hence, we see no reason to interfere with the judgment of the learned single Judge, which is eminently just and fair. The writ appeal is dismissed. Consequently W.A.M.P.No.179 of 2005 is also dismissed.
17. But the above citation is not applicable to the facts of the present case, because they were put in possession as a licensee and after the expiry of the licence period, they are unauthorised occupants and so, they are the occupants of the public premises. Hence, they are liable to be evicted. Therefore, the above citation is not applicable to the present case. But in the case on hand, as already stated, suit property is natham property and hence, the Land Encroachment Act is not applicable. Hence, the appellant has no right to cancel the assessment order. So, issuance of Ex.A.1 is illegal. The Substantial Questions of Law 1 and 2 are answered accordingly.
18. In view of the answer given to Substantial Questions of Law 1 and 2, Ex.A.1 cancellation of property tax assessment order is against law, illegal, void, ab initio and not binding the plaintiffs and the Land Encroachment Act cannot be invoked for natham property. Hence, the act of the appellant is not appreciable. The respondents filed a cross objection claiming declaration of title to the suit property. As already stated, the property is Natham property. The respondent and his predecessors were in possession and enjoyment of the property till the building was demolished during the pendency of the suit. As already stated, Land Encroachment Act is not applicable to Natham property. Hence, the occupiers of Natham property is entitled to declaration of title. So, the respondents are entitled to declaration of title to the suit property. Hence, the Cross-Objection is liable to be allowed.
19. As stated supra, the respondents and their predecessors were in possession and enjoyment of Natham property and made a construction and enjoying the property by paying the property tax and obtaining the electricity service connection and running a tea shop and residing in the premises. So, the Land Encroachment Act is not applicable. Hence, the issuance of Ex.A.1 for cancellation of property tax assessment is illegal, void ab initio and not binding the plaintiffs and they are entitled to declaration of title to the suit property. Since the building and the electricity service connection has been disconnected during the pendency of the suit, the trial Court and the first appellate Court is correct in holding that Ex.A.1 is illegal and also granted a mandatory injunction to put up a construction and hand over the same to the plaintiffs and also directing the fifth and sixth defendants to give electricity service connection. Furthermore, I am of the view that the respondents 1 to 4/plaintiffs are entitled to declaration of title also.
20. In the result, the Second Appeal is dismissed by confirming the judgment and decree passed by both the Courts below and the Cross Objection is allowed. Consequently, the suit in O.S.No.442 of 2003, on the file of the Principal District Munsif Court, Tenkasi, is decreed as the plaintiffs are the owners of the suit property, declaring the issuance of Ex.A.1 for cancellation of property tax assessment is illegal, void and mandatory injunction has been granted to put up construction and to restore electricity service connection. Three months' time from the date of receipt of a copy of this judgment has been granted for restoring the original possession, for making construction and giving electricity service connection. Consequently, the connected Civil Miscellaneous Petition is closed.