SEKHAR Vs. D MALLIGARJUNA RAO

JUDGEMENT

(1.) THE Judgment of the Court was delivered by N.K.Jain, Actg. C.J.:

(2.) ONE D.Malligarjuna Rao, writ petitioner-first respondent, a member of ?Baracah Road Residents Welfare Association? filed the writ petition alleging that the slums on the eastern side of Baracah Road at Purasawalkam had reduced the width of the road in his area. It is stated that on earlier occasion Madras Secretariat Co-operative Building Society filed a writ petition in W.P.No.12243 of 1984 for removal of encroachment on the Baracah Road and by an order of this Court dated 16.9.1994 the Commissioner of Corporation, the Managing Director of Tamil Nadu Slum Clearance Board and Chennai Metropolitan Development Authority were directed to remove the same. Inspite of repeated representations and provision of alternative sites, five huts remain undisturbed. It is submitted because of the act of the slum dwellers and the adjoining huts therein, the writ petitioner is not able to have free access to present their property. It is stated that a planning permission was not for bequeathing open space reservation area measuring 1,274 square feet to the Corporation of Chennai for public utility. The writ petitioner further alleged that entry to the petitioners property is not possible in view of the alleged encroachment. In such circumstances, he prayed for a direction to direct the respondents to accept the open space reservation area and earmarked in the petitioners property and further to direct the respondents to remove the encroachment as stated above.

(3.) MR.R.Gandhi, learned senior counsel appearing on behalf of the first respondent/writ petitioner submits that though some of the encroachers were removed, yet the appellants, like others, are in possession of a public road and due to their encroachment, the width of the road is shortended and the writ petitioner is not able to gain access to his premises upon which he is having a right. Learned counsel submits that some of the occupants of the huts are employees of the Corporation and they have encroached the property in question. He further submits that the first respondent is legally entitled to pass and repass from any portion of his property. He also submitted that in view of the direction that the Tamil Nadu Slum Clearance Board is to provide alternative sites, the Corporation is facing difficulty to comply with the order of this Court to remove the encroachers from the public road. In so far as the argument of the appellants that the writ petitioner is not entitled to get open space reservation is concerned, MR.R.Gandhi submits that for constructing 79 flats in three blocks open space reservation is required in front of the proposed flats facing the Baracah Road and wanted to bequeath the said property to the Corporation for public utility under the registered gift deed. He further submits that as a matter of fact, the same is necessary and has been given. But due to the encroachment in open space reservation area, the writ petitioner is unable to fence the area. In any case, the appellants cannot challenge the finding of the learned single Judge in this respect. So far as the legal position as enunciated in the decisions cited, the learned counsel has not disputed the same. But, he submits that in the facts of the given case, those decisions are not helpful to the appellants. As regards the decision in Government of Andhra Pradesh v. Thummala Krishna Rao and another A.I.R. 1982 S.C. 1081 MR.Gandhi submits that, in that case the persons were in a unauthorised occupation of the Government land and it was held that the Government has power to evict summarily. It was also observed that it cannot be restored into a case where conflicting questions of title arose for decision, whereas in the present case, no dispute regarding title arises, and the appellants have no legal right and they cannot take advantage of the case. As regards Annamalai Club v. Government of Tamil Nadu and others (1997)3 S.C.C. 169, the learned counsel submitted that in that case on an earlier occasion the Government granted licence in respect of a Government land to the applicant and thereafter, he was evicted, without giving an opportunity of hearing and without following the procedures established. Under those circumstances. Their Lordships held that the law makes a distinction between persons in juridical possession and rank trespassers, and under the circumstances learned counsel submits that the appellants cannot take advantage of that case. MR.R.Gandhi further summits that the two decisions in Public Interest Litigations viz., pertaining to Hawkers, Squatters Etc. in Public Streets in N.D.M.C. Area Sodan Singh v. N.D.M.C. Public Interest Litigations viz., pertaining to Hawkers, Squatters Etc. in Public Streets in N.D.M.C. Area Sodan Singh v. N.D.M.C. Public Interest Litigations viz., pertaining to Hawkers, Squatters Etc. in Public Streets in N.D.M.C. Area Sodan Singh v. N.D.M.C. (1998)1 Scale 449 and Sodan Singh wherein the court issued consequential direction by appointing Chaturvedi Committee and imposing reasonable restrictions, has nothing to do with the facts of the present case, as they are pertaining to a Scheme.