TULICORIN NEW SHORE SLUM DWELLERS WELFARE ASSOCIATION SOUTH BEACH ROAD TUTICORIN Vs. CHAIRMAN PORT TRUST TUTICORIN

JUDGEMENT

(1.) 1.This petition has been filed in public interest by Tuticorin New Shore Slum Dwellers Welfare Association represented by its Vice President. They have questioned the validity of a notice of the Chief Engineer, Tuticorin Port Trust, calling on the fishermen who have been residing upon a parcel of land on the sea shore, to remove their houses and vacate the site under their occupation.

(2.) BY a separate petition (W.M.P.No.8934 of 1989), the petitioner sought to have amendment of the case title and substitution of the name the Chairman, Port Trust, Tuticorin in the place of the Chairman, Madras Port Trust, who had been originally impleaded as the first respondent. The Chief Engineer, Tuticorin Port Trust (second respondent) and the Chairman. Port Trust. Tuticorin (first respondent) have since appeared and shown cause. There can be no objection to the amendment to the petition. The same is accordingly allowed.

(3.) THE decision in Abbas v. Andi Chettiar, A.I.R. 1963 Mad. 74, is thus an authority to show that the shore in relation'to sea is that ground which between the high and low water mark and prima facie belongs to the State, both in the shore of the sea and the shore of the arms of the sea, and where the area in dispute is definitely part of the seashore immediately adjacent to the actual ocean, no one can claim that land as his property as against the State, even if there is a document of title in support, but fishermen are entitled to exercise their customary rights therein in regard to drying fish, keeping boats and fishing nets, without let or hindrance, as a kind of easement on account of long enjoyment of such rights in respect of the said land. Whether 'State'in the context of shore land will mean Government of the State or a trust or any other authority created for such specified purpose as in respect of sea transport, Port Trust is constituted. In such a situation, unless it is known that the land in dispute is part of sea shore, it is not possible to acknowledge that no persons can claim title by dint of either grant or transfer otherwise or adverse possession by dint of long user and possession with the necessary animus. THE facts aforementioned show that for the past 2 to 2 1/2 decades, as many as 600 people have been living upon the land in about 126 dwelling houses with roads electricity, water supply, official constructions of the Fisheries Department, a Church and a School. A whole community of people thus had full enjoyment of the land exclusively to themselves, and they are having the said enjoyment continuously within the full knowledge of the Fisheries Department of the State Government as well as the Port Trust. It is also not known how the Port Trust came to acquire the land. That is to say, what is the basis of its title? Whereas there is no denial to the assertion of the petitioner that about 600 people including children lived in a colony partially developed and they have been living upon the ljand since the past 2 to 2 1/2 decades, it is asserted in the counter affidavit that the Port Trust permitted the Fisheries Department of the State Government to allow fishermen to beach the canoes and dry the nets upon the land but the fishermen instead used the land for other purposes, and that when this was brought to the notice of the Port that the area was not used for the purpose for which it had been allotted, the Port requested the Fisheries Department to take necessary action to vacate the fishermen. But the . Fisheries Department instead asked the Port to take action for vacating the fishermen. What does it show? It shows clearly that the Port Trust came to know some time soon after the fishermen occupied the land that they were using the land for purposes other than the one for which the land had been allotted to them. Thus, there is an implicit admission in the said pleading that fishermen enjoyed possession of the land in question with necessary animus, and unless shown otherwise, as noticed in the decision of this Court in Abbas case, A.I.R. 1963 Mad. 74, they have a claim of title by adverse possession. In any case, if it is not established as a fact that fishermen utilised the land only under the permission of the Port Trust, by dint of user of the land for a continuously long period as noticed above, even if it is found that they have not perfected any title by adverse possession, they may have the rights of easement. In any case, the Port Trust will be required to establish that fisherman living upon the land have encroached upon the land. Unless that is established, and it is also established besides that the Port Trust has got title to the land, it cannot evict the fishermen. Alternatively, there is no such material before me that I may come to a definite conclusion that there has been a relationship of landlord and tenant between the Port Trust on the one hand and the fishermen on the other. It appears, however, that at some stage, the fishermen have been paying some ground rent to the Port Trust. If that created a relationship of landlord and tenant, and thus the respective parcels of land of each fisherman were/are leaseholds, the Port Trust will be required to proceed in accordance with the provisions under the Transfer of Property Act to determine the lease, and if it is found that the leasee is holding over notwithstanding the determination of the lease, institute a suit, establish its title before the appropriate civil court and then obtain a decree for ejectment of the tenants. Evsn a trespasser cannot just be thrown but. Possession in itself is a right that is exercised with all necessary animus against all such persons who may have their interests in the land. No person thus can go to the trespasser and say 'vacate', and if it is not vacated, thrown him out. In that case also, only such action can be taken against the trespasser which is in accordance with the law of eviction of a trespasser.