Madras High Court
I.Essakimudaliyar vs The District Collector on 20 December, 2023
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
W.P.(MD)No.909 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 20.12.2023
CORAM
THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH
W.P.(MD)No.909 of 2020
I.Essakimudaliyar ... Petitioner
vs.
1.The District Collector,
Tenkasi District.
2.The Divisional Engineer,
NABARD and Village Roads, Tirunelveli.
3.The Thasildar,
Veerakeralamputhur Taluk,
Veerakeralamputhur Village.
4.The Commissioner,
Keelapavoor Panchayat Union,
Tenkasi Taluk, Tirunelveli District Now Tenkasi District.
5.The President,
V.K.Pudur Village
V.K.Pudur Taluk,
Tirunelveli District Now Tenkasi District.
6.The Inspector of Police,
V.K.Pudur Police Station,
V.K.Pudur,
Tirunelveli District Now Tenkasi District. ... Respondents
1/9
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.909 of 2020
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India for issuance of Writ of Mandamus, forbearing the respondents from
laying road in the petitioner property in S.Nos.156, 158 and 159 to an
extent of 13 acres at Veerakeralamputhur Village, Tenkasi district.
For Petitioner :Mr.S.Venkatesh
For R1 to R5 :Mr.A.K.Manikkam
Special Government Pleader
For R6 :Mr.R.Sivakumar,
Government Advocate (Crl.side)
*****
ORDER
This Writ Petition has been filed for the issue of Writ of Mandamus forbearing the respondents from laying road in the property belonging to the petitioner in S.Nos.156, 158 and 159 to an extent of 13 acres at Veerakeralamputhur Village, Tenkasi district.
2.Considering the nature of dispute involved in this case, this Court passed the following order on 23.03.2023:
“The above writ petition has been filed stating that the respondents are laying a road in the petitioner's land in S.Nos. 156, 158 and 159, measuring an extent of 13 acres, at Veerakeralampudur Village and Taluk, Tenkasi District.
2.A counter has been filed by the respondents, wherein they have in clear and categoric terms stated that the road has not been laid in the petitioner's land and that it is proposed to be 2/9 https://www.mhc.tn.gov.in/judis W.P.(MD)No.909 of 2020 laid in S.Nos.160, 174, 175, 189 and 190. These lands belong to the Public Works Department. Despite the counter, the petitioner insists that the road is proposed to be laid in his patta lands.
3.In order to verify the same, this Court appoints Mr.T.Selvan, 3/176, Solamalai Garden, Neethinagar, Y.Othakadai, Madurai (Enrol.No.1422/2003, Mobile No.94427 25918) is appointed as as Advocate Commissioner, who shall visit the village and verify the ground reality in the said village and submit a report on or before 13.04.2023. He shall be assisted by the revenue authorities, who shall identify the lands. The petitioner shall pay a sum of Rs.30,000/- to the Advocate Commissioner towards initial remuneration.
4.Post on 13.04.2023.”
3.Pursuant to the above order, the learned Advocate Commissioner conducted an inspection on 07.10.2023. The learned Advocate Commissioner while preparing the report has extensively relied upon the report of GPS operators. The same is evident from the order passed by this Court on 20.11.2023 and for proper appreciation, the same is extracted hereunder:
“When the matter was taken up for hearing today, the learned Special Government Pleader appearing on behalf of respondent Nos.1 to 5 submitted that the remuneration has already been paid to the learned Advocate Commissioner. The learned Special Government Pleader further submitted that a report of the GPS Operators is also available.
2.The learned Advocate Commissioner submitted that the report of the GPS Operators must be sent to the Surveyor and that the Surveyor on receipt of the same, will issue a clarification to the learned Advocate Commissioner and only thereafter, a 3/9 https://www.mhc.tn.gov.in/judis W.P.(MD)No.909 of 2020 report can be filed in this case.
3.In view of the above, the report of the GPS Operators shall be sent to the Surveyor by the end of this week and a copy of the report of the GPS Operators shall also be furnished to the learned Advocate Commissioner. The learned Advocate Commissioner on receipt of the same and after getting the clarification from the Surveyor shall file a report before this Court.
4.Post this Writ Petition under the same caption on 27.11.2023.”
4.Ultimately, the learned Advocate Commissioner filed a report on 15.12.2023 along with all the relevant documents and a copy of the same was also furnished to the learned Counsel for the petitioner.
5.The learned Advocate Commissioner in his report has stated as follows:
“11.On 25.11.2023, at 11.30 AM the petitioner and his counsel, respondents and surveyor are present in the spot. The GPS machine operators also present in the spot with machine. Out of two GPS machines one was permanently fixed at A point. Another GPS machine was taken on hand by roaming for verification at different points. The GPS machine was connected with the cell phone of the GPS operator through the concerned App. The survey numbers 159, 158 and 156 was subdivided as 159/2B, 158/2A, 2B1, 3, 4A, 4B1 and 156/4B, 5A, 6A, 7A, 7B, 7C in favour of the petitioner. The survey numbers of the petitioner were given in green colour letter. The survey numbers 160, 174, 175, 189 are situated on the southern side of the petitioner's land. In between the petitioner's land and survey numbers 160, 174, 175, 189, the canal and dispute road are situated. The canal and 4/9 https://www.mhc.tn.gov.in/judis W.P.(MD)No.909 of 2020 dispute road are situated in survey numbers 160, 174, 175, 189 as per FMB. The Canal as per FMB was given in dark blue colour. In survey number 189 the existing canal was given in light blue colour. The existing road was given in red colour in the GPS plan. The survey boundary was shown in black colour. The co- ordinate points of the petitioner’s survey numbers are shown in black colour numbers. The co-ordinate points of the road margin are shown in red colour numbers in the plan. The case of the petitioner is the existing road is situated within the survey numbers of the petitioner. There are two plans were provided by the GPS operators. One plan is showing petitioner's survey numbers and road and canal with co- ordinate points. Another plan is including all 7 survey numbers.
12.Initially the F point was measured by the GPS operators with help of the roaming GPS machine. The co-
ordinate measurement numbers at F point were put in the cell phone through the concerned App. At the time of catching the F point by the GPS machine the cell phone created beep sound. In the presence of stated above persons the point at F was verified in the said method. In the above manner all the co-ordinate points situated in the petitioner's survey numbers and road margin were verified in the presence of all of above persons. All the points of the petitioner's survey numbers points were situated away from the road margin points as per GPS measurement. There is no overlapping at any point. We concluded the verification at 03.00 PM.
13.The above said two GPS plans were compared with FMB map by the Surveyor. The Surveyor also filed a report along with separate FMB sketch of the all survey numbers on 09.12.2023. The Surveyor also endorsed the above said two GPS plans filed by the GPS operators.”
6.When the matter was taken up for hearing today, this Court had put a pointed question to the learned Advocate Commissioner, as to 5/9 https://www.mhc.tn.gov.in/judis W.P.(MD)No.909 of 2020 whether there is any encroachment upon the land belonging to the petitioner and he replied that his inspection did not reveal any such encroachment made upon the land belonging to the petitioner. The learned Advocate Commissioner also fairly submitted that most of his report was based on the report given by the GPS operators.
7.The learned Counsel for the petitioner submitted that there is no clarity in the report submitted by the learned Advocate Commissioner, as to whether there is any encroachment upon the property belonging to the petitioner and that it requires yet another inspection for more clarity.
8.In the considered view of this Court, this Court while exercising its jurisdiction under Article 226 of Constitution of India will not normally enter into disputed questions of facts. However, this Court wanted to prima facie satisfy itself, as to whether there is any encroachment upon the property belonging to the petitioner. For that purpose, an Advocate Commissioner was appointed and he has already submitted a report and he states that there is no encroachment upon the land belonging to the petitioner. Beyond this clarification, this Court 6/9 https://www.mhc.tn.gov.in/judis W.P.(MD)No.909 of 2020 should not be going into the nitty-gritties of the various issues that were raised. Hence, it is not necessary for this Court to go deep into the questions of facts, that were raised at the time of arguments.
9.If the petitioner is not satisfied with the conclusion arrived at in this Writ Petition, it will not stand in the way of the petitioner to work out his remedy before the competent civil Court. Ultimately, if any proceedings are initiated before the civil Court, the Court will have the advantage of going into the facts in detail, while undertaking appreciation of evidence. That exercise cannot be done in a Writ jurisdiction. Except giving this clarity, no further orders can be passed in this Writ Petition.
10.This Writ Petition is disposed of in the above terms. No costs.
Index :Yes / No 20.12.2023
Internet :Yes / No
NCC :Yes / No
cmr
7/9
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.909 of 2020
To
1.The District Collector,
Tenkasi District.
2.The Divisional Engineer,
NABARD and Village Roads, Tirunelveli.
3.The Thasildar,
Veerakeralamputhur Taluk,
Veerakeralamputhur Village.
4.The Commissioner,
Keelapavoor Panchayat Union,
Tenkasi Taluk, Tirunelveli District Now Tenkasi District.
5.The President, V.K.Pudur Village V.K.Pudur Taluk, Tirunelveli District Now Tenkasi District.
6.The Inspector of Police, V.K.Pudur Police Station, V.K.Pudur, Tirunelveli District Now Tenkasi District. 8/9 https://www.mhc.tn.gov.in/judis W.P.(MD)No.909 of 2020 N.ANAND VENKATESH, J.
cmr W.P.(MD)No.909 of 2020 20.12.2023 9/9 https://www.mhc.tn.gov.in/judis