Madras High Court
R.Chandra Sekaran vs The District Collector
Author: S.S.Sundar
Bench: S.S.Sundar, D.Bharatha Chakravarthy
W.P(MD)Nos.139 and 140 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on 27.07.2023 Delivered on 22.08.2023
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
and
THE HONOURABLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
W.P(MD)Nos.139 and 140 of 2022
and
W.M.P(MD)Nos.98 and 100 of 2022
R.Chandra Sekaran ... Petitioner in W.P.(MD) No.139 of 2022
R.Inbasekar ... Petitioner in W.P.(MD) No.140 of 2022
-vs-
1.The District Collector,
Kanyakumari District.
2.The Tahsildar,
Agasteeswaram Taluk,
Nagercoil.
3.The Revenue Inspector,
Rajakkamangalam,
Kanyakumari District.
4.Smt.Santhakumari ... Respondents in both the Writ Petitions
COMMON PRAYER : Petitions filed under Article 226 of the Constitution of
India, to issue a Writ of Certiorari, to call for the records related to the
impugned notice signed on 23.12.2021 issued by the Revenue Inspector of
Rajakkamangalam under Section 7 of the Tamil Nadu Land Encroachment
Act, 1905 and quash the same.
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https://www.mhc.tn.gov.in/judis
Page 1 of 13
W.P(MD)Nos.139 and 140 of 2022
For Petitioner in both : Mr.N.Dilip Kumar
the Writ Petitions
For Respondents 1 to 3 in : Mr.D.Sachikumar
both the Writ Petitions Additional Government Pleader
For 4th Respondent in : Mr.M.Vivek Kumar
both the Writ Petitions
COMMON ORDER
[Order of the Court was made by S.S.SUNDAR, J.] The above Writ Petitions are filed by the two individuals, who are brothers, for issuance of a Writ of Certiorari to quash the impugned notice sent by the Revenue Inspector of Rajakkamangalam on 23.12.2021 purported to have been issued under Section 7 of the Tamil Nadu Land Encroachment Act, 1905.
2. The petitioner in W.P.(MD) No.139 of 2022 claims exclusive title to the property in S.No.371/9 in Neendakarai B Village, Agasteeswaram Taluk, Kanyakumari District, whereas the petitioner in W.P.(MD) No.140 of 2022 claims exclusive title to S.Nos.371/8 and 371/10 in the same village. It is the specific case of the petitioners, with reference to their title documents that they have exclusive right and title to the properties in respect of which the present Writ Petitions are filed. It is admitted that patta in respect of the properties stands in the name of respective petitioners. ____________ https://www.mhc.tn.gov.in/judis Page 2 of 13 W.P(MD)Nos.139 and 140 of 2022
3. It appears that the 4th respondent in both the Writ Petitions (herein after referred to as “the fourth respondent”) has earlier filed W.P.(MD) No. 17770 of 2018 for issuance of a Writ of Mandamus, directing the respondents 1 to 3 in the said Writ Petition, who are all revenue officials, to remove the encroachment made by the petitioner in W.P.(MD) No.140 of 2022 in the odai and its bund in S.No.371/8, 371/9, 371/10 in Neendakarai B Village, Agastheeswaram Taluk, Kanyakumari District and further to direct the official respondents 1 to 3 therein to cancel the patta granted in the name of the petitioner in W.P.(MD) No.140 of 2022 in respect of the Survey Fields in S.Nos.371/8, 371/9, 371/10 and to restore the same to its original position. The said Writ Petition was disposed of by this Court by order dated 27.11.2022 with the following directions:-
“4.However, the learned Special Government Pleader for the respondents 1 to 3, by relying the counter affidavit filed by the third respondent, submitted that a poramboke odai runs through the land in S.Nos.371/5, 371/7, 371/8, 371/9 and 371/10 and these lands have to be kept free from encroachments and therefore, the respondent authorities are taking steps to remove the encroachment keeping the odai intact.
5.In view of the submission made by the third respondent, there is no need to give any specific direction. However, if the respondent authorities are initiating action to remove the encroachment, the same has to be done by issuing notice and by affording opportunity of hearing to the petitioner and the respondents 4 to 6.” ____________ https://www.mhc.tn.gov.in/judis Page 3 of 13 W.P(MD)Nos.139 and 140 of 2022
4. Pursuant to the directions of this Court, the second respondent – the Tahsildar, Agasteeswaram Taluk, conducted an enquiry and found that the properties in S.Nos.371/5, 371/7, 371/8, 371/9 and 371/10 are the patta lands of the individuals, while the property in S.No.371/7 is held to be the separate property of the fourth respondent herein, the property in S.Nos. 371/8, 371/9 and 371/10 belongs to the petitioners in these Writ Petitions.
5. It was contended by the fourth respondent before the Revenue Officials that the fourth respondent has a right of easement to have access to her land through the property in S.No.371/9. After enquiry, the Tahsildar, Agastheeswaram Taluk found that the fourth respondent is now using the pathway through different survey numbers and that therefore, the grievance expressed by the fourth respondent cannot be considered.
6. It was further contended by the fourth respondent that there is an Odai that runs through S.Nos.371/8, 371/9 and 371/10 and that the adjacent pattadars viz., the petitioners in these two Writ Petitions have encroached the same. In response to the representation of the fourth respondent, the Tahsildar found as follows:-
“nkw;go Mf;fpukpg;g[ bra;ag;gl;Ls;sjhf bjhptpf;fg;gl;Ls;s bjhlh;gi [ la fpuhk m gjpntl;od; go midj;J g[yq;fSk; gl;lh epyq;fshFk;. mtw;wpy; muR g[wk;nghf;F Xil vd gjpthftpy;iy. nkYk; nkw;go g[yq;fSf;fhd g[yr;Rtoapy; “detail” xd;W gjpthfpa[s;sJ. Mdhy; jw;nghJ g[yq;fspy; ePnuhil brd;wjw;fhd ve;jbthU MjhuKk; fhzg;gltpy;iy.” ____________ https://www.mhc.tn.gov.in/judis Page 4 of 13 W.P(MD)Nos.139 and 140 of 2022 However, the Tahsildar, after enquiry, in his proceedings dated 26.07.2019 has concluded as follows:-
“vdnt mr;rplg;gl;l fpuhk Mtzkhd m gjpntl;od; go> ePz;lfiu M fpuhkk; g[y vz;fs; 371/5> 7> 8> 9> 10Mfpait midj;Jk; gl;lh epyq;fs; MFk;. nkYk; nkw;go g[yq;fs; midj;Jk; muR g[wk;nghf;F ,y;iy vdt[k;> mtw;wpy; Xil vJt[k; bry;ytpy;iy vd;gJk; bjhpatUfpwJ. vdnt nkw;go g[yq;fspy; ve;jbthU Mf;fpukpg;g[k; fz;lwpag;gltpy;iy vd;w tptuk; ePjpg;nguhiz bjhlh;ej; kDjhuuhd jpUkjp.rhe;jFkhhp vd;gtUf;F bjhptpf;fg;gLfpwJ.
nkYk; nkw;go g[yq;fs; midj;Jk; mr;rplg;gl;l m gjpntl;od; go gl;lh epyq;fs; vd;W tifg;gLj;jg;gl;lhYk;> fpuhk g[yg;glr; Rtoapy; rpwpa ePh;tHpj;jlk; brd;wjw;fhd jlk; cs;sjhf Fwpg;gplg;gl;Ls;sJ. Vdnt vjph;kDjhuUf;F brhe;jkhd g[y vz;fs; 371/8> 9> 10-y; jz;zPh; bry;tjw;fhd tHpj;jlj;ij jilapd;wp mikj;J guhkhpf;f vjph; kDjhuuhd jpU.,d;gnrfh; vd;gtUf;F ,jd; K:yk; cj;jutpgl;gLfpwJ. ,nj nghy kDjhuUf;F brhe;jkhd g[y vz; 371/7-y; jz;zPh; bry;tjw;fhd tHpj;jlj;ij jilapd;wp mikj;J guhkhpf;f kDjhuuhd jpUkjp.rhe;jFkhhp vd;gtUf;Fk; cj;jutplg;gLfpwJ.”
7. From the proceedings of Tahsildar dated 26.07.2019, it is recorded that the property in S.Nos.371/8, 371/9, 371/10 is the absolute property of the writ petitioners, as per the 'A' Register before and after settlement. There is no dispute regarding the title of petitioners, who are the owners of the property comprised in S.Nos.371/8, 371/9 and 371/10. However, a channel is detailed in the FMB. Though the Tahsildar has found that there is no channel in existence and there is no poramboke land within S.Nos.371/7, 371/8, 371/9 and 371/10, erroneously directed the petitioners and the fourth respondent to maintain the water course, which is not found. The conclusion is not based on any physical features found by the Tahsildar at ____________ https://www.mhc.tn.gov.in/judis Page 5 of 13 W.P(MD)Nos.139 and 140 of 2022 the time of Inspection but on the basis of line drawn in the survey fields as seen from FMB. It appears that the fourth respondent has taken advantage of the direction of the Tahsildar to file a Contempt Petition in Cont. P.(MD) No.995 of 2019. It is to be noted that the petitioner in W.P.(MD) No.139 of 2022 has also filed a civil suit for permanent injunction restraining the defendants, who are the revenue officials as well as the fourth respondent, from interfering or disturbing the plaintiff''s possession and enjoyment over the plaint schedule property and not to trespass or enter or form any Odai or pathway within the suit property which is in S.No.371/9. It is also admitted that the said suit is pending.
8. It is in these circumstances, probably to satisfy the fourth respondent, who has initiated proceedings for contempt, the Tahsildar, who is the second respondent herein initiated action for removal of encroachment by issuing show cause notice under the Tamil Nadu Land Encroachment Act, 1905 mentioning the names of the petitioners and the fourth respondent herein as owners of the property. The show cause notice referred to a small extend between 1 Are to 3 Ares in the three survey fields as if the said portion is in the encroachment of the petitioners as well as the fourth respondent. Challenging the same the above Writ Petitions are filed.
9. Learned counsel for the petitioners relied upon the title documents ____________ https://www.mhc.tn.gov.in/judis Page 6 of 13 W.P(MD)Nos.139 and 140 of 2022 as well as the revenue records which would show in unmistakable terms that the petitioners are the owners of the entire property comprised in Survey Nos.371/8, 371/9 and 371/10. The 'A' Register as well as the patta issued will clearly prove that the property stands in the name of the writ petitioners. The title of the petitioners in respect of the three survey fields is not seriously disputed by the fourth respondent. Therefore, the fourth respondent, who has claimed a right of easement through the property of the petitioners, has to establish the existence of a channel (Xil) across the patta lands of the writ petitioners.
10. The fourth respondent has filed a counter stating that the petitioners in these Writ Petitions have encroached the Government Poramboke Odai and its bund in R.S.Nos.371/8, 371/9 and 371/10. It is also stated by the fourth respondent that though there is a Odai and bund, it can also be used to form a pathway to the property of the fourth respondent, if the encroachment put up by the petitioners in the form of fencing is removed. She has also prayed for cancellation of patta granted in favour of the petitioners in respect of S.Nos.371/8, 371/9 and 371/10 by stating that the lands in occupation of petitioners should be treated as Government Poramboke Odai and that the official respondents should relay the pathway for passage or else the fourth respondent as well as adjacent owners may not have the alternative passage to reach their properties. ____________ https://www.mhc.tn.gov.in/judis Page 7 of 13 W.P(MD)Nos.139 and 140 of 2022
11. Even though the fourth respondent repeatedly says before this Court that the pathway is in existence all these years, she has not approached the civil Court to establish her right to have access through the property of somebody else. Not on any other ground but on the ground that the fourth respondent's right to have access is denied by petitioners, the fourth respondent contend that the patta issued to the petitioners in these two writ petitioners are liable to be cancelled. It is to be noted that the Tahsildar in his proceedings dated 26.07.2019 has rendered a finding that the fourth respondent and others are using a pathway in different survey fields.
12. Learned counsel for the fourth respondent specifically argued that the fourth respondent has given several representations to remove the encroachment in poramboke Odai, which runs through the land in S.Nos. 371/8, 371/9 and 371/10 as directed by this Court in the order dated 27.11.2018.
13. Though the learned counsel for the fourth respondent by referring to the FMB in relation to Survey Field No.371 pointed out that the Odai that was detailed in the F.M.B. was given separate field after sub division, the fourth respondent has not produced any document to show sub division proceedings defining a water channel through the patta land of the writ ____________ https://www.mhc.tn.gov.in/judis Page 8 of 13 W.P(MD)Nos.139 and 140 of 2022 petitioners. Except the fact that the channel is detailed in F.M.B., the existence of water channel of a permanent character is not seen from any records produced by the petitioner. The contention of the fourth respondent is contrary to the revenue records that was referred to in the report of the Tahsildar.
14. In this State, after the commencement of Tamil Nadu Survey and Boundaries Act, 1897, which was repealed under Tamil Nadu Survey and Boundaries Act, 1923, field survey was conducted. As per the survey manual, the Survey Officer while carrying out the survey used to denote survey marks and prepare topographical details by marking pictures in the village map about the existence of a house, temple, mosque, lamp, telephone line, railway line, cart track, foot path, river, street, culvert or bridge, tanks etc. Marking the symbols may indicate a temporary or permanent feature. Some times the existence of any such thing as detailed in village map may not be even seen due to change or development over a period of time. While the village boundary, existence of tank and permanent structure which are detailed in FMB surveys can always be identified on ground with reference to particular classification of land, existence of foot path by dotted lines or similar features like channel cannot be interpreted that it always exists for all the time to come. In other words, unless the specific area is sub divided to indicate the existence of a tank or road and marking of rivers or pictures ____________ https://www.mhc.tn.gov.in/judis Page 9 of 13 W.P(MD)Nos.139 and 140 of 2022 in revenue map can only be taken as existence of such features at the time of survey. In the absence of any other record or evidence of foot path or cart track in FMB, it is a weak evidence to deprive the proprietary right of pattadars/owners.
15. In the present case, the revenue map alone is relied upon by the fourth respondent in order to indicate that a line is drawn through Survey Nos.371/7, 371/8, 371/9 and 371/10. On field inspection, the Tahsildar himself has recorded that no Odai is in existence. Unless the water channel has its beginning and the end to connect the channel to a tank or some waterbody, the Court cannot presume, without further evidence, the existence of a permanent water body which vests with the Government.
16. In the present case, the contention of the fourth respondent is based on the presence of a line drawn in FMB, which may indicate the existence of a channel or water course when survey was conducted. At the time of Survey, the Odai does not connect any permanent water source between its origin and end. Hence, this Court cannot accept the case of the fourth respondent that the petitioners are in encroachment of a Odai which runs through the patta land of petitioners.
____________ https://www.mhc.tn.gov.in/judis Page 10 of 13 W.P(MD)Nos.139 and 140 of 2022
17. One of the petitioners has also filed a civil suit. From the pleadings and the contentions raised by the fourth respondent, the fourth respondent is keen in establishing the right of pathway through the petitioners' land under the pretext that there is an Odai and bund which runs across the patta land of the petitioners. The claim of the fourth respondent is not supported by any material worth mentioning. Therefore, this Court is unable to accept the contention of the fourth respondent in alleging that the petitioners have encroached the channel which runs across their patta land. The show cause notice issued under Section 7 of Land Encroachment Act does not indicate any other record except the statement that a portion of the land in patta land is being encroached. A summary proceedings for eviction cannot be based on mere assumption, especially when the petitioners are said to be in possession on the basis of substantial documents of title and revenue records.
18. For the reasons stated above, this Court finds that the respondents have no jurisdiction to issue notice under the Land Encroachment Act by treating the petitioners' lawful enjoyment as encroachment. However, in case the fourth respondent wants to establish his right of way or the existence of a channel, she may approach the Civil Court.
____________ https://www.mhc.tn.gov.in/judis Page 11 of 13 W.P(MD)Nos.139 and 140 of 2022
19. In the said circumstances, these Writ Appeals are allowed and the impugned order is set aside. No costs. Consequently, connected Writ Miscellaneous Petitions are closed.
[S.S.S.R, J.] [D.B.C., J.]
22.08.2023
Index : Yes / No
Neutral Citation : Yes / No
sj
To
1.The District Collector,
Kanyakumari District.
2.The Tahsildar,
Agasteeswaram Taluk,
Nagercoil.
3.The Revenue Inspector,
Rajakkamangalam,
Kanyakumari District.
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https://www.mhc.tn.gov.in/judis
Page 12 of 13
W.P(MD)Nos.139 and 140 of 2022
S.S.SUNDAR, J.
and
D.BHARATHA CHAKRAVARTHY, J.
sj
Pre-delivery order in
W.P(MD)Nos.139 and 140 of 2022
Delivered on
22.08.2023
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https://www.mhc.tn.gov.in/judis
Page 13 of 13