Madras High Court
R.Sakthivel vs The Tahsildar on 26 September, 2023
Author: B.Pugalendhi
Bench: B.Pugalendhi
WP(MD)No.21006 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 26.09.2023
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
WP(MD)No.21006 of 2023
and
WMP(MD)Nos.17420, 17421, 17422 of 2023
R.Sakthivel : Petitioner
Vs.
1.The Tahsildar,
Manmangalam Taluk,
Karur District.
2.The Head Surveyor,
Manmangalam Taluk,
Karur District.
3.M.Thangammal : Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
seeking issuance of a Writ of Certiorarified Mandamus calling for the records
relating to the impugned notice dated 18.08.2023 issued by the first respondent
and quash the same and consequently, restrain the first respondent from
conducting any survey on the date mentioned in the impugned notice or any other
date in future during the pendency of the dispute subjudiced before the civil Court.
1/12
https://www.mhc.tn.gov.in/judis
WP(MD)No.21006 of 2023
For Petitioner : Mr.H.Arumugam
For Respondents : Mrs.D.Farjana Ghoushia,
Special Government Pleader
for R.1, R.2
*****
ORDER
This writ petition is filed by the petitioner as against the notice issued by the second respondent / Surveyor fixing the date of survey on the application made by one Thangammal [R3] to survey the land in S.No.241/1 of Andankovil Village, Manmangalam Taluk, Karur District. By the impugned notice, the Survey Officer has intimated the petitioner's wife, namely Kasthuri; Thangammal [R3]; one Marichamy S/o.Palaniyappa Goundar; and the Village Administrative Officer of Andankovil that the survey would be conducted on 26.08.2023 @ 10.00 am.
2.Learned Counsel for the petitioner submitted that the land in S.No.241/1 is a common pathway and it was not subdivided. According to him, the petitioner's father has purchased the adjacent lands in S.Nos.241/2, 241/4, 241/5, 241/9 by way of registered documents in the year 1971 and the petitioner has purchased an extent of 39.5 cents out of 1.86 acres from one Subarayan. The third respondent has also purchased some properties from the very same vendor, Subarayan. The said Subarayan has sold 1.74 acres to the third respondent, when he possessed 2/12 https://www.mhc.tn.gov.in/judis WP(MD)No.21006 of 2023 only 1.46½ acres, after selling 39.5 cents to the petitioner. Therefore, the petitioner has filed a suit before the District Munsif Court, Karur, seeking the relief of declaration and permanent injunction in respect of the common pathway in O.S.No.471 of 2014. The suit filed by the petitioner was dismissed on 01.06.2023 and as against the same, the petitioner has preferred an appeal before the District Court, Karur, in A.S.SR.No.13012 of 2023. Since the issue is subjudiced before the civil Court, the notice issued by the Survey Officer is not correct and the Survey Officer is not supposed to conduct the survey deciding the title in favour of the third respondent.
3.Adding to this arguments, the learned Counsel further submitted that by conducting the survey, the third respondent is attempting to fence the property obstructing the common pathway, which is the only available pathway for the petitioner to access his property and which is also the subject matter of the suit. The very purpose and object of the survey is to find out the boundary. When there is no dispute with regard to the boundary, there is no necessity for conducting any survey. Moreover, since the issue is pending before the civil Court, the respondents should not proceed with the survey without any explicit orders of the Court.
3/12 https://www.mhc.tn.gov.in/judis WP(MD)No.21006 of 2023
4.The learned Counsel has also referred to the decisions of this Court in Asaithambi v. Revenue Divisional Officer and Others [2020 (2) CWC 891] and G.Arumugam and Another v. District Collector, Cuddalore and Others [WP.No. 27006 of 2014, decided on 07.04.2022] and submitted that contrary views are being taken by the Courts for surveying the properties pending the civil suits.
5.Learned Special Government Pleader submitted that they have received an application for survey from the third respondent and based on the same, the Survey Officer has issued notice for conducting survey.
6.Heard the learned Counsel appearing on either side and perused the available materials.
7.This Court is not inclined to accept the petitioner's contention for more than one reasons. The case of the petitioner is that since there is a dispute with regard to the common pathway between the petitioner and the third respondent, the first respondent ought not to have issued the impugned notice based on the application of the third respondent to conduct the survey. It appears that the 4/12 https://www.mhc.tn.gov.in/judis WP(MD)No.21006 of 2023 petitioner has lost the suit and has filed an appeal, which also is in SR stage. Assuming that the suit is pending, the survey, if any, conducted will not confer any title on the parties.
8.In Re Rukkaiah Natchiar v. P.M.S.Mohamed Aamina Beevi and Others [2020 SCC OnLine Mad 22892], this Court analyzed the scope of Tamil Nadu Survey and Boundaries Act and has held as follows:-
“41. To sum up, under Sec.13 of the Act, only the boundary of a survey field as determined in a survey operation becomes conclusive, and will be final in all cases where no suits are filed challenging its correctness, but it does not include a dispute on title over the property. Title to the property, and its extent, depend on multi-various facts, of which the boundary of the survey field as determined by the survey officer is one. A survey number, for all it matters, is one of the aspects that enables the identification of an immovable property, like the boundaries or peripheral measurements, or the extent. It may have a bearing in resolving a title-dispute, but it does not enjoy any superior evidentiary value than the rest, nor can it be treated as a conclusive proof on the issue of title, nor can it be perceived or misconceived as statutorily holy. Where a boundary fixed by a survey officer interferes with the title or its extent, it has to be decided on a holistic reading of the pleadings and the entire evidence in every case. Reference may be made to the ratio of the Kerala High Court in Kannan v.Kannan, [1964 5/12 https://www.mhc.tn.gov.in/judis WP(MD)No.21006 of 2023 KLT 228], where the Court held:
“In my judgement where the title to property has to be determined not with reference to the survey demarcation, but on other and perhaps more cogent materials, the demarcation can be regarded as but one circumstance affecting the decision on title”.”
9.In Asaithambi's case (supra), referred by the petitioner, this Court has issued certain guidelines to be followed in respect of survey of properties by the authorities concerned and the same is extracted as under:-
“7. At this juncture, this Court thinks it fit to draw certain guidelines to be followed, in respect of survey of the properties in future by the authorities concerned, which are as under:
i) On receipt of charges towards Survey or Resurvey, it should be conducted within a period of 30 days from the date of such receipt and in case of failure on the part of the authorities to do so, the cost of application shall be returned to the parties, apart from recovery of a sum of Rs.2,500/- from the salary of the concerned Officials, responsible for execution of the job and also initiation of departmental proceedings against them and those errand officers must be identified and placed under suspension and even dismissed from service for their misconduct, dereliction of duty, showing no devotion to work, lack of integrity, so as to deprive their entire gratuity and terminal benefits under the head "moral turpitude", thereby failing to maintain absolute integrity in 6/12 https://www.mhc.tn.gov.in/judis WP(MD)No.21006 of 2023 discharging his/her official duties. The details of such Officers stated supra together with his / her Aadhar Number shall be incorporated and adverse remarks shall be entered in the Service Register of the concerned Officers, so as to deprive their further promotions in their career. In case of failure to do survey, the concerned Official / Surveyor shall be displaced to a non-sensitive post;
ii) A Register shall be maintained, in which details, such as name of the person, who has gone for survey, area of survey, date of survey, completion of survey, reason for not surveying the property, etc., should be entered periodically and verified by the Superior Officer. The complete details shall be available to the parties concerned or any person, when required under the Right to Information Act and Section 8 of the said Act or any other provision shall not be quoted to deprive the details to the person, who requires it;
iii) The Respondents 1 to 4 shall make use of Drone Technology in order to conduct accurate survey of the property, which will throw light with regard to encroachment on Government lands, like OSR, Public Roads, Parks, Lakes, Odai, etc.
iv) Pendency of litigation before Courts is not a bar for the authorities to conduct survey or resurvey in the absence of any stay / interim order / interim injunction from proceeding further;
v) In cases relating to pending civil dispute, the parties are at liberty to approach the appropriate forum for conducting Survey or Resurvey of the property in question by making necessary application and the same shall be considered by the appropriate forum in 7/12 https://www.mhc.tn.gov.in/judis WP(MD)No.21006 of 2023 accordance with law;
vi) The entire process of survey or resurvey shall be photographed and videographed by the authorities concerned even in the absence of suitable orders to that effect and the copies of documents shall be furnished to the parties concerned on receipt of necessary charges;
vii) In the event of any public documents sought for by any of the parties in connection with the property in question, under the Right to Information Act, duly certified copies should be provided to such parties and it should not be denied by merely quoting some provisions of the RTI Act, more particularly, Section 8 of the said Act, unless there is any interim order operating against the parties concerned in respect of disbursement of the documents sought for by the parties. The name, designation, employment number, if any Aadhar Card details, shall be furnished in the certification;
viii) It is needless to mention that obviously, the entire charges for survey or resurvey of the property shall be paid by the parties concerned or it should be equally borne them, depending upon the facts of each case. In case of delay on the side of the Authorities, the costs should be borne by them from their personal funds;
ix) A constant vigil at the Officials of every Revenue Departments is absolutely necessary to regulate the revenue related works and the Vigilance Department shall be brought into action to curb the demand of bribe by them, especially Surveyors;
x) In case of request for issuance of Patta after survey, apart from 8/12 https://www.mhc.tn.gov.in/judis WP(MD)No.21006 of 2023 the aforesaid guidelines, the directions issued by this Court in W.P.(MD) No.7746 of 2020 batch on 23.09.2020 shall have to be adhered to;
xi) The Government is directed to issue a circular in this regard, incorporating the above guidelines within a period of one month from the date of receipt of a copy of this order.”
10.In G.Arumugam's case (supra), referred by the petitioner, a survey notice has been challenged and this Court has allowed the said writ petition in view of the pendency of the civil suit. Apart from the factual discussion, no ratio has been laid down in that decision.
11.The Hon'ble Supreme Court in Jayant Verma v. Union of India [(2018) 4 SCC 743] has held that it is not the findings of material facts, direct and inferential, but the statements of the principles of law applicable to the legal problems disclosed by the facts, which is the vital element in the decision and operates as a precedent. By referring this decision, the Hon'ble Supreme Court, very recently, in Career Institute Educational Society v. Om Shree Thakurji Educational Society [2023 SCC OnLine SC 586], has observed that not everything said by a Judge when giving judgment constitutes a precedent and that the only thing in a Judge's decision binding as a legal precedent is the principle 9/12 https://www.mhc.tn.gov.in/judis WP(MD)No.21006 of 2023 upon which the case is decided and it is important to analyze a decision and isolate from it the obiter dicta. Therefore, the decisions in Asaithambi's case and G.Arumugam's case (supra), referred by the petitioner, cannot be considered as precedents, inasmuch as the issue and question of survey pending a civil dispute has not been decided in either of the above decisions.
12.In Rukkaiah Natchiar's case (supra), this Court, after a detailed discussion, has held that in a survey, only the boundary of the survey field becomes conclusive and nothing else. The Survey Officer, under the Tamil Nadu Survey and Boundaries Act, is mandated to fix the boundary, if any application is made with necessary fee. In the event of any dispute with regard to the boundary, the Survey Officer has to issue notice to the objectors, if any, the adjacent land owners and conduct survey as contemplated u/s.10 of the Tamil Nadu Survey and Boundaries Act and thereafter, to take a decision either to proceed with the survey or not. The order passed by the Survey Officer u/s.10 of the Tamil Nadu Survey and Boundaries Act is also appealable u/s.11 of the Tamil Nadu Survey and Boundaries Act.
10/12 https://www.mhc.tn.gov.in/judis WP(MD)No.21006 of 2023 For the reasons supra, this Court is not inclined to entertain this writ petition and the same is accordingly, dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
Internet : Yes 26.09.2023
Index : Yes / No
NCC : Yes / No
gk
To
1.The Tahsildar,
Manmangalam Taluk,
Karur District.
2.The Head Surveyor,
Manmangalam Taluk,
Karur District.
11/12
https://www.mhc.tn.gov.in/judis
WP(MD)No.21006 of 2023
B.PUGALENDHI, J.
gk
WP(MD)No.21006 of 2023
26.09.2023
12/12
https://www.mhc.tn.gov.in/judis