Madras High Court
M.Kathiresan vs )The District Revenue Officer on 3 March, 2016
Bench: S.Manikumar, C.T.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 03.03.2016
CORAM
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
and
THE HONOURABLE MR.JUSTICE C.T.SELVAM
Writ Petition(MD)No.3793 of 2016
M.Kathiresan .... Petitioner
vs.
1)The District Revenue Officer,
Madurai District.
2)The Revenue Divisional Officer,
Madurai District.
3)The Tahsildar,
Melur Taluk, Madurai District.
4)Vasantha
5)S.Satheeshkumar
6)S.Sasikumar
7)S.Chandran
8)S.Mandaiyan .... Respondents
Petition filed under Article 226 of the Constitution of India, for
issuance of a Writ of Mandamus, directing the 3rd respondent to remove the
encroachment made in the cart track in S.No.539/32 Boothamangalam Village,
Melur Taluk, Madurai District based on the order passed by the 1st respondent
in his proceedings Nee.Mu.No.6981/2011/C dated 15.09.2015.
!For Petitioner : Mr.PT.S.Narendra Vasan
^For R1 to R3 : MrM.Alagadevan
Special Government Pleader
:ORDER
(Order of the Court was made by Mr.Justice S.MANIKUMAR) Resident of Boothamangalam Village, Melur Taluk, Madurai District, and owner of property in S.No.280/8A1 measuring 35 cents of Nanja land, has sought for a Writ of Mandamus, directing the 3rd respondent/ Tahsildar, Melur Taluk, Madurai District, to remove the alleged encroachment made on a cart track in S.No.539/32 Boothamangalam Village, Melur Taluk, Madurai District, based on the order passed by the 1st respondent/District Revenue Officer, Madurai District, in his proceedings Nee.Mu.No.6981/2011/C dated 15.09.2015.
2.According to the petitioner, Melur-Singampunari main road is adjacent to his property. There is a common pathway in S.No.539/32, leading to the main road. The said pathway had been used by the petitioner and other public, for the past several decades. The petitioner has to use the common pathway to reach his property from the main road. According to the petitioner, the common pathway in S.F.No.539/32, is the only access, connecting Melur-Singampunari main road and his property.
3.The petitioner has further submitted that respondents 4 to 8 have encroached upon the common pathway and put up a tiled house, thereby causing obstruction to the petitioner and others. Hence, the petitioner made a representation dated 18.12.2010, to the official respondents 1 to 3, to remove the encroachment made by the respondents 4 to 8. As no action was taken, the petitioner was constrained to file W.P.No.3681 of 2011, for a Mandamus, to consider his representation dated 18.12.2010. By order dated 29.03.2011, a Hon'ble Division Bench directed consideration of the representation. Pursuant to the direction, the 3rd respondent/ Tahsildar, Melur Taluk, Madurai District, conducted an enquiry and passed an order in Na.Ka.No.514/2011/B1 dated 28.06.2011, stating that during UDR Scheme, S.No.539/32 corresponding to old S.No.327/14A, was earlier classified as Grama Natham, but now, it has been classified as cart track, under Natham Survey and Settlement Scheme. Challenging the said order, the petitioner preferred an appeal, before the 1st respondent/ District Revenue Officer, Madurai District. After issuing notice to the private respondents 4 to 8, the 1st respondent passed an order in Proceedings No.6981/2011/C dated 15.09.2015.
4.The petitioner has further contended that in the said order, it has been categorically stated that the case before the 1st respondent, is only to remove the encroachment made on a cart track, and not relating to cancellation of patta. It is also the contention of the petitioner that the 1st respondent has directed the 3rd respondent/Tahsildar, to remove the encroachment in S.No.539/32, if any.
5.It is the grievance of the petitioner that though an order has been passed as early as on 15.09.2015, encroachment has not been removed and hence, left with no other alternative, he has filed the present writ petition.
Heard the learned counsel for the parties and perused the materials available on record.
6.Pursuant to the directions in W.P(MD)No.3681 of 2011 dated 29.03.2011, the 3rd respondent/Tahsildar, Melur Taluk, Madurai District, has conducted an enquiry. Before the Tahsildar, the petitioner has submitted that there is a cart track in S.No.539/32 and three persons namely, Satish Kumar, Sasikumar and Chandra Kumar, sons of late Chockalingam, have encroached upon the same, by putting up a tiled shed. He has also stated that in the cart track, Tractor, Lorry and agricultural plow, have been kept.
7.Per contra, on behalf of the above alleged encroachers, the 4th respondent/Vasantha has adduced oral evidence and submitted a petition, wherein, she has contended that there is a dispute between the petitioner and her family for many years. According to her, a thatched house had been constructed 40 years ago. When the writ petitioner attempted to cut 2C Tamarind Tree, by bringing it to the notice of the concerned authorities, they stopped the same. Before the Tahsildar, it has also been contended that S.No.280/8A belongs to one Selvam and a suit in O.S.No.256/2010 is pending between Kathiresan/writ petitioner and Selvam. Tmt.Vasantha, respondent No.4/mother of respondents 5 to 8, has also contended that there is also a civil proceeding in A.S.No.162/2009 and in the abovesaid civil cases, Sasikumar/6th respondent has appeared.
8.Before the Tahsildar, on behalf of the respondents 5 to 8, their mother/respondent No.4, has also contended that they have been residing in the subject property in S.No.539/32, for nearly 40 years. They have obtained electricity service and water connection, ration card, etc. After conducting an enquiry, the Tahsildar has passed an order on 28.06.2011 in Na.Ka.No.514/2011/B1 dated 28.06.2011. The relevant portion is extracted hereunder:-
''g{jkA;fyk; fpuhkk; ej;jk; rh;Bt vz;: 539/32 giHa rh;Bt vz;: 327/14A tz;og;ghij vd fpuhkf; fzf;fpy; cs;sJ. epyclik Bkk;ghl;Lj; jpl;lj;jpd; fPH; epy msitapd; BghJ Bkw;go g[yk; 327/14A fpuhk ej;jkhf nUe;jJ. ej;jk; epythpj; jpl;lj;jpd; BghJ jtWjyhf tz;og;ghij vd khwp cs;sJ. Bkw;go g[yj;jpy; xU Xl;LtPL, xU 2rp g[spakuk;, FoePh; FHha; Mfpait cs;sd.
rh;Bt vz;.539/32 MdJ fpuhkf; fzf;fpy; tz;og;ghij vd cs;sBjbahHpa jw;rkak; tz;og;ghijahf gad;ghl;oy; ny;iy. ne;j g[yj;jpd; nU g[wA;fspYk; bjhlh;r;rpahf tz;oghij vd g[yA;fSk; VJk; ny;iy. rh;Bt vz;.539/32d; tlg[wj;jpy; rh;Bt vz;.539/25, 27, 31, Mfpatw;wpy; BkYhh; rpA;fk;g[zhp bry;Yk; Cuhl;rp xd;wpa jhh; rhiy bry;fpwJ. Bkw;go Cuhl;rp xd;wpa rhiyBa Bghf;Ftuj;jpw;F bghJkf;fs; gad;gLj;jp tUfpd;wdh;.
rh;Bt vz;.539/32 d; bjd;Bkw;F gFjpapy; jpUkjp.tre;jh vd;gth; Xl;L tPL fl;o FoapUe;J tUfpwhh;. Xl;L tPl;od; Kd;g[wk; FoePh; FHha; nizg;g[ xd;W cs;sJ. Bkw;go tPl;od; tlfpHf;Bf jpU.Brh.rjP!;Fkhh; vd;gthpd; bgahpy; 2rp g[spakuk; xd;W cs;sJ. rh;Bt vz;:539/32d; fpHf;F g[wk; vt;tpj Mf;fpukpg;g[ Vjkpd;wp fhyp nlkhf cs;sJ. Bkw;go fhyp nlj;jpid jpU.fjpBurd; vd;gth; jdJ rh;Bt vz;: 280/8A epyj;jpw;F ghijahf gad;gLj;jp tUfpwhh;. rh;Bt vz;:280/8A g[yj;jpd; Bkw;F vy;iyapypUe;J Rkhh; 8 kPl;lh; js;spBa jpUkjp. tre;jh vd;gtuJ tPL cs;sJ. ne;j tPl;odhy; jpU.fjpBurd; epyj;jpw;F Bgha;tu vt;tpj nila{Wk; ny;iy. BkYk; jw;BghJ bry;Yk; BkYhh; - rpAfk;g[zhp Cuhl;rp xd;wpa rhiy gpw;fhyj;jpy; tp!;jhpf;fg;gl;lhYk; vt;tpj nila{Wk; ny;yhky; xJf;Fg;g[wkhf tPL mike;Js;sJ.''
9.Reading of the above shows that the Tahsildar has categorically found that though S.No.539/32 has been recorded in the village accounts as cart track, as on 28.06.2011, the date on which he passed the order in Na.Ka.No.514/2011/B1 dated 28.06.2011, the said place has not been used, as cart track. He has also stated that eastern side of S.No.539/32 is vacant, and that the writ petitioner has been using the said place, as access to his property in S.No.280/8A. The Tahsildar, has also recorded that the house of the respondents 4 to 8 is located 8 meters away from S.No.280/8A and there is no hindrance to the petitioner to have, ingress and egress to the petitioner's land in S.No.280/8A.
10.It is also the observation of the Tahsildar, Melur Taluk that even if Melur-Singampunari panchayat union road is widened in future, there would not be any hindrance, due to the location of the house of the 4th respondent/Vasantha. The Tahsildar has also observed that during UDR Scheme, S.No.539/32, old S.No.327/14A was earlier classified as Grama Natham and under Natham Survey and Settlement Scheme, it has been changed as cart track in 2011, and it is no longer used as cart track. On the contention of the petitioner that on his appeal, the 1st respondent/ District Revenue Officer, Madurai District, has passed orders on 15.09.2015, stating that it was not a case for cancellation of patta, but directed the Tahsildar to remove the encroachment, this Court deems it fit to extract the order dated 15.09.2015.
''bghUs;; -gl;lh kJiu khtl;lk- BkYhh; tl;lk;- g{jkA;fyk; fpuhkk;-g[y vz;. 5390/32 y; tz;oghijapid Mf;fpukpg;g[ bra;js;sij mfw;WtJ rk;ge;jkhf tprhuiz bjhlh;ghf.
ghh;it . jpU fjpBurd; vd;gtuJ kD ehs; 28.07.2011 Mizfs;
kJiu khtl;lk ? BkYhh; tl;lk; - g{jkA;fyk; fpuhkk; - g[y vz;.539/32y; tz;oghijapid Mf;fpukpg;g[ bra;Js;sij mfw;WtJ rk;ge;jkhf ghh;itapy; fhZk; kD nt;tYtyfk; tug;bgw;W, kDjhuh; kw;Wk; vjph;kDjhuh;fSf;F tprhuizf;F miHg;ghizfs; mDg;gg;gl;L, KiwBa 20.01.2012 Kjy; 20.08.2015 md;W tiu tprhuiz eilbgw;W te;j epiyapy;, nUjug;gpdUk;, bjhlh;e;J tHf;fpd; Kd; tprhuizf;F M$uhfpdh;.
Bkw;fz;l tprhuizapy; tz;oghij Mf;fpukpf;fg;gpid mfw;WtJ bjhlh;ghdJ. n;t;tpdkhdJ gl;lh uj;J bjhlh;ghd tHf;F ny;iy vd;gjhy; ne;ePjp kd;wj;jpy; eilbgw;W te;j nt;tHf;fpid js;Sgo bra;J njd;Kyk; cj;jutplg;gLfpwJ.
muR Miz vz; 540d;go Mf;fpukpg;g[ gjpBtl;oy; gjpe;J Mf;fpukpg;g[ VBjDk; nUg;gpd mjid mfw;wp mwpf;if bra;a[khW BkYhh; tl;lhl;rpah Bfl;Lf;bfhs;sg;gLfpwhh;.''
11.Perusal of the order does not indicate that it is an order under appeal, against the proceedings in Na.Ka.No.514/2011/B1 dated 28.06.2011 passed by the Tahsildar, Melur Taluk, Madurai District. Reading of the order dated 15.09.2015 shows that the petitioner has given a representation dated 28.07.2011 for removal of the alleged encroachment. The District Revenue Officer, Madurai District, 1st respondent herein, has dismissed the case by observing that it was not relating to cancellation of patta. While doing so, he had only directed the Tahsildar, to consider that if any encroachment is registered in the register, as per the Government Order No.540, steps to remove the same be taken and to submit a report.
12.We have already recorded the findings of the Tahsildar, Melur Taluk, Madurai District, made in the order dated 28.06.2011, wherein, he has stated that there is absolutely no hindrance to the petitioner to have ingress and egress, to his property in S.No.280/8A and that he has been using another vacant place on the eastern side of S.No.539/32.
13.As stated supra, the Tahsildar has also recorded that public are using Melur-Singampunari panchayat union Tar road in S.No.539/25, 27, 31. Cart track is no more in use. The 1st respondent/District Revenue Officer, Madurai District, has stated that only in the event of any encroachment being registered, steps be taken, if required. In the case on hand, there is no specific direction to the Tahsildar to remove the encroachment. Reading of the representation dated 05.11.2015 stated to have been submitted to the Hon'ble Chief Minister, State of Tamil Nadu, shows the petitioner has raised fresh allegations, stating that the members of the same family have obtained free pattas. He has also alleged that the abovesaid persons have threatened the general public and also the writ petitioner. There are absolutely no materials to support the abovesaid contention.
14.Reading of the order dated 15.09.2015 of the 1st respondent/District Revenue Officer, Madurai District and the order dated 28.06.2011 of the Tahsiladar, Melur Taluk, Madurai District, respectively, does not indicate any categorical finding of encroachment. Specific finding of the Tahsildar, Melur Taluk, regarding usage of the subject property in S.No.280/8A and the access to the same is intact. Alleged obstruction said to have been caused by respondents 4 to 8, has not been substantiated. After enquiring the parties and also based on the report of the Revenue Inspector Karungalakudi, dated 25.05.2011, the finding of the Tahsildar is otherwise. It remains intact. The allegation of the petitioner that there is encroachment, and that the same requires to be removed, is not substantiated.
15.In the light of the above discussion, this Court is not inclined to entertain the writ petition and accordingly, the same is dismissed. No costs.
To
1)The District Revenue Officer, Madurai District.
2)The Revenue Divisional Officer, Madurai District.
3)The Tahsildar, Melur Taluk, Madurai District.
.