Madras High Court
E.Siddheswaran vs The District Collector on 22 April, 2021
W.P.No.9361 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.04.2021
CORAM :
THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN
and
THE HONOURABLE MR.JUSTICE T.V.THAMILSELVI
W.P.No.9361 of 2021
and W.M.P.No.9947 of 2021
E.Siddheswaran,
S/o.Elumalai,
Pulliyampatti Panchayat,
Omalur Taluk,
Salem District. ... Petitioner
Vs
1.The District Collector,
Salem District,
Salem.
2.The Tahsildar,
Omalur Taluk,
Salem District.
3.The President,
Pulliampatti Village Panchayat,
Pulliampatti Village and Post,
Omalur Taluk,
Salem District. ... Respondents
1/8
https://www.mhc.tn.gov.in/judis/
W.P.No.9361 of 2021
PRAYER : Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorari, Order or Direction in the name of
the writ calling for the records from the 3rd respondent relating to the
Impugned Notice Ref.Nil and Dated. Nil under Section 7 of the Tamil
Nadu Land Encroachment Act, 1905 and quash the same.
For Petitioner : Mr.M.Devaraj
for Mr.R.Gunaalan
For Respondent : Mr.S.Kamalesh Kannan (for R1 to R4)
Government Advocate
ORDER
(Order of the Court was passed by N.KIRUBAKARAN, J)
The matter was heard through "Video Conference"
2. Challenging the order of the 3rd respondent relating to the
Impugned Notice Ref.Nil and Dated. Nil under Section 7 of the Tamil
Nadu Land Encroachment Act, 1905, the present writ petition has been
filed.
3.The petitioner, right from his father's period, is in possession
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W.P.No.9361 of 2021
and enjoyment of the property situated at Door No.63-A and 64-A,
Puliyampatti Village, Puliyampatti Panchayat, Omalur Taluk, Salem
Distirct. The petitioner has been paying property tax regularly and
Chitta, Adangal extracts stand in the name of the petitioner. Before that,
his father had been paying the property tax from the year 1968 onwards.
Electricity Board connection has also been enjoyed by the petitioner.
4.Earlier, the petitioner had filed W.P.No.38587 of 2003
against the National Highways Authority and others prohibiting them
from interfering with peaceful possession of the petitioner's property
without complying with the requirements of Sections 3E, 3G and 3H of
the National Highways Act 1956. In the said Writ Petition, a direction
was given to conclude the acquisition proceedings and also to determine
the compensation payable for the land acquired from the petitioner. The
Petitioner and the Respondents had preferred Writ Appeals in
W.A.Nos.789 and 1689 of 2005, respectively, which were disposed of
holding that the compensation is not payable to the petitioner as he is not
the owner.
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W.P.No.9361 of 2021
5.One Mr.P.Shanmugam, filed W.P.No.19232 of 2020, seeking
direction to the official respondents to remove the encroachments
comprised in S.F.No.31/1, 61, 62, 63 and 64 situated at Puliyampatti
Village, Omalur Taluk, Salem District. In the said writ petition, the
petitioner herein was also made as a party/5th respondent. This Court by
an order dated 17.12.2020 disposed of the said Writ Petition, directing
respondents 3 and 4 viz., Tahsildar, Omalur Taluk, Salem District and
Block Development Officer, Omalur, Salem District to cause joint
inspection of the property in S.F.Nos.31/1, 61, 62, 63 and 64 and to take
appropriate action, if the result of the inspection reveals any
encroachment.
6.Since the petitioner has not been served, the petitioner filed
the modification petition in W.M.P.Nos.3690 and 3688 of 2021 in
W.P.No.19232 of 2020 and the same was dismissed by order dated
19.02.2021, holding that as per the earlier order of this Court, the
inspection was ordered to be conducted and if any encroachment is there,
the same has to be removed following due process of law.
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W.P.No.9361 of 2021
7.Paragraph No.7 of the order passed in W.M.P.Nos.3690 and
3688 of 2021 in W.P.No.19232 of 2020, dated 19.02.2021, is extracted
as follows:
"The judgment dated 14.07.2019 made in
W.A.Nos.789 and 1689 of 2005 has recorded a categorical
finding that the first respondent/writ petitioner herein is an
encroacher and, at best, he may be entitled for
compensation in respect of the superstructure put up by
him and according to the learned counsel appearing for
the petitioner, the petitioner has also received the
compensation in respect of the superstructure. This Court,
in the order, which is the subject-matter of the contempt,
merely has made an observation that without going into
the merits of the fact claim projected by the first
respondent/writ petitioner, directed respondents 3 and 4 to
cause joint inspection of the land in S.F.Nos.31/1, 61, 62,
63 and 64 and if the result of the inspection reveals any
infraction on the part of the private respondents or any
other persons, shall take immediate, necessary and
appropriate steps, in accordance with law, by also
adhering to the principles of natural justice and as such,
there is no necessity to modify the order. If the petitioner
is of the view that the order, which is the subject-matter of
this modification petition, has not been complied with, in
letter and spirit, he is at liberty to workout his remedy in
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W.P.No.9361 of 2021
accordance with law and not by way of this modification
petition."
8.Pursuant to above said order only, the present impugned
order has been issued under Section 7 of Land Encroachment Act 1905.
The said order is being challenged before this Court.
9.Heard, Mr.M.Devaraj, learned counsel for Mr.R.Gunaalan,
learned appearing for the petitioner and Mr.S.Kamalesh Kannan, learned
Government Advocate, appearing on behalf of the respondents.
10.Mr.S.Kamalesh Kannan, learned Government Advocate,
would submit that as per the earlier order of this Court, the joint
inspection has been conducted and the inspection report reveals that the
petitioner has encroached upon the property. Therefore, appropriate
action has been taken by the department by issuing notice under Section
7 of the Encroachment Act.
11.Though the petitioner has got right to give reply, the time
for filing reply has already expired. In view of that, time is extended for
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W.P.No.9361 of 2021
the petitioner to give reply, till 30.04.2021 and appropriate orders should
be passed by the 3rd respondent within a period of eight weeks from the
date of receipt of a reply.
12.With the above directions, this writ petition is disposed of.
Till the order is passed by the 3rd respondent, the petitioner's possession
and enjoyment of the property shall not be disturbed. Consequently,
connected miscellaneous petition is closed. No costs.
(NKKJ) (TVTSJ)
22.04.2021
ub
To
1.The District Collector,
Salem District,
Salem.
2.The Tahsildar,
Omalur Taluk,
Salem District.
3.The President,
Pulliampatti Village Panchayat,
Pulliampatti Village and Post,
Omalur Taluk,
Salem District.
https://www.mhc.tn.gov.in/judis/
W.P.No.9361 of 2021
N.KIRUBAKARAN, J.
and
T.V.THAMILSELVI, J
ub
W.P.No.9361 of 2021
Dated : 22.04.2021
https://www.mhc.tn.gov.in/judis/
