Madras High Court
S.Sankar Singh vs The Commissioner on 28 April, 2021
W.P.No.10672 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.04.2021
CORAM :
THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN
and
THE HONOURABLE MR.JUSTICE T.V.THAMILSELVI
W.P.No.10672 of 2021
and WMP.Nos.11290 and 11292 of 2021
S.Sankar Singh ... Petitioner
Vs
1.The Commissioner,
Cuddalore Municipality,
Bharathi Road,
Cuddalore - 607 001.
2.The Town Surveyor,
Cuddalore Municipality,
Bharathi Road,
Cuddalore - 607 001.
3.Singaravelu
4.Jose Kamal Morris ... Respondents
PRAYER : Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorari, praying to call for the records and
quash the impugned order in Na.Ka.No.9922/2020/F1, dated 02.04.2021
1/8
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W.P.No.10672 of 2021
issued by the 1st respondent.
For Petitioner : Mr.R.Gururaj
For Respondents : Mr.V.Jayaprakash Narayanan
Government Pleader for R1 and R2
ORDER
(Order of the Court was passed by N.KIRUBAKARAN, J)
The matter was heard through "Video Conference".
2.The petitioner has challenged the order passed by the
respondent by which the petitioner was directed to remove the
encroachment made by him on the road by putting up cowshed and juice
shop, to an extent of 100.5 sq. meter . The said order is challenged
before this Court.
3.The petitioner states that he is the owner of the property in
T.S.Nos.1151 and 1186/B. The property is located in Bashyam Street,
the petitioner is entitled to an extent of 2265 sq.ft., in T.S.No.1155 and
an extent of 372 sq.ft in T.S.No.1186/1B along with a house and other
superstructure. The property was obtained by the petitioner by way of
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W.P.No.10672 of 2021
release deed dated 19.10.1983. Since the official respondent tried to
remove the petitioner's property stating that the petitioner is encroached
upon the road, the petitioner filed O.S.No.220 of 2002 and got a decree
and judgment on 27.06.2003. Subsequently, the 3rd respondent filed
O.S.No.311 of 2017 making the petitioner as party. The said suit was
dismissed holding that the 3rd respondent has got no right of way and
there is no necessity to issue mandatory injunction.
4.When things stands so, it seems one Jose Kamal Morris filed
a writ petition in W.P.No.17585 of 2020 making the petitioner as a party
and obtained an order on 10.12.2020, directing the authorities to make
inspection of the property, after giving notice of the parties and to
remove the encroachment.
5.Pursuant to that only the petitioner was put on notice and
survey was conducted on 27.03.2021. After measuring the property in
the presence of the petitioner, it was found that to an extent of 100.5
sq.meter, the petitioner encroached upon the pathway i.e., equivalent of
1082 sq.ft. Thereafter, only the impugned order has been passed.
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W.P.No.10672 of 2021
6.Heard Mr.D.Bsakar, learned counsel appearing for the
petitioner and Mr.V.Jayaprakash Narayanan, learned Government
Pleader appearing on behalf of respondents 1 and 2.
7.It is evident from the release deed dated 19.10.1983,
executed by M/s.Gowri Bai, that the petitioner was given only 246 sq.ft
in S.No.1186/1B and the new Town Survey No.421/1B, Ward No.7,
Block No.9. When the petitioner was entitled for only 66 sq.meter, it
seems he has encroached upon to an extent of 100.5 sq.meter, which is
equivalent of 1082 sq.ft. The measurement was taken in the presence of
the petitioner, therefore, he cannot plea ignorance. A look at the
photographs would show that the shops and cowshed have been
constructed encroaching upon the road. The petitioner is entitled to
enjoy his property to an extent of 246 sq.ft only. He cannot have right to
encroach upon the pathway, which is meant for public. The principles of
natural justice has been duly complied with and the petitioner has got no
document to show that he is the owner of the property to an extent of
1082 sq.ft. In view of that the impugned order cannot be set aside.
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W.P.No.10672 of 2021
8.Even though Mr.D.Baskar, would vehemently contend that
there is a decree in O.S.No.220 of 2002 dated 27.06.2003 against the
local body/1st and 2nd respondents, the present cause of action arises
pursuant to the direction of this Court made in W.P.No.3222 of 2021.
There is no proof that any inspection was made during the trial of the suit
and thereafter the suit was decided. Whereas, pursuant to the direction
given by this Court, in the presence of the petitioner, the property was
measured and it is found that he has encroached upon 1082 sq.ft,
whereas, as per the settlement dated 19.10.1983 is entitled to only 246
sq.ft and hence, the impugned order has been passed and it cannot be
found fault with.
9.The respondents 1 and 2 are directed to remove the
encroachment, as per the impugned order within a period of four weeks.
10. Accordingly, this writ petition is dismissed.
Consequently, connected miscellaneous petitions are closed. No costs.
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W.P.No.10672 of 2021
11. Call the matter for "Reporting Compliance" on
07.06.2021.
(NKKJ) (TVTSJ)
28.04.2021
ub/sai
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W.P.No.10672 of 2021
To
1.The Commissioner,
Cuddalore Municipality,
Bharathi Road,
Cuddalore - 607 001.
2.The Town Surveyor,
Cuddalore Municipality,
Bharathi Road,
Cuddalore - 607 001.
https://www.mhc.tn.gov.in/judis/
W.P.No.10672 of 2021
N.KIRUBAKARAN, J.
and
T.V.THAMILSELVI, J
ub/sai
W.P.No.10672 of 2021
Dated : 28.04.2021
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