Madras High Court
Mathaiyan vs The District Collector on 4 March, 2021
W.P.No.1838 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.03.2021
CORAM :
THE HONOURABLE MR. JUSTICE M. SATHYANARAYANAN
AND
THE HONOURABLE MR. JUSTICE A.A.NAKKIRAN
W.P.No.1838 of 2021
and
W.M.P.No.2073 of 2021
Mathaiyan ... Petitioner
Vs.
1.The District Collector,
Salem,
Salem District.
2.The Revenue Divisional Officer,
Mettur Taluk,
Salem District.
3.The Thasildar,
Mettur Taluk,
Salem District.
4.The Assistant Divisional Engineer,
Highway Department,
Construction and Maintenance,
Omalur,
Salem District. ... Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Certiorari to call for the records pertaining to the
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W.P.No.1838 of 2021
impugned order passed by the 4th respondent in Ka.No.Case/2020/u dated
05.01.2021 and quash the same.
For Petitioner : Mr.E.Kannadasan
for Mr.M.Subash
For R1 to R3 : Mr.S.Kamalesh Kannan
Government Advocate
For R4 : Mr.M.Loganathan
Standing Counsel
ORDER
(Order of the Court was made by M. SATHYANARAYANAN, J.)
The petitioner claims to be residing along with his family members
for more than 75 years in the landed property comprised in Survey
No.247/1A, Mecheri Village, Mettur Taluk, Salem District, and it is also
subject to statutory levies in the name of his wife Parvathi. The petitioner
claims to have put up a thatched shed and planned to construct a RCC
construction and he has also been conferred with the benevolent schemes of
the Government of Tamil Nadu, and he has also been issued with Ration
Card, Aadhar Card and Voter Identity Card. The petitioner alleges that, at
the behest of some politicians and high ranking officials, his possession is
sought to be disturbed. Therefore, he filed a suit in O.S.No.19 of 2013 on the
file of the Court of District Munsif, Mettur, against the District Collector,
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W.P.No.1838 of 2021
Salem, the Tahsildar, Mettur and the Executive Officer, Selection Grade
Town Panchayat, Mecheri, Mettur Taluk, for permanent injunction
restraining them from in any manner disturbing the petitioner's peaceful
possession and enjoyment in the suit property either by evicting him from the
property by using force or by any other means. The suit after contest came to
be decreed as prayed for, vide judgment and decree, dated 09.11.2018. No
further appeal has been filed challenging the said judgment, and therefore, it
had become final.
2.The petitioner would further aver that, one K.Chinnusamy, who
had an axe to grind, gave a representation as if the petitioner and his family
members have encroached upon the Government land, and in this regard, he
has filed W.P.No.16720 of 2019, and this Court, while disposing of the said
writ petition, vide order dated 02.12.2019, observed that “since the 8th
respondent along with six others filed a comprehensive suit for declaration
of title in respect of the property in question, if they are so advised, they
are at liberty to work out their remedy before the said forum and pendency
of the suit, in the absence of interim order, is not a bar on the part of the
official respondents to proceed against the encroachments in respect of the
lands in question, in accordance with law” and stipulated an outer time
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W.P.No.1838 of 2021
limit. It is further averred by the petitioner that, based on the said order, the
4th respondent has issued the eviction notice under Section 28(2) of the Tamil
Nadu Highways Act, 2001, and challenging the same, one M.Kalaiselvan
filed W.P.No.19262 of 2020 and it has been disposed of with a direction to
consider and dispose of the petitioner's reply in accordance with law within a
stipulated time frame. The 4th respondent, thereafter, issued an order dated
05.01.2021 under Section 28(2) of the Tamil Nadu Highways Act, 2001, and
challenging the legality of the same, the present writ petition is filed.
3.Learned counsel appearing for the petitioner would submit that,
in the light of the long usage and possession for several decades and that the
petitioner has been conferred with various benevolent schemes of the
Government of Tamil Nadu and that apart, the petitioner has also been issued
with Ration Card, Aadhar Card and other Cards, it may not be fair on the
part of the respondents to allege the land in question in occupation of the
petitioner as a “waterway/waterbody”, and further points out that the entire
area has become a residential colony, and the land and premises of the
petitioner alone has been targeted, and therefore, prays for appropriate
orders.
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W.P.No.1838 of 2021
4.Per contra, Mr.S.Kamalesh Kannan, learned Government
Advocate, appearing on behalf of the respondents 1 to 3, has drawn the
attention of this Court to the proceedings of the 4th respondent, dated
05.01.2021, and would submit that, with regard to the points raised, point by
point rebuttal has been given, and since the provisos to Section 28(2) of the
Tamil Nadu Highways Act, 2001, have been complied with in letter and
spirit, it may not be open to the petitioner to express any grievance, and prays
for dismissal of the writ petition. Attention of this Court was also invited to
the counter affidavit of the 4th respondent.
5.This Court has carefully considered the rival submissions and
also perused the materials placed before it.
6.A perusal of the counter affidavit of the 4th respondent would
disclose that the land comprised in Survey No.247/1A is classified as “Road
Margin” in the A-Register as confirmed by the 3 rd respondent vide his letter,
dated 25.06.2020, and thereafter, the Highways Department sought a
clarification regarding the classification of the said land and in response to the
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W.P.No.1838 of 2021
same, the Sub-Collector, Mettur, has sent a communication, dated
22.10.2020, stating among other things that the entry “Road Margin” was
changed to “Natham” for S.No.247/1A fraudulently, and it has been removed
and the original classification as “Road Margin” has been restored by the
Sub-Collector vide order dated 07.10.2020. It is also the stand of the 4 th
respondent that, despite the suit in O.S.No.19 of 2013 came to be decreed in
the favour of the petitioner, the decree also grants liberty to the concerned
official respondents to proceed further in accordance with law and
accordingly, due process of law has been followed and in compliance of the
earlier orders passed in the writ petition, the objections have been considered
in detail, and hence, prays for dismissal of the writ petition.
7.In the considered opinion of this Court, the sons of the petitioner
as well as the petitioner herein had been granted sufficient opportunity to put
forth their objections, and a perusal of the impugned communication of the 4th
respondent, dated 05.01.2021, would disclose that each and every ground
has been analysed and considered in detail and a conclusion has been
reached for removal of encroachment. Though a faint attempt was made by
the learned counsel appearing for the petitioner by submitting that since the
petitioner is in possession and enjoyment of the land for several decades, it
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W.P.No.1838 of 2021
may not be fair and equitable on the part of the official respondents to evict
him, if the petitioner is very sure of his prescriptive right, he would have
availed the common law remedy, and so far, he has not done so.
8.Since due process of law has been followed and that the
impugned order passed by the 4th respondent also reflects due and proper
application of mind to all the objections raised, this Court finds no error
apparent on the face of the record or any infirmity in the reasons assigned in
the impugned order, and finds no merits in the present writ petition. In the
result, this writ petition is dismissed. However, in the circumstances of the
case, there shall be no order as to costs. Consequently, connected
miscellaneous petition is closed.
9.After the dismissal of the writ petition, the learned counsel
appearing for the petitioner undertakes to file an affidavit of undertaking
praying for an outer time limit of three months from today to vacate and
deliver the vacant and peaceful possession of the land in question and prays
for short accommodation.
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W.P.No.1838 of 2021
10.Post the matter on 11.03.2021 under the caption “For Affidavit
of Undertaking”. Till such time, the 4th respondent shall defer further
proceedings in terms of the impugned order dated 05.01.2021.
(M.S.N., J.) (A.A.N., J.)
04.03.2021
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mkn
Internet : Yes
Index : No
Speaking order
To
1.The District Collector,
Salem,
Salem District.
2.The Revenue Divisional Officer,
Mettur Taluk,
Salem District.
3.The Thasildar,
Mettur Taluk,
Salem District.
4.The Assistant Divisional Engineer,
Highway Department,
Construction and Maintenance,
Omalur,
Salem District.
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W.P.No.1838 of 2021
M. SATHYANARAYANAN, J.
and
A.A.NAKKIRAN, J.
mkn
W.P.No.1838 of 2021
04.03.2021
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