Madras High Court
Ar.Chandrasekar vs The Special Commissioner & on 6 October, 2021
W.P(MD)No.14575 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 06.10.2021
CORAM:
THE HONOURABLE MR.JUSTICE M.DURAISWAMY
AND
THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR
W.P(MD)No.14575 of 2021
and
W.M.P(MD)Nos.11506, 11507 and 14248 of 2021
AR.Chandrasekar ... Petitioner
Vs.
1.The Special Commissioner &
Commissioner for Land Administration,
Chepauk, Chennai-600 005.
2.The District Collector,
Sivagangai District.
3.The Tahsildar,
Thiruppathur Taluk,
Sivagangai District. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India, to issue a Writ of Certiorarified Mandamus calling for the
records relating to the impugned order of the first respondent in
RC.No.T2/23748/2013, dated 28.07.2021 confirming the order of
the impugned order of the second respondent in
Roc.E4/22003/2012, dated 25.08.2013 and impugned order of the
third respondent, dated 15.10.2012 served on the petitioner in
Na.Ka.A5/17456/2008, dated 19.10.2012, quash the same and
consequently direct the respondents herein to execute assignment
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W.P(MD)No.14575 of 2021
for 23 cents of land in Survey No.49 in lieu of 40 cents patta land in
survey No.174/2 in K.Vairavanpatti Group, Thirupathur Taluk,
Sivagangai District relinquished for panchayat land as per Board
Standing Order 26-A, within a reasonable time as may be fixed by
this Court.
For Petitioner : Mr.Srinivasa Raghavan
For Respondents : Mr.B.Saravanan
Government Advocate
ORDER
(Order of the Court was made by M.DURAISWAMY,J.)
The petitioner has filed the above Writ Petition to issue a Writ
of Certiorarified Mandamus to call for the records relating to the
impugned order of the first respondent, dated 28.07.2021,
confirming the order of the second respondent, dated 25.08.2013
and the order of the third respondent, dated 15.10.2012 and quash
the same and consequently direct the respondents to execute
assignment for 23 cents of land in Survey No.49 in lieu of 40 cents
patta land in Survey No.174/2 in K.Vairavanpatti Group, Thirupathur
Taluk, Sivagangai District, relinquished for panchayat land as per
Board Standing Order 26-A.
2. It is the case of the petitioner that he purchased patta
lands in Survey Nos.171, 172 and 174/1 in K.Vairavanpatti Village
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W.P(MD)No.14575 of 2021
Panchayat, Thiruppathur Taluk, Sivagangai District from one Azhagu
Meenal, W/o Subramanian Pillai, on 17.09.2003 under a registered
sale deed. The vendor of the petitioner purchased the entire land in
Survey No.174 by a registered sale deed, dated 24.10.1963 and
acquired Survey Nos.171 and 172 through registered Will, dated
19.04.1994 executed by her husband. After the purchase, the
petitioner obtained patta in his name and put up construction
including a dwelling house and a temple after getting approval from
the local authorities. According to the petitioner, the property was
assessed to property tax and also he obtained electricity connection
from the TANGEDCO. While so, on a complaint made by his
neighbour alleging that he encroached the water body in
Maravanendal Kanmoi in Survey No.49, the third respondent issued
a notice in the year 2008 and after field inspection and verification,
the authorities found that no encroachment was made by the
petitioner. The third respondent also submitted a report to that
effect to the second respondent. Again in the year 2012, at the
instance of the petitioner's neighbour, the same issue was raked up
and proceedings were initiated under the Tamil Nadu Land
Encroachment Act, for the removal of encroachment without
conducting any field inspection or identifying the alleged
encroachment.
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W.P(MD)No.14575 of 2021
3. It is also the case of the petitioner that when the panchayat
road was to be developed during the year 1968-1969, there was
exchange of patta land by the petitioner's vendor in Survey No.174
by offering 40 cents of her patta land for the formation of the
panchayat road under Board Standing Order 26-A in lieu of 23 cents
in Survey No.49. The procedure is by relinquishment of right in
patta land under BSO 26-A and according to the petitioner, the
Revenue Authorities should have issued assignment for 23 cents in
Survey No.49. After the exchange of 40 cents in Survey No.174, the
said Survey Number was divided as Survey No.174/2, which is a
panchayat road. According to the petitioner, the entire extent of
Survey No.49 is not a Kanmoi in entirety, but it is of mixed
character of Kanmoi on the east of Survey No.49 and vast extent of
vacant land on its west. Across the western portion, there is a pucca
metal thar road of Village panchayat laid in 1972. On the east of
panchayat road, there are row of electrical polls and on the west of
panchayat road, electrical transformer is erected. The panchayat
road, transformer and electrical poles situate on the west of the
Kanmoi in Survey No.49, whereas the subject land measuring an
extent of 23 cents in Survey No.49 situate on the further west of
the said panchayat road, transformer and electrical poles. Thus,
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W.P(MD)No.14575 of 2021
according to the petitioner, Survey No.49 is not a Kanmoi in
entirety.
4. The petitioner also contended that without taking into
account any of the above details, the authorities failed to issue
assignment deed for the land in respect of 23 cents in Survey No.
49, in accordance with Board Standing Order 26-A and erroneously
treated the petitioner as an encroacher of the water body.
5. The petitioner has also filed a civil suit in O.S.No.32 of
2012, on the file of the Additional District Court, Sivagangai against
the respondents 2 and 3 for declaration and injunction and the said
suit is pending. According to the petitioner, the orders passed by
the respondents are erroneous for the reason that they have not
taken into consideration the case of the petitioner in a proper
manner.
6. There cannot be any second opinion with regard to the
removal of encroachment made in a water body. But, before
coming to the said conclusion, the authorities should establish that
the land in question lies in a water body.
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W.P(MD)No.14575 of 2021
7. In the pending civil suit in O.S.No.32 of 2012, on the file of
the Additional District Court, Sivagangai, the petitioner took out an
application seeking for appointment of Advocate Commissioner in
I.A.No.17 of 2017 and the trial Court appointed an Advocate
Commissioner to note down the physical features. The Advocate
Commissioner has also filed a report along with a plan before the
trial Court. The report of the Advocate Commissioner and the plan
have been annexed in the additional typed set of papers, filed by
the learned Counsel for the petitioner. Mr.B.Saravanan, learned
Government Advocate appearing for the respondents has not
disputed the location of the petitioner's land as per the Advocate
Commissioner's plan.
8. On a perusal of the Advocate Commissioner's report, it
could be seen that he inspected and surveyed the land in question
with the assistance of Firka surveyor, the Assistant Engineer of
Public Works Department, K.Vairavanpatti Group Village
Administrative Officer and the President of K.Vairavanpatti
Panchayat. On a perusal of the report of the Advocate
Commissioner and the plan annexed to it, it could be seen that the
Kanmoi situates in a portion of the land in Survey No.49 on the
eastern side and in the very same Survey Number, there is a North-
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W.P(MD)No.14575 of 2021
South panchayat thar road which has been laid on the west of the
Kanmoi. Further, west of the panchayat thar road, the land
belonging to the petitioner in Survey Nos.172 and 174 is situated.
The Advocate Commissioner's report and the plan clearly
established that the petitioner's land situates only on the west of
the panchayat thar road and not on the east of the panchayat thar
road, where the Kanmoi situates.
9. When the panchayat had laid North-South road in Survey
No.49 and also in Survey No.174/2, which was given by the vendor
of the petitioner as early as in 1968-1969, it cannot be stated that
the petitioner had encroached the water body. Unless the
authorities found that the North-South panchayat thar road itself is
an encroachment on the water body, the petitioner cannot be said
to be an encroacher of the Kanmoi. It cannot be disputed that the
North-South panchayat thar road divides the petitioner's land and
the Kanmoi. The respondents have not considered the case of the
petitioner in a proper manner. The respondents should have
conducted field inspection before coming to the conclusion that the
petitioner is an encroacher. Since the panchayat road has been laid
several decades ago and the same is dividing the petitioner's land
and the Kanmoi on the eastern side of the petitioner's land, the
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W.P(MD)No.14575 of 2021
respondents should not have come to the conclusion that the
petitioner had encroached the Kanmoi. There is nothing on record
to establish that the petitioner had encroached the land on the east
of the North-South panchayat thar road.
10. When there is no evidence to establish that the petitioner
had encroached the land on the east of the North-South panchayat
thar road, there cannot be any encroachment of the Kanmoi, which
lies on the east of the North-South panchayat thar road. The
respondents have not given any finding as to the existence of the
North-South panchayat thar road on the west of the Maravanendal
Kanmoi. Had it been taken into consideration by the respondents,
they would not have come to the conclusion that the petitioner had
encroached the Kanmoi.
11. In the judgment in Government of Andhra Padesh Vs.
Thummala Krishna Rao and Another reported in (1982)2
Supreme Court Cases 134, the Honourable Supreme Court held
that the summary proceedings for removal of encroachment can be
initiated only where unauthorised occupation of Government
property is not disputed, but where title to the land is bona fide
disputed by the occupant, such dispute must be adjudicated not by
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W.P(MD)No.14575 of 2021
the summary proceedings, but by a competent civil Court. Further
the Honourable Apex Court held that the bona fides of the
occupant's claim can be inferred from his occupation for a long
period.
12. It is not the duration, short or long, of encroachment that
is conclusive of the question whether the summary remedy
prescribed by the Act can be put into operation for evicting a
person. What is relevant for the decision of that question is more
the nature of the property on which the encroachment is alleged to
have been committed and the consideration whether the claim of
the occupant is bona fide.
13. The documents produced by the petitioner, in support of
his case, clearly established that he is in possession and occupation
of the land on the west of the North-South panchayat thar road and
not on the east of the said road. When he is not in possession and
occupation of the land on the east of the North-South panchayat
thar road, he cannot be construed as an encroacher. In such view
of the matter, the orders passed by the respondents are liable to be
set aside. Accordingly the same are set aside.
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W.P(MD)No.14575 of 2021
14. So far as the execution of assignment for 23 cents of land
in Survey No.49 in lieu of 40 cents of patta land in Survey No.174/2
in K.Vairavanpatti Group, Thiruppathur Taluk as per Board Standing
Order 26-A is concerned, the petitioner is directed to produce all the
relevant documents before the concerned authority and along with
an application for assignment and on receipt of the same, the
authorities shall pass orders in accordance with law, within a period
of three months from the date of submission of the application and
the documents.
15. With the above observations, the Writ Petition is allowed.
No costs. Consequently, the connected Miscellaneous Petitions are
closed.
[M.D.,J] [K.M.S.,J.]
06.10.2021
Index :Yes/No
Internet :Yes/No
SSL
Note :
In view of the present lock
down owing to COVID-19
pandemic, a web copy of the
order may be utilized for
official purposes, but,
ensuring that the copy of the
order that is presented is the
correct copy, shall be the
responsibility of the
advocate/ litigant concerned.
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W.P(MD)No.14575 of 2021
To
1.The Special Commissioner &
Commissioner for Land Administration,
Chepauk, Chennai-600 005.
2.The District Collector,
Sivagangai District.
3.The Tahsildar,
Thiruppathur Taluk,
Sivagangai District.
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W.P(MD)No.14575 of 2021
M.DURAISWAMY,J.
and
K.MURALI SHANKAR,J.
SSL
W.P(MD)No.14575 of 2021
06.10.2021
https://www.mhc.tn.gov.in/judis/
