Madras High Court
K.Chandrasekaran vs The District Collector on 17 June, 2022
Rev.Aplw.No.89 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17.06.2022
CORAM :
THE HON'BLE MR.MUNISHWAR NATH BHANDARI, CHIEF JUSTICE
AND
THE HON'BLE MRS.JUSTICE N.MALA
Review Application (Writ) No.89 of 2022
K.Chandrasekaran .. Applicant
vs
1. The District Collector
District Collectorate Office
Palladam Road
Tiruppur.
2. The Tahsildar
Tahsildar Office
Avinashi Taluk – 641 654.
3. The Executive Officer
Eetiveerampalayam Panchayat
Tiruppur Taluk
Tiruppur – 641 666.
4. The Village Administrative Officer
Eetiveerampalayam Panchayat
Avinashi Taluk – 641 666.
5. Ayyavu .. Respondents
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Rev.Aplw.No.89 of 2022
Prayer : Review Petition filed against the order dated 5.1.2022 passed
in W.P.No.27555 of 2021.
For the Applicant : Mr.Murugamanickam
Senior Counsel
for Ms.S.Akila
For the Respondents : Mr.J.Ravindran
Additional Advocate General
assisted by
Mr.A.Selvendran
Special Government Pleader
for respondents 1 to 4
ORDER
(Order of the Court was made by the Hon'ble Chief Justice)
The review application has been filed to seek review of the
order dated 5.1.2022 passed in W.P.No.27555 of 2021.
2. The order aforesaid was passed on a writ petition preferred
by the review applicant seeking a direction on the respondent
authorities to remove the encroachment made by the temple in
S.No.376, classified as “Cart Track”.
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Rev.Aplw.No.89 of 2022
3. The learned Single Judge dismissed the writ petition finding
that the temple was constructed 20 years back by the local
residents and many families worship at the temple and are doing
daily pooja. It was also observed that as per the 'A' Register, the
land in S.No.376 is classified as “Government Poramboke” - “Cart
Track” and the cart track runs at Perumanallur – Nambiyur Road,
with other district road, and that the temple is situated in the corner
of the road without any hindrance to public passage.
4. Learned counsel appearing for the review applicant submits
that the matter was heard on virtual mode, where he was not given
access to the report submitted by the Government Pleader and
otherwise it is without disposing of the application for impleadment
of the State Highways Department, which has control over the State
Highways and other roads as given under Section 3 of the Tamil
Nadu Highways Act, 2001. It is the Highways Department which
could have taken action in the matter to remove the encroachment
made by the temple, but in the absence of their impleadment, the
matter could not have been answered by the other departments
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Rev.Aplw.No.89 of 2022
and, therefore, it is submitted that the judgment in question
deserves to be modified and the application for impleadment of
State Highways Department be allowed and thereupon writ petition
matter may be heard afresh.
5. It is further submitted that the writ petition was filed
immediately after the rights settled in favour of the review applicant
after partition of the ancestral property and as the review applicant
is residing in the ancestral property, his rights are affected by the
encroachment.
6. We have considered submissions made by learned counsel
for the review applicant and perused the records.
7. Two grounds have been taken by the review applicant to
seek review of the order dated 5.1.2022. The first issue is
regarding a report submitted by the Government Pleader, a copy of
which was not furnished to the review applicant. It could not be
clarified as to why the petition was argued without asking for the
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Rev.Aplw.No.89 of 2022
copy of the report. We further find that the report has not affected
the rights of the review applicant in any manner, rather it was to
endorse that a cart track was carved out. The issue of
encroachment was dealt with by the court thereupon and finding
that the temple exists in the corner without causing any hindrance
to the public passage, the writ petition was dismissed. The said
finding has not been challenged and a challenge is made to the
finding that the temple was constructed 20 years back. According to
the review applicant, the temple was constructed five years back.
The aforesaid issue would be taken into consideration after dealing
with the second issue.
8. The second issue is regarding non-consideration of the
application for impleadment of the State Highways Department
before passing the impugned order. It could not be explained again
as to why it was not brought to the notice of the court while arguing
the writ petition that an application for impleadment is pending,
with a request to decide such application first. There was no
request to the court regarding the aforesaid and even otherwise
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Rev.Aplw.No.89 of 2022
that cannot be a ground because the review applicant knowing well
that the State Highways Department would be relevant party, did
not implead it while filing the writ petition.
9. In any case, the specific finding of the learned Single Judge
is that the temple exists in the corner of the road without any
hindrance to public passage. From a perusal of the photographs on
record, the obstruction, as alleged on the cart track, is not made
out.
10. The temple is said to have been constructed 20 years back
and, according to the review applicant, it was constructed five
years. The question would be why the review applicant did not
immediately file a suit for injunction so as to stop the construction.
The review applicant allowed the temple to raise the construction
and when it was fully completed and the temple became
operational, then after five years, filed a writ petition to remove it.
11. Learned counsel for the review applicant was specifically
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Rev.Aplw.No.89 of 2022
asked to explain as to why he or his ancestors did not take action to
stop the construction, if raised by the temple obstructing the cart
track. No reason could be given other than to say that the right of
the review applicant got settled after the partition of the property.
In that case, the ancestors of the review applicant should have filed
a case and if they failed to do so, the review applicant cannot have
a better right to justify the lapse. We, therefore, do not find it to
be a bona fide litigation.
Finding no reason to entertain the review application, the
same is dismissed. No costs.
(M.N.B., CJ.) (N.M., J.)
17.06.2022
Index : Yes/No
sasi
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Rev.Aplw.No.89 of 2022
To:
1. The District Collector
District Collectorate Office
Palladam Road
Tiruppur.
2. The Tahsildar
Tahsildar Office
Avinashi Taluk – 641 654.
3. The Executive Officer
Eetiveerampalayam Panchayat
Tiruppur Taluk
Tiruppur – 641 666.
4. The Village Administrative Officer
Eetiveerampalayam Panchayat
Avinashi Taluk – 641 666.
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Rev.Aplw.No.89 of 2022
THE HON'BLE CHIEF JUSTICE
AND
N.MALA,J.
(sasi)
Review Application (Writ) No.89 of 2022
17.06.2022
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