Madras High Court
K.Malaimaran vs The Tahsildar on 22 June, 2022
W.P.(MD)No.12783 of2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22.06.2022
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
and
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.P(MD)No.12783 of 2022
and
W.M.P(MD)No.9076 of 2022
K.Malaimaran ... Petitioner
Vs.
1.The Tahsildar,
Thiruppuvanam Taluk Office,
Thiruppuvanam, Sivagangai District.
2.The Block Development Officer,
Thiruppuvanam Union Office,
Thiruppuvanam, Sivagangai District.
3.The President,
Keeladi Panchayat Union, Keeladi,
Thiruppuvanam Taluk, Sivagangai District.
4.Thangaraj ... Respondents
Prayer: Writ Petition filed under Article 226 of Constitution of India, to
issue a Writ of Certiorarified Mandamus, to call for the records
pertaining to the impugned notice in No.3/22, dated 17.06.2022 issued
by the third respondent and to quash the same as illegal and
consequently, to direct the respondents 1 to 3 to refrain themselves from
taking any further action upon the petitioner's peaceful possession and
enjoyment in the property comprised in Natham S.Nos.224/3 and 224/4
situated at Pasiyapuram Village, Keeladi Post, Thiruppuvanam Taluk,
1/9
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W.P.(MD)No.12783 of2022
Sivagangai District till the disposal of the suit in O.S.No.340 of 2019 on
the file of the Subordinate court, Manamagadurai.
For Petitioner :Mr.T.Indrachithu
For R1 to R3 :Mr.S.P.Maharajan
Special Government Pleader
For R4 :Mr.N.Satheeshkumar
Additional Government Pleader
***
ORDER
(Order of the Court was made by S.S.SUNDAR, J.)
This Writ Petition has been filed to quash the impugned notice,
issued by the third respondent, dated 17.06.2022, and for a
consequential direction to direct the respondents 1 to 3 to refrain
themselves from taking any further action upon the petitioner's peaceful
possession and enjoyment in the property comprised in Natham Survey
Nos.224/3 and 224/4 situated at Pasiyapuram Village, Keeladi Post,
Thiruppuvanam Taluk, Sivagangai District till the disposal of the suit in
O.S.No.340 of 2019 on the file of the Subordinate Court, Manamadurai.
2.Heard Mr.T.Indrachithu, learned Counsel for the petitioner,
Mr.N.Satheeshkumar, learned Additional Government Pleader, who takes
notice on behalf of first respondent and Mr.S.P.Maharajan, learned
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W.P.(MD)No.12783 of2022
Special Government Pleader, who accepts notice for the respondents 2
and 3.
3.It is the case of the petitioner that the petitioner has made a
representation before the respondents for grant of patta in respect of the
property in Natham Survey No.224/4 situated at Pasiyapuram Village,
Keeladi Post, Thiruppuvanam Taluk, Sivagangai District in favour of Sri
Kallimuthu Mariamman Thirukovil and thereafter, filed a Writ Petition in
W.P.(MD)No.11776 of 2017 for issuance of a Writ of Mandamus to direct
the third respondent to consider the said representation. This Court by
order, dated 27.06.2017, gave a direction to the third respondent to
consider the representation of the petitioner by providing opportunity to
all the necessary parties and pass appropriate orders on merits. While
passing the said order, this Court has taken note of the fact that the land
in S.No.224/3 is being used as a pathway by the pilgrims and the
petitioner has made representation to grant patta in respect of the land
in question in favour of the temple.
4.However, by a subsequent order in a Writ Petition in
W.P.(MD)No.23118 of 2017, filed by one S.Thangaraj, the Division Bench
of this Court, by order dated 14.09.2021, directed the Tahsildar
concerned to consider the representation of the petitioner therein, who
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W.P.(MD)No.12783 of2022
have stated that the petitioner herein and others have encroached into
certain lands in S.Nos.174/10, 24, 25, 223 and 224/1, 2 and 3. Pursuant
to the direction of this Court in the two Writ Petitions, the petitioner filed
another Writ Petition before this Court in W.P(MD)No.5539 of 2022 for
issuance of a Writ of Mandamus directing the respondents to refrain
themselves from taking any further action upon the petitioner's peaceful
possession and enjoyment in respect the property comprised in
S.Nos.224/3 and 224/4 situated at Pasiyapuram Village, Keeladi Post,
Thiruppuvanam Taluk, Sivagangai District till the disposal of the suit in
O.S.No.340 of 2019 on the file of the Subordinate Court,
Manamagadurai. This Court, after hearing the petitioner and the
respondents, passed an order, dated 29.03.2022. Paragraph 4 of the said
order reads as follows:
“4.On instructions, the learned Special Government Pleader and
the learned Government Advocate appearing for the respondents 1 and 2
would further submit that the petitioner in this writ petition has not
appeared in the enquiry proceedings, which is disputed by the learned
counsel appearing for the petitioner that no notice of hearing was given to
the petitioner in the enquiry proceedings. The said statement is recorded.
The learned Special Government Pleader and the learned Government
Advocate appearing for the respondents 1 and 2 would further submit that
the official respondents will strictly abide by the directions given by the
Division Bench of this Court in WP(MD)No.23118 of 2017 dated 14.09.2021.
The said undertaking is recorded.”
5.The petitioner and other villagers have also filed a suit in
O.S.No.227 of 2017 before the Subordinate Court, Sivagangai for
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W.P.(MD)No.12783 of2022
declaration of title and consequential permanent injunction in respect of
a property in S.Nos.224/3 and 224/4. It is to be noted that the petitioner,
who has come forward with a request to grant patta before the
Government and requested this Court to consider their representation for
grant of patta in respect of the land, in respect of which they claim title
in favour of temple on the basis of encroachment and has now filed the
Writ Petition not to take any action till the disposal of the suit. Therefore,
the intention appears to be obvious that the petitioner has encroached
into the property, which is classified as street and in such circumstances,
this Court does not find any bona fide in the present Writ Petition,
wherein, the petitioner has challenged the impugned notice, in which, the
petitioner was asked to remove the encroachment by keeping the statues
of deities of temple in the road portion.
6.From the facts, it is seen that the petitioner has claimed title
based on the classification of land. It is admitted that the temple is
located in a property, which is classified as natham. The property, which
is classified as natham is meant for residential purpose and it is a
residential portion of a village. The particular land, which is classified as
natham, may consists of plots and other portions, which may be required
for the use of everyone and does not belong to any individual. Those
properties, which are not in the exclusive possession of individual and
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W.P.(MD)No.12783 of2022
which are treated as communal land, vest with the Government and
therefore, the general principles that the property, which is classified as
natham, does not belong to the Government, cannot be applied when it is
a case that the property is part of the street or communal land, which
meant for the whole community, as such. Every street vest with local
body and hence, no one can claim right. Even the Government or
revenue department cannot issue patta to a temple or individual in
respect of any portion of street or public road.
7.Hence, the petitoiner's claim of title on the basis of
classification of the land does not lend support to the stand taken by him
before the Civil Court. The impugned notice clearly indicates that the
petitioner has encroached into the common area. Therefore, following
the judgment of Hon'ble Supreme Court earlier in Madhavara Rao
Cschindia's case, it is made clear that even an encroacher is entitled to
be heard and the petitioner should be put on notice before an order is
passed under the Tamil Nadu Land Encroachment Act in case, the local
body is unable to evict the encroachment.
8.It is to be noted that in the order, dated 27.06.2017 in the Writ
Petition filed by the petitioner in W.P.(MD)No.11776 of 2017, this Court
has recorded the stand of the petitioner that the land in S.No.224/3 is
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W.P.(MD)No.12783 of2022
being used as a pathway by the pilgrims, who are visiting the temple.
However, after admitting that the land in S.No.224/3 is used as a
pathway, the petitioner’s claim that the temple is entitled to get patta
cannot be accepted. It is to be seen that the local body is not made as a
prty to the suit.
9.Though in the earlier Writ Petitions, this Court directed the
respondents to consider the representation of the petitioner, this Court is
unable to find any merit in such a representation to grant patta in
respect of a land, which is being used as a pathway by the public. Since
it is admitted that the property in S.No.224/3 is a pathway and the
petitioner and others have encroached the same by putting up the
statues of deities, this Court has no hesitation to hold that the
encroachment is admitted and it should be removed. The petitioner has
submitted that no procedure is followed before directing the petitioner to
remove the encroachment within seven days.
10.The learned Additional Government Pleader, on instructions,
submitted that the encroachment was identified by the Tahsildar and
thereafter, the Executive Officer/President of the Panchayat, issued the
impugned order. This Court does not find any illegality in the order, as it
is in accordance with Section 131(2) of the Tamil Nadu Panchayats Act,
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W.P.(MD)No.12783 of2022
1994. Even if the local body is unable to remove the encroachment, it is
open to the local body to approach the Tahsildar, who in turn is directed
to take action under the provisions of the Tamil Nadu Land
Encroachment Act within a period of four weeks from the date of receipt
of such representation being made by the local body.
11.It is made clear that the petitioner, who admits in the prior
proceedings that the property in S.No.224/3 is a pathway is not entitled
to claim patta in respect of the land either before the Government or
from the revenue department. Therefore, the claim before the Civil
Court in respect of S.No.224/3 is also unsustainable.
12.With the above directions, this Writ Petition is dismissed. No
costs. Consequently, connected miscellaneous petition is closed.
[S.S.S.R., J.] [S.S.Y., J.]
22.06.2022
Index : Yes / No
cmr
To
1.The Tahsildar,
Thiruppuvanam Taluk Office,
Thiruppuvanam, Sivagangai District.
2.The Block Development Officer,
Thiruppuvanam Union Office,
Thiruppuvanam, Sivagangai District.
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W.P.(MD)No.12783 of2022
S.S.SUNDAR, J.
and
S.SRIMATHY, J.
cmr
W.P(MD)No.12783 of 2022
22.06.2022
https://www.mhc.tn.gov.in/judis
