Madras High Court
Duraisamy vs The District Collector on 6 September, 2022
W.P.No.23868 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.09.2022
CORAM :
THE HON'BLE MR.MUNISHWAR NATH BHANDARI, CHIEF JUSTICE
AND
THE HON'BLE MRS.JUSTICE N.MALA
W.P.No.23868 of 2022
and W.M.P.Nos.22867 and 22868 of 2022
1.Duraisamy
2.Senthil Kumar
3.Suresh Kumar
4.Karpagam .. Petitioners
vs
1.The District Collector
Perambalur District.
2.The Revenue Divisional Officer
Office of the Revenue Divisional Officer
Perambalur Division, Perambalur.
3.The Tahsildar
Veppanthattai Taluk
Perambalur District.
4.Subramani
5.Pushpa .. Respondents
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W.P.No.23868 of 2022
Prayer: Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Certiorari calling for the records of the 3 rd
respondent in his proceedings dated 01.06.2022 issued under Section
6(2) of the Tamil Nadu Encroachment Act, 1905 and quash the same
within a time frame fixed by this Hon'ble Court.
For the Petitioners : Mr.G.Ilamurugu
For the Respondents : Mr.P.Muthukumar
1 to 3 State Government Pleader
assisted by Mrs.R.Anitha
Special Government Pleader
ORDER
(Order of the Court was made by
the Hon'ble Chief Justice)
The writ petition has been filed challenging the proceedings
dated 01.06.2022 under Section 6(2) of the Tamil Nadu
Encroachment Act, 1905 (hereinafter referred to as 'the Act of 1905').
It is mainly on the ground that the notice of eviction has been issued
without authority of law, as the land in S.No.764/1 is a Natham land
and thus it does not vest with the Government giving them authority
to evict the petitioners from the said land. It is further submitted
that the petitioners were given patta / assignment of S.Nos.764/25,
764/26 and 764/27. They are residing there peacefully and it is only
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W.P.No.23868 of 2022
at the instance of the private respondents 4 and 5, the assignment
was cancelled. Challenge to the order of cancellation of assignment
has been made by the petitioners by maintaining an appeal, which is
still pending. It is further submitted that since the petitioners were
paying the taxes, for which revenue receipts are enclosed, the official
respondents could not have initiated action under the Act of 1905. It
is only to facilitate the private respondents 4 and 5 that the patta
issued in favour of the petitioners was cancelled and now the
impugned action has been initiated to evict them from the Natham
land. It is also contended that though sufficient space was given to
provide pathway to the private respondents, yet at the instance of
the respondents 4 and 5, the official respondents have caused notice
in an illegal manner.
2. To support his arguments, the learned counsel for the
petitioners relied upon the following judgments.
● T.S.Ravi and another -vs- The District Collector and Others
(W.P.Nos.26234 & 26237 of 2018 dated 11.10.2018).
● The Executive Officer, Kadathur Town Panchayat, Harur Taluk,
Dharmapuri District -Vs- V.Swaminathan and Others [2004 (3)
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W.P.No.23868 of 2022
CTC 270].
● State of Tamil Nadu represented by the District Collector,
Virudhunagar -Vs- Madasami and Others [2012(2) CTC 315]
3. Learned counsel submits that in the aforesaid judgments
cited above it has been held that the Natham land does not belong
to the Government and thus they cannot take action under the Act
of 1905. It is with finding that even if no building has been
constructed on the Natham land, then also no action can be taken
by the State Government. The prayer in the writ petition is thus to
set aside the impugned notice.
4. We have considered the submissions made by the learned
counsel for the petitioners and have gone through the records
placed before the Court.
5. A perusal of the documents on record shows that an
assignment in favour of the petitioners was made for S.Nos.764/25,
764/26 and 764/27. However, it is also a fact that those
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W.P.No.23868 of 2022
assignments were cancelled and the petitioners have filed an appeal
against the cancellation, however there is no interim order to make
the cancellation inoperative during the pendency of the appeal.
The notice under challenge has been given for S.No.764/1 showing
it to be Sarkar Poramboke land. The learned counsel for the
petitioners submits that though the land was recorded as Sarkar
Poramboke, it was reclassified as Natham land and thereby the
notice on the pretext that it is a Sarkar Poramboke land is not
sustainable. We do not find any order on record to indicate
reclassification of the land to be Natham because it cannot be
reclassified without the procedure contemplated under law.
6. The issue would not end here for the reason that the
petitioner preferred a civil suit under Section 26 read with Order VII
Rule 1 of CPC. The suit was filed not only against the private
respondents but also against the official respondents herein. The
said suit is for declaration and permanent injunction. There is
nothing on record to show an injunction in favour of the petitioners.
Since the petitioners could not get an injunction from the Civil
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W.P.No.23868 of 2022
Court, now on the same plea taken in the civil suit, the present writ
petition has been filed by the petitioners to challenge the notice of
eviction.
7. The other issue is even the nature of the land. The
documents on record, more specifically, the order passed by the
Sub-Collector dated 26.02.2021 shows the land to be Sarkar
Poramboke. Though the petitioners made a reference to the
documents to indicate that the land therein ie., S.No.764/1 was
shown to be Sarkar Poramboke land, but in the remarks column it
was referred to be Natham House Site. The remarks also refer to an
order, however a copy of the same has not been enclosed.
Otherwise the issue, whether the land in question is a Natham or
Sarkar Poramboke is the issue raised by the petitioner in the civil
suit filed prior to the filing of the writ petition. It is settled law that
one and the same issue cannot be raised by the parties before two
forums. When the issue had been raised before the Civil Court the
same issue cannot be raised before the High Court, otherwise it may
result in conflict of findings and orders thereupon. The suit for
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W.P.No.23868 of 2022
declaration and injunction was filed on 13.06.2022 while the
impugned notice was notice on 01.06.2022 ie., prior to the filing of
the suit. Yet, for the reasons best known to the petitioners, the said
notice was not challenged while maintaining the suit and when the
petitioners could not get an injunction on the same pleas raised in
the civil suit, the present writ petition has been filed.
8. The writ petition would not be maintainable more so when it
is not admitted by the official respondents that the land in
S.No.764/1 is a Natham land. Rather, the learned Government
Counsel has made a serious contest on the same. The judgments
cited by the learned counsel for the petitioners would be applicable
only when the nature of the land to be Natham is not disputed or
there are materials to prove it to be Natham land and thereby the
Government would have no authority to cause interference in it by
issuing eviction notice. Thus, the judgments cited by the learned
counsel for the petitioners would not be applicable to the facts of the
present case. That apart, according to the order of the Sub-collector
dated 26.02.2021 the land in S.No.764/1 is a Government
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W.P.No.23868 of 2022
Poramboke pathway and therefore the notice for eviction has been
issued by the official respondents.
9. For the reasons given above, the writ petition fails and the
same is dismissed. No costs. Consequently, connected
miscellaneous petitions in W.M.P.Nos.22867 and 22868 of 2022 are
closed.
(M.N.B., CJ.) (N.M., J.)
06.09.2022
Index : Yes/No 2/2
kst
To:
1.The District Collector
Perambalur District.
2.The Revenue Divisional Officer
Office of the Revenue Divisional Officer
Perambalur Division, Perambalur.
3.The Tahsildar
Veppanthattai Taluk
Perambalur District.
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W.P.No.23868 of 2022
The Hon'ble Chief Justice
and
N.Mala, J.
(kst)
W.P.No.23868 of 2022
06.09.2022
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