Madras High Court
M.Lakshmi vs The Ii Class Executive Magistrate ... on 31 August, 2023
W.P.(MD) No.21286 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 31.08.2023
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
and
THE HONOURABLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
W.P.(MD) No.21286 of 2023
and
W.M.P.(MD)No.17693 of 2023
M.Lakshmi : Petitioner
-vs-
1.The II Class Executive Magistrate cum Tahsildar,
Kadaladi,
Ramanathapuram District.
2.The Executive Officer,
Sayalkudi Town Panchayat,
Ramanathapuram District.
3.R.Muniyasamy : Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India, to
issue a Writ of Certiorarified Mandamus, to call for the entire records
pertaining to the order passed by the first respondent in
Na.Ka.No.B3/617/2018, dated 01.08.2023 and quash the same and
consequently, direct the respondents 1 and 2 not to disturb the petitioner's
possession and enjoyment of shops (five in numbers) being located in S.No.
185/4, in an extent of 0.17.5 ares, Arulmigu Karuppan Temple, Sayalkudi
Group/Sub Division, Kadaladi Taluk, Ramanathapuram District.
For Petitioner : Mr.R.Anand
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W.P.(MD) No.21286 of 2023
For Respondents : Mr.S.P.Maharajan
Special Government Pleader for R1
Mr.D.Sachikumar
Additional Government Pleader for R2
ORDER
[Order of the Court was made by S.S.SUNDAR, J.]
This Writ Petition is filed for issuance of Writ of Certiorarified
Mandamus to quash the order impugned in Na.Ka.No.B3/617/2018, dated
01.08.2023 passed by the first respondent and to direct the respondents 1
and 2 not to disturb the petitioner's possession and enjoyment of shops
located in S.No.185/4, in an extent of 0.17.5 ares in Arulmigu Karuppan
Temple, Sayalkudi Group/Sub Division, Kadaladi Taluk, Ramanathapuram
District.
2. The petitioner states that she is the absolute owner of the property
which is the subject matter of proceedings which is under challenge before
this Court. It is the case of the petitioner that an extent of 17.5 ares in
S.No.185/4 in Sayalkudi Group/Sub Division, Kadaladi Taluk,
Ramanathapuram District is the property of the petitioner. It is the further
case of the petitioner that her husband earlier took the property as a tenant
and subsequently through a document by Samasthanam and that she is in
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W.P.(MD) No.21286 of 2023
possession for about 40 years. Quite contrary to that, the learned counsel
appearing for the petitioner also relied upon a sale deed which was marked
as Ex.B.22 in a suit filed in O.S.No.19 of 2004 by a third party as against
the petitioner's husband and the petitioner. In Paragraph No.18 of the
judgment in S.A.(MD)No.777 of 2010, it is seen that the petitioner and her
husband who were defendants 1 and 2 in the suit filed by the appellant
before this Court relied upon a document, namely, the sale deed dated
20.05.2002. It is seen that in the suit, the defence taken by the petitioner
and her husband was that the property was purchased by the petitioner's
husband under the sale deed from one Annasamy Pandian. It is seen that
the said defence was not accepted by the Court as the petitioner or her
husband had not produced any document to prove the title of the vendor of
the petitioner's husband. The stand taken by the petitioner that the
property was taken on lease from the temple is contrary to the title pleaded
in the civil proceedings. Therefore, it would only be that the petitioner has
no consistent case as to her title. It is admitted now before this Court that
the dispute in relation to the temple is pending before the Civil Court as
regards the character of the temple whether it is a private or public temple.
That is not relevant to decide the title of the property. The other documents
that are relied upon by the petitioner's counsel would only show that the
dispute is in relation to the character of the temple. It has nothing to do
with the property which is the subject matter of the impugned order.
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W.P.(MD) No.21286 of 2023
3. The petitioner has given several facts which would not lead us to
believe the case of the petitioner that she is the owner of the property. From
the “A” Register produced before this Court, it would only seen that the
property in S.No.185/4 is classified as “Cirkar Poramboke”. Even the
temple, is shown only in the column 12 to mean that a temple is in
encroachment of portion of the property in S.No.185/4. Therefore, the
temple can never be considered as owner of the property even as per the
revenue records marked by the petitioner before this Court. Without a
semblance of title, on the strength of possession as lessee or as a
purchaser, the petitioner has come forward with this writ petition,
challenging the order of Tahsildar, who has conducted an enquiry and
prepared a report pursuant to the direction of this Court earlier in a writ
petition filed by one R.Muniyasamy in W.P.(MD)No.4076 of 2023 for
removal of encroachment. While disposing of the same by order dated
28.02.2023, the Hon'ble Division Bench of this Court, has directed the
Tahsildar to consider the representation of the writ petitioner on merits and
in accordance with law and to remove the encroachment if any found after
enquiry. A further direction was also issued to the official respondents to
give sufficient opportunity of personal hearing to all persons concerned
including one Ayyamperumal. However, the direction for removal of
encroachment is only in respect of S.No.185/4 measuring an extent of 14.5
ares.
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W.P.(MD) No.21286 of 2023
4. Pursuant to the direction of this Court in the writ petition filed by
a third party for removal of encroachment, the Tahsildar has initiated
proceedings and conducted an enquiry before taking action for removal of
encroachment. During enquiry, it is admitted by the petitioner that a notice
was issued to the petitioner and other encroachers in the Government
property. After hearing the petitioner and others, the Tahsildar has
observed that an extent of 17.5 ares in S.No.185/4 is a Government
poramboke and that the petitioner and others have encroached by putting
up shops in the property of Government. Therefore, a decision was taken
by the impugned order for removal of encroachment probably in the
manner and in accordance with further directions found in the earlier writ
petition. Therefore, this Court finds no merit in this writ petition.
5. It is needless to say that the respondents will initiate action after
following the procedure as contemplated under the Tamil Nadu Land
Encroachment Act, 1905 before carrying out eviction. It is now reported
that a notice under Section 7 of the Tamil Nadu Land Encroachment Act,
1905 has been issued to the petitioner. Though the learned counsel has no
instructions on that, the learned Additional Government Pleader has
produced a copy of the same. If that is so, the further action will be taken
after holding enquiry considering the objections if any received from the
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W.P.(MD) No.21286 of 2023
petitioner.
6. With the above observations, the Writ Petition stands dismissed.
No costs. Consequently, connected miscellaneous petition is closed.
[S.S.S.R., J.] [D.B.C., J.]
31.08.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
sji
To
1.The II Class Executive Magistrate cum Tahsildar,
Kadaladi,
Ramanathapuram District.
2.The Executive Officer,
Sayalkudi Town Panchayat,
Ramanathapuram District.
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W.P.(MD) No.21286 of 2023
S.S.SUNDAR, J.
and
D.BHARATHA CHAKRAVARTHY, J.
sji
W.P.(MD) No.21286 of 2023
31.08.2023
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