Madras High Court
R.Kanagaraj vs The Special Officer on 8 December, 2023
Author: G.Chandrasekharan
Bench: G.Chandrasekharan
S.A(MD)No.329 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON 22.11.2023
PRONOUNCED ON 08.12.2023
CORAM
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
S.A(MD)No.329 of 2021
R.Kanagaraj ... Appellant/Respondent/Plaintiff
vs.
1.The Special Officer,
Jamin Nathampatti Panchayat Board Office,
Nathampatti Post,
Chatrapatti Via,
Rajapalayam Taluk,
Virudhunagar District.
2.The Special Officer,
Melarajakularaman Panchayat at
Ayyanapuram,
Chatrapatti Post,
Virudhunagar District.
3.The Block Development Officer,
Rajapalayam Panchayat Union Office,
Rajapalayam,
Virudhunagar District.
4.The District Collector,
Virudhunagar District,
Virudhunagar. ... Respondents/Respondents/Defendants
PRAYER:- Second Appeal filed under Section 100 of Civil Procedure Code,
against the Judgment and decree dated 23.03.2020 made in
A.S.No.58 of 2018 on the file of the Subordinate Court, Srivilliputhur
1/15
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S.A(MD)No.329 of 2021
confirming the judgment and decree, dated 04.09.2018 made in
O.S.No.390 of 2011 on the file of the Additional District Munsif Court,
Srivilliputhur.
For Appellant :Mr.S.M.Anantha Murugan
For Respondents :Mr.N.Muthuvijayan,
Special Government Pleader
JUDGMENT
Challenge is made to the concurrent judgments in
A.S.No.58 of 2018 on the file of the Principal Subordinate Court,
Srivilliputhur and in O.S.No.390 of 2007 on the file of the Additional
District Munsif Court, Srivilliputhur.
2. The appellant/plaintiff filed the suit seeking the relief of
permanent injunction restraining the respondents/defendants from
interfering with the plaintiff’s peaceful possession and enjoyment of the
1st schedule property; the relief of mandatory injunction to remove the
motor pump along with “Sintex” water tank erected in 1st Schedule
Property and for costs. The motor pump along with “Sintex” water tank is
shown as 2nd Schedule Property.
3. The case of the plaintiff is that the suit property bearing
Survey No.1356/4 with an extent of 5 acres 56 cents situate at
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Melarajakularaman Village, Rajapalayam Taluk, Virudhunagar District, is
a Punja land. The said punja land along with a Well, belongs to the
plaintiff. He is in possession and enjoyment of the suit property. Patta
bearing No.416, was also issued in his name. During 2007, in the
absence of the plaintiff, the first defendant put up a hand pump near the
plaintiff’s Well by saying that the hand pump is for the welfare of the
pubic. When the plaintiff attempted to remove the hand pump, the first
defendant lodged a complaint to the Keelarajakularaman police station.
Thereafter, the plaintiff kept quite out of fear. In July, 2011, the hand
pump was converted into motor pump and “Sintex” water tank was put
up. When the plaintiff attempted to remove the “Sintex” water tank, the
first defendant lodged a complaint before the Sub-Inspector of Police,
Keelarajakularaman Police Station. The police directed the plaintiff not to
remove the “Sintex” water tank. On 23.07.2011, the first defendant
attempted to construct a bathroom near the motor pump. The plaintiff
stopped the work and on 25.07.2011, sent a lawyer notice to
defendants 1 and 3 and 4. However, no action was taken by the
defendants. In the said circumstances, the suit was filed for the aforesaid
reliefs.
4. In the written statement of the first respondent, it is stated
that the “Sintex” water tank was put up in 1996 and not in 2007. The
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bore-well was laid 20 years back with Hand Pump and public had been
using the bore well for last 20 years. To provide facility to the public,
“Sintex” water tank was put up in 1996. A submersible motor was
installed in 2010. Plaintiff had never objected the digging of bore-well
putting up of the “Sintex” water tank and now, he filed the suit with ill-
motive. There was a panchayat on 23.07.2011 in connection with this
dispute and in the said panchayat, the plaintiff and his family members
undertook not to disturb the use of bore-well and use of “Sintex” water
tank. The public used to take water in the bore-well during the funeral
rites of a deceased. This has been happening for several years. This place
is also used for preparation of Karagam during temple festival. The suit
property does not belong to plaintiff exclusively. His brothers
Perumalsamy, Anandhasamy, Jeyaraman, Chandran, have also share in
the suit property. They are proper and necessary parties. If the “Sintex”
water tank is removed, general public would be seriously affected.
Therefore, the first defendant prayed for dismissal of the suit.
5. During trial, on the side of the plaintiff, P.Ws.1 and 2 were
examined and Ex.A1 to A10 were marked. On the side of the defendants,
D.Ws.1 and 2 were examined. Exs.B1 and B2 were marked.
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6. On the basis of oral and documentary evidence, the learned
trial Judge though found that the bore-well was dug and “Sintex” water
tank was put up in the land of the plaintiff in S.No.1356/4, dismissed the
suit on the ground that the suit is bad for non-joinder of necessary
parties, namely, the siblings of the plaintiff.
7. Against this judgment, the plaintiff filed appeal in
A.S.No.58 of 2011. The learned First Appellate Judge found that there is
no material to show that the plaintiff had given a police complaint against
digging of bore-well and putting up of “Sintex” water tank etc. In the said
circumstances, the learned First Appellate Judge found that it could only
be concluded that the plaintiff dedicated the land for the use of public
purpose. Putting up a “Sintex” water tank in a small place will not
amount to violation of law. This place has been used for taking water
during funeral rites of a deceased person and during festival time, for
preparing Karagam. In this view of the matter, it can only be presumed
that the plaintiff had voluntarily given the place for public purpose. On
this reasoning, the First Appellate Judge, dismissed the appeal.
Challenging this judgment, the plaintiff/appellant filed this appeal.
8. This Court framed the following substantial questions of law
for consideration in this second appeal:
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“a) Whether the instrumentality of the State can
occupy a private property and put it for public purpose,
even without resorting to acquisition proceedings? ; and
b) Whether the appellant has been deprived of
his right of property guaranteed under Article 300 A of the
Constitution of India and whether this right can be
defeated merely on the ground that there was a delay on
the part of the appellant to approach a competent Court?”
9. The learned counsel for the appellant submitted that the
findings of the Courts below especially the First Appellate Court’s finding
that the plaintiff had voluntarily given this place for public purpose is not
correct and it is against evidence. Plaintiff had been all along opposing
the digging of bore-well, installation of hand pump and thereafter,
submersible motor and “Sintex” water tank. He opposed the digging of
bore-well, putting up of “Sintex” water tank by giving complaint. As the
Government officials were acting against him, he was not able to prevail
upon the police Department to take action against the erring officials.
When he had been all along opposing the use of his land for the purpose
of bore-well and other purposes, the finding of the First Appellate Court
that it should be presumed that the appellant had voluntarily given this
place for public purpose, is not correct. The Government cannot deprive
the property of an individual for public purpose without compensating the
owner of the property. In support of his submission, he produced the
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judgment in Sukh Dutt Ratra and Another v. State of Himachal
Pradesh and Others reported in (2022) 7 SCC 508.
10. In reply, the learned Special Government Pleader appearing
for the respondents submitted that the disputed place is being used by the
general public for several years, at least from 1996, for taking water
during the funeral rites of deceased persons, for preparation of Karagam
during temple festival and for other purposes. It is only a small place and
it is not in 1st item of the suit properties. Though it is claimed in the
plaint that the bore-well was dug in 2007, the suit was filed only in 2011.
In the course of evidence, P.W.1 admitted that the bore-well is in existence
for more than 10 years. Therefore, it is clear that by giving false details,
the suit is filed without any cause of action. The delay would deprive any
right available to the plaintiff. The relief of temporary injunction is
equitable relief. The disputed property is not used by individuals but by
the public in general and therefore, the dismissal of the suit by the Courts
below is right and he seeks to dismiss this appeal.
11. The learned Special Government Pleader relied on the
judgment in Suresh Prakash and others v. Jagdish Raj and others
reported in AIR 1981 Jammu and Kashmir 79, for the proposition that
inordinate delay in instituting the suit will disentitle the plaintiff to seek
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the relief.
12. He also relied on the judgment in National Airport
Authority and others vs. Vijaydutt reported in AIR 1990 Madhya
Pradesh 326, for the proposition that temporary injunction is an
equitable one and that should be exercised judiciously.
13. I have considered the rival submissions and perused the
records.
14. The suit properties are described as 1st Schedule and 2nd
Schedule. The 1st Schedule consists of an extent of 5 acres 56 cents.
Out of this 5 acres 56 cents, the suit 2nd Schedule property is only a small
portion. Trial Court had dismissed the suit on the ground of non-joinder
of proper and necessary parties. Though there is a finding that the
bore-well and “Sintex” water tank situates in the plaintiff’s property, this
finding is not supported by any acceptable evidence.
15. Though the plaintiff had produced Ex.A1 to A10 documents
and defendants produced Exs.B1, B2 documents, from these documents
one cannot come to a definite conclusion that the bore-well and “Sintex”
water tank are available in 1st Schedule Property. The first defendant in
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the written statement has not admitted that the disputed land is in the
plaintiff’s property. It is only stated that bore-well and “Sintex” water tank
were put up in 1996. In the absence of inspection of the property with
the help of Surveyor by a Commissioner, it is difficult to fix whether the
2nd Schedule of the suit property lies within the 1st Schedule of the suit
properties.
16. The trial Court had dismissed the suit mainly on the ground
of non-joinder of siblings of the plaintiff for the reason that they also have
share in the suit property. In the appeal, the learned Appellate Judge
found that one co-owner can maintain a suit on behalf of the other co-
owners. But, proceeded to dismiss the appeal on the ground that it had to
be presumed that the plaintiff had given the disputed land to the welfare
of the public. Such presumption is not correct when the plaintiff had
stoutly disputed the digging of bore-well and putting up of a “Sintex” water
tank, in his land.
17. It is seen that there is some discrepancy with regard to the
period during which bore-well was dug and the “Sintex” water tank was
put up. Though the plaintiff stated in the plaint that bore-well was dug in
2007 and “Sintex” water tank was put up in 2011, during the course of
his evidence, he stated that bore-well is in existence for more than 10
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years. He admitted that karagam is prepared in the disputed land for
several years. He also admitted that three family members used to take
water in the bore-well. Similarly, it is seen from the judgments of the
Courts below that though the first defendant claimed that the bore-well
was dug in 1996, this case of the first defendant is not established.
18. Without a concrete evidence as to whether bore-well is in the
land of the plaintiff, both the Courts below proceeded to dispose the suit
on the premise that bore-well and “Sintex” water tank are in the plaintiff’s
land. This itself is not correct. If really the bore-well and “Sintex” water
tank are available in the plaintiff’s land, it is no doubt that the
Government cannot use the private land without properly compensating
the plaintiff. This is what stated in the judgment reported in (2022) 7
Supreme Court Cases 508(referred to supra).
19. One of the issues that came up for determination before the
Hon’ble Supreme Court in the case of Sukh Dutt Ratra v. State of H.P.,
(2022) 7 SCC 508 is, Whether the State on the ground on delay and laches
can evade its legal responsibility towards those from whom private property
has been expropriated? Answering in negative, the Court held as follows:-
1. The right against deprivation of property unless done in
accordance with procedure established by law, continues
to be a constitutional right under Article 300-A.
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2. A high threshold of legality must be met, to dispossess an
individual of their property, and even more so when done
by the State.
3. The State cannot shield itself behind the ground of delay
and laches. There cannot be a “limitation” to doing
justice.
4. If an argument against relief is founded upon mere delay
(which otherwise would be just) not amounting to a bar by
any statute of limitations, the validity of that defence must
be tried upon principles substantially equitable.
5. Two important circumstances, in such cases are, the length
of the delay and the nature of the acts done during the
interval, which might affect either party and cause a
balance of justice or injustice in taking the one course or
the other, so far as relates to the remedy.
6. The State should be gracious enough to accept its mistake
and promptly act in just and reasonable manner.
7. In the absence of written consent to voluntarily give up
land, property owners would be entitled to compensation
in terms of law.
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8. The State must comply with the procedure for acquisition,
requisition, or any other permissible statutory mode.
9. Delay and laches cannot be raised in a case of a
continuing cause of action, or if the circumstances shock
the judicial conscience of the Court. Condonation of delay
is a matter of judicial discretion, which must be exercised
judiciously and reasonably depending upon the breach of
fundamental rights, and the remedy claimed, and when and
how the delay arose. There is no period of limitation
prescribed for the courts to exercise their constitutional
jurisdiction to do substantial justice.
10.Forcible dispossession of a person of their private
property without following due process of law, was
violative of both their human right, and constitutional
right under Article 300-A.
20. In the case before hand, either the plaintiff or the defendants
had not taken any step for appointment of Advocate Commissioner with
the help of Surveyor to inspect the plaintiff’s property to verify as to
whether 2nd Schedule property lies within the 1st Schedule Property. That
is primarily necessary for the correct disposal of this case.
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21. In this view of the matter, this Court is inclined to sets aside
the judgment made by the First Appellate Court confirming the judgment
of the trial Court to find answer to this vexed question.
22. Accordingly, this second Appeal is allowed and the
Judgment and decree dated 23.03.2020 made in A.S.No.58 of 2018 on the
file of the Subordinate Court, Srivilliputhur, confirming the judgment and
decree, dated 04.09.2018 made in O.S.No.390 of 2011 on the file of
theAdditional District Munsif Court, Srivilliputhur, is set aside and the
matter is remitted back to the First Appellate Court for appointment of an
Advocate Commissioner with the help of qualified Surveyor for inspecting
the plaintiff’s property ie., the 1st Schedule Property to find out whether
the 2nd Second Schedule property lies within the 1st Schedule property. If
needed to allow additional evidence by the parties and dispose of the case
on merits and in accordance with law. No Costs.
08.12.2023
pm
Index:Yes/No
NCC:Yes/No
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To,
1.The Special Officer,
Jamin Nathampatti Panchayat Board Office,
Nathampatti Post,
Chatrapatti Via,
Rajapalayam Taluk,
Virudhunagar District.
2.The Special Officer,
Melarajakularaman Panchayat at
Ayyanapuram,
Chatrapatti Post,
Virudhunagar District.
3.The Block Development Officer,
Rajapalayam Panchayat Union Office,
Rajapalayam,
Virudhunagar District.
4.The District Collector,
Virudhunagar District,
Virudhunagar.
5.The Principal Subordinate Judge,
Principal Subordinate Court,
Srivilliputhur.
6.The Additional District Munsif Court,
Srivilliputhur.
7.The Section Officer,
Vernacular Section,
Madurai Bench of Madras High Court, Madurai.
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G.CHANDRASEKHARAN, J.
pm
08.12.2023
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