Madras High Court
S.Azhagar vs The District Collector on 5 June, 2023
W.P.(MD) No.15439 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 05.06.2023
CORAM
THE HONOURABLE Ms.JUSTICE P.T.ASHA
W.P.(MD) No.15439 of 2021
and
W.M.P.(MD) Nos.12343 and 12345 of 2021
1.S.Azhagar
2.S.Velu
3.C.Durai ... Petitioners
/vs./
1.The District Collector,
O/o. District Collectorate,
Sivagangai District.
2.The District Revenue Officer,
District Revenue Office,
Sivagangai.
3.The Revenue Divisional Officer,
Revenue Divisional Office,
Sivagangai.
4.The Tahsildar,
Kalayarkovil Taluk,
Sivagangai District.
1/8
https://www.mhc.tn.gov.in/judis
W.P.(MD) No.15439 of 2021
5.M.Murugesan ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for
issuance of Writ of Certiorarified Mandamus, calling for the records pertaining to
the impugned order in PaMu.B4/28816/2019 dated 15.07.2021 on the file of the
Respondent No.2 and quash the same as illegal and consequently for directing to
the Respondents No.2 to 4 not to cancel the Pattas in the name of the petitioners
in respect of S.Nos.73/3A, 73/3B, 76/3A, 76/3B and 76/3C situated at
Usilankulam Village, Kalayarkovil Taluk, Sivagangai District within the time
stipulated by this Court.
For Petitioners : S.Rajasekar
For R1 to R4 : Mr.D.Ghandiraj
Special Government Pleader
For R5 : Mr.K.P.Narayanakumar
ORDER
The order passed by the second respondent cancelling the patta granted in
the name of the petitioners herein and transferring the same in the name of the
fifth respondent is the subject matter of challenge in the above writ petition.
https://www.mhc.tn.gov.in/judis
W.P.(MD) No.15439 of 2021
2.It would be necessary to allude briefly to the facts, which has culminated
in the filing of this writ petition.
3.It is the case of the petitioners that the lands, which are the subject matter
of this writ petition, namely, S.Nos.73/3A, 73/3B, 76/3A, 76/3B and 76/3C
belonged to their father, Subbiah. The petitioners are his three sons. Their father
had obtained patta in respect of these properties and was enjoying the same
without any hindrance. On his death, the petitioners herein had orally divided the
properties 35 years ago and they had been allotted pattas under the UDR. The
petitioners have also been regularly remitting the tax without any default. The
third petitioner, who is the third son of Subbiah, inherited his father's share and
was enjoying the same.
4.While so, the fifth respondent was attempting to encroach into the subject
property by trying to put up an iron fence by annexing the petitioners' lands to his
lands. Therefore, the petitioners had filed a suit for permanent injunction in
O.S.No.168 of 2014 on the file of the District Munsif Court, Sivagangai. The
learned District Munsif, by judgment and decree dated 13.04.2018, was pleased to
https://www.mhc.tn.gov.in/judis
W.P.(MD) No.15439 of 2021
decree the suit as prayed for, against which the fifth respondent had filed A.S.No.
80 of 2018, which appeal was pending till recently. The fifth respondent after
loosing the suit had also moved the second respondent for cancelling the patta
granted in the name of the petitioners. Notice was issued to the petitioners, who
had appeared through counsels thrice. However, no enquiry was conducted
owing to the COVID-19 situation. All of a sudden, the second respondent had
passed the impugned order without giving an opportunity to the petitioners to
submit their response and arguments. In fact, the original order was also not
served on the petitioners, who had filed an application for dispensing with the
production of the original order. Thus aggrieved, the petitioners are before this
Court.
5.The learned counsel appearing on behalf of the petitioner would submit
that the orders have been passed by the second respondent without hearing the
petitioners and totally over looking the decree in favour of the petitioners. Even
by the judgment and decree in A.S.No.80 of 2018, the matter has been remitted
for fresh disposal, the judgment and decree of the trial Court clearly shows that
the possession of the property is with the petitioners and also the learned Judge
https://www.mhc.tn.gov.in/judis
W.P.(MD) No.15439 of 2021
has held the title to be with them, although there was no relief for declaration of
title. Therefore, he would submit that the impugned order is totally incorrect and
causing grave prejudice to the petitioners.
6.Per contra, Mr.K.P.Narayanakumar, learned counsel for the fifth
respondent would submit that the petitioners have themselves in their cross-
examination admitted the possession with the fifth respondent. That apart, the
petitioners have clearly admitted that they have not pleaded the purchase by their
father in the suit and in the cross-examination, P.W1, one of the petitioners, had
further admitted that the defendants have put up fence around the suit property,
which clearly shows that they are in possession of the property. Therefore, once
the possession is admitted, the impugned order cannot be questioned.
7.Heard the learned counsels appearing on either side.
8.Admittedly, both the parties have not claimed a relief of declaration in
respect of the properties, though each person is staking a claim to the same. In the
suit O.S.No.168 of 2014, the trial Court has held that the petitioners are in
https://www.mhc.tn.gov.in/judis
W.P.(MD) No.15439 of 2021
possession of the property and in the appeal, the matter has been remitted for
fresh consideration and it is informed that the parties have been asked to seek the
relief of declaration. When there is a serious dispute with reference to the title, it
is rather strange that the second respondent/the District Revenue Officer,
Sivagangai has proceeded to pass the impugned order, particularly without
hearing the petitioners herein. The impugned order therefore suffers from the vice
of arbitrariness and has to necessarily be set aside.
9.Accordingly, the Writ Petition is allowed and taking into account the
grievance of the petitioners that they have not been heard before passing the
orders, the matter is remitted back to the second respondent for fresh
consideration. The second respondent shall pass orders afresh on merits and in
accordance with law after affording opportunities to all the parties concerned. The
said exercise shall be completed within a period of 8 weeks from the date of
receipt of a copy of this order. However, there shall be no order as to costs.
Consequently, connected Miscellaneous Petitions are closed.
https://www.mhc.tn.gov.in/judis
W.P.(MD) No.15439 of 2021
10.Post the matter after two months for reporting compliance.
Speaking : Yes / No 05.06.2023
NCC : Yes / No
Internet : Yes / No
Index : Yes / No
mm
To
1.The District Collector,
O/o. District Collectorate,
Sivagangai District.
2.The District Revenue Officer,
District Revenue Office,
Sivagangai.
3.The Revenue Divisional Officer,
Revenue Divisional Office,
Sivagangai.
4.The Tahsildar,
Kalayarkovil Taluk,
Sivagangai District.
https://www.mhc.tn.gov.in/judis
W.P.(MD) No.15439 of 2021
P.T.ASHA, J.
mm
W.P.(MD) No.15439 of 2021
05.06.2023
https://www.mhc.tn.gov.in/judis
