Madras High Court
S.Ponnupillai vs The District Collector on 31 October, 2023
W.P.(MD)No.11191 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 31.10.2023
CORAM:
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
AND
THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN
W.P.(MD)No.11191 of 2014
and M.P.(MD) No.1 of 2014
S.Ponnupillai ... Petitioner
Vs.
1.The District Collector,
Nagercoil,
Kanyakumari District.
2.The Assistant Divisional Engineer,
National High Ways,
Nagercoil – 629 001,
Kanyakumari District. ...Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India, to issue a
Writ of Certiorarified Mandamus, calling for the records relating to impugned
order passed by the 2nd respondent dated 04.07.2014 in f.vz.25A/2014/,.t.m.
and quash the same and consequently forbear the respondents from interfering
with the petitioner's peaceful possession and enjoyment situated in Resurvey No.
303 ad-measuring 1.5 cents bearing old door no.34C2 and 34C3 corresponding to
new door Nos.4.74 and 4.75 respectively situated in Nallur Village, Vilavancode
Taluk, Kanyakumari District.
1/7
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.11191 of 2014
For Petitioner : Mr.N.Dilip Kumar
For Respondents : Mr.N.Satheeshkumar
Additional Government Pleader for R1
No appearance for R2
ORDER
(Order of the Court was made by V.LAKSHMINARAYANAN, J.)
The petitioner claims to be in occupation of a property situated in S.No.
303 of Nallur Village, Vilavancode Taluk, Kanyakumari District. The petitioner
admits that he is not the owner of the property and that it belongs to the
Government. However, he claims that he is in occupation of the property for over
several decades.
2. According to the petitioner, his father Selvamani Nadar encroached on
this land. After the death of his father, the petitioner and his brother Sasi Kumar
have continued the said occupation. On the strength of their possession, when the
National Highways attempted to evict them, they presented O.S.No.292 of 2000.
This is a suit for bare injunction restraining the first respondent – Assistant
Executive Engineer and the second respondent viz., State of Tamil Nadu not to
interfere with their possession. The said suit came to be decreed on 31.01.2011.
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W.P.(MD)No.11191 of 2014
On the strength of the decree, the Assistant Executive Engineer initiated
proceedings calling the petitioner to hand over possession on 04.07.2018. This
proceedings is challenged before us by the petitioner.
3. Mr.N.Dilipkumar, learned counsel for the writ petitioner would argue
that in the light of the decree in O.S.No.292 of 2000 on the file of District Munsif
Court, Kuzhithurai, dated 31.01.2011, the second respondent – Assistant
Executive Engineer has no jurisdiction to issue the notice as it is contrary to the
decree of the Civil Court. He would further submit that since the petitioner is in
possession of the property, which belongs to the Revenue Department and does
not vest with the National Highways, the second respondent is incompetent to
issue the notice. He would also allege that the impugned order is in violation of
principles of natural justice and there is mis-appreciation of the decree passed by
the Civil Court by the second respondent.
4. Before we go into the merits of the case, we have to necessarily point
out that we have to exercise the powers vested with us under Article 227 of the
Constitution of India to vary the decree in O.S.No.292 of 2000.
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W.P.(MD)No.11191 of 2014
5. The true owner of the property is entitled for an injunction against the
entire world. Here is a case, where it is contested by the second respondent that it
belongs to the National Highways. Therefore, the plaintiffs ought to have
impleaded the appropriate authority viz., Union of India, which is the owner of the
National Highways as per Section 4 of the National Highways Act, 1956, and
obtained a decree. Instead the suit has been presented against the Assistant
Executive Engineer, who by no stretch of imagination is the owner of the National
Highways. The statute declares that the property vests with the Union of India and
for the purpose of removal of encroachment over the National Highways, the Act
has empowered the Union of India to give appropriate directions to the State
Government under Section 6 of the National Highways Act. Therefore, the
argument that the decree in O.S.No.292 of 2000 will bind the National Highways
and the Union of India is a misplaced one.
6. Apart from that, as per the decree of the Civil Court permanent
injunction is granted against the State of Tamil Nadu as well as the Assistant
Executive Engineer, not to interfere with the possession of the plaintiffs. Such a
decree cannot be granted when the writ petitioner / plaintiffs admittedly not the
owners of the property. Therefore, we in exercise of the powers vested in us under
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W.P.(MD)No.11191 of 2014
Article 227 of the Constitution of India and in the light of the judgment which has
been pronounced by this Court in Varada Reddiar And Anr. vs Jayachandran
reported in 1996 (2) CTC 611, we modify the decree as to the extent that the
plaintiffs will not be evicted from the property except otherwise in accordance
with law.
7. With this modification of the civil Court decree we now move on to
the next submission.
8. Now, the decree is not standing in the way of the National Highways
Authority. Further, the judgment of the Full Bench of this Court Ramaraju v.
State of Tamil Nadu reported in 2005 (2) CTC 741 does not bind the National
Highways as it was not a defendant in the said suit. Therefore, the National
Highways Authorities under the National Highways Act or the Revenue
Department are permitted to issue notice to the petitioner under the provisions of
the applicable statutes. On such notice, the petitioner shall respond to the same. It
is made clear that the decree having been modified by us it will not be a bar for the
authorities to initiate action to remove all the encroachment under the relevant
statutes.
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W.P.(MD)No.11191 of 2014
9. Accordingly, the Writ Petition stands disposed of. No costs.
Consequently, connected Miscellaneous Petition is closed.
(S.M.S., J.) & (V.L.N., J.)
31.10.2023
NCC : Yes / No
Index : Yes / No
SJ
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.11191 of 2014
S.M.SUBRAMANIAM, J.
AND
V.LAKSHMINARAYANAN, J.
SJ
W.P.(MD)No.11191 of 2014
31.10.2023
https://www.mhc.tn.gov.in/judis
