Madras High Court
R.Sakthivel vs The Tahsildar on 26 September, 2023
WP(MD)No.21006 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 26.09.2023
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
WP(MD)No.21006 of 2023
and
WMP(MD)Nos.17420, 17421, 17422 of 2023
R.Sakthivel : Petitioner
Vs.
1.The Tahsildar,
Manmangalam Taluk,
Karur District.
2.The Head Surveyor,
Manmangalam Taluk,
Karur District.
3.M.Thangammal : Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
seeking issuance of a Writ of Certiorarified Mandamus calling for the records
relating to the impugned notice dated 18.08.2023 issued by the first respondent
and quash the same and consequently, restrain the first respondent from
conducting any survey on the date mentioned in the impugned notice or any other
date in future during the pendency of the dispute subjudiced before the civil Court.
1/12
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WP(MD)No.21006 of 2023
For Petitioner : Mr.H.Arumugam
For Respondents : Mrs.D.Farjana Ghoushia,
Special Government Pleader
for R.1, R.2
*****
ORDER
This writ petition is filed by the petitioner as against the notice issued by the
second respondent / Surveyor fixing the date of survey on the application made by
one Thangammal [R3] to survey the land in S.No.241/1 of Andankovil Village,
Manmangalam Taluk, Karur District. By the impugned notice, the Survey Officer
has intimated the petitioner's wife, namely Kasthuri; Thangammal [R3]; one
Marichamy S/o.Palaniyappa Goundar; and the Village Administrative Officer of
Andankovil that the survey would be conducted on 26.08.2023 @ 10.00 am.
2.Learned Counsel for the petitioner submitted that the land in S.No.241/1 is
a common pathway and it was not subdivided. According to him, the petitioner's
father has purchased the adjacent lands in S.Nos.241/2, 241/4, 241/5, 241/9 by
way of registered documents in the year 1971 and the petitioner has purchased an
extent of 39.5 cents out of 1.86 acres from one Subarayan. The third respondent
has also purchased some properties from the very same vendor, Subarayan. The
said Subarayan has sold 1.74 acres to the third respondent, when he possessed
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WP(MD)No.21006 of 2023
only 1.46½ acres, after selling 39.5 cents to the petitioner. Therefore, the
petitioner has filed a suit before the District Munsif Court, Karur, seeking the
relief of declaration and permanent injunction in respect of the common pathway
in O.S.No.471 of 2014. The suit filed by the petitioner was dismissed on
01.06.2023 and as against the same, the petitioner has preferred an appeal before
the District Court, Karur, in A.S.SR.No.13012 of 2023. Since the issue is
subjudiced before the civil Court, the notice issued by the Survey Officer is not
correct and the Survey Officer is not supposed to conduct the survey deciding the
title in favour of the third respondent.
3.Adding to this arguments, the learned Counsel further submitted that by
conducting the survey, the third respondent is attempting to fence the property
obstructing the common pathway, which is the only available pathway for the
petitioner to access his property and which is also the subject matter of the suit.
The very purpose and object of the survey is to find out the boundary. When there
is no dispute with regard to the boundary, there is no necessity for conducting any
survey. Moreover, since the issue is pending before the civil Court, the
respondents should not proceed with the survey without any explicit orders of the
Court.
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WP(MD)No.21006 of 2023
4.The learned Counsel has also referred to the decisions of this Court in
Asaithambi v. Revenue Divisional Officer and Others [2020 (2) CWC 891] and
G.Arumugam and Another v. District Collector, Cuddalore and Others [WP.No.
27006 of 2014, decided on 07.04.2022] and submitted that contrary views are
being taken by the Courts for surveying the properties pending the civil suits.
5.Learned Special Government Pleader submitted that they have received an
application for survey from the third respondent and based on the same, the
Survey Officer has issued notice for conducting survey.
6.Heard the learned Counsel appearing on either side and perused the
available materials.
7.This Court is not inclined to accept the petitioner's contention for more
than one reasons. The case of the petitioner is that since there is a dispute with
regard to the common pathway between the petitioner and the third respondent,
the first respondent ought not to have issued the impugned notice based on the
application of the third respondent to conduct the survey. It appears that the
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WP(MD)No.21006 of 2023
petitioner has lost the suit and has filed an appeal, which also is in SR stage.
Assuming that the suit is pending, the survey, if any, conducted will not confer any
title on the parties.
8.In Re Rukkaiah Natchiar v. P.M.S.Mohamed Aamina Beevi and Others
[2020 SCC OnLine Mad 22892], this Court analyzed the scope of Tamil Nadu
Survey and Boundaries Act and has held as follows:-
“41. To sum up, under Sec.13 of the Act, only the boundary of a
survey field as determined in a survey operation becomes conclusive,
and will be final in all cases where no suits are filed challenging its
correctness, but it does not include a dispute on title over the property.
Title to the property, and its extent, depend on multi-various facts, of
which the boundary of the survey field as determined by the survey
officer is one. A survey number, for all it matters, is one of the aspects
that enables the identification of an immovable property, like the
boundaries or peripheral measurements, or the extent. It may have a
bearing in resolving a title-dispute, but it does not enjoy any superior
evidentiary value than the rest, nor can it be treated as a conclusive
proof on the issue of title, nor can it be perceived or misconceived as
statutorily holy. Where a boundary fixed by a survey officer interferes
with the title or its extent, it has to be decided on a holistic reading of
the pleadings and the entire evidence in every case. Reference may be
made to the ratio of the Kerala High Court in Kannan v.Kannan, [1964
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WP(MD)No.21006 of 2023
KLT 228], where the Court held:
“In my judgement where the title to property has to be
determined not with reference to the survey demarcation, but on
other and perhaps more cogent materials, the demarcation can be
regarded as but one circumstance affecting the decision on title”.”
9.In Asaithambi's case (supra), referred by the petitioner, this Court has
issued certain guidelines to be followed in respect of survey of properties by the
authorities concerned and the same is extracted as under:-
“7. At this juncture, this Court thinks it fit to draw certain
guidelines to be followed, in respect of survey of the properties in future
by the authorities concerned, which are as under:
i) On receipt of charges towards Survey or Resurvey, it should be
conducted within a period of 30 days from the date of such receipt and
in case of failure on the part of the authorities to do so, the cost of
application shall be returned to the parties, apart from recovery of a
sum of Rs.2,500/- from the salary of the concerned Officials, responsible
for execution of the job and also initiation of departmental proceedings
against them and those errand officers must be identified and placed
under suspension and even dismissed from service for their misconduct,
dereliction of duty, showing no devotion to work, lack of integrity, so as
to deprive their entire gratuity and terminal benefits under the head
"moral turpitude", thereby failing to maintain absolute integrity in
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WP(MD)No.21006 of 2023
discharging his/her official duties. The details of such Officers stated
supra together with his / her Aadhar Number shall be incorporated and
adverse remarks shall be entered in the Service Register of the
concerned Officers, so as to deprive their further promotions in their
career. In case of failure to do survey, the concerned Official / Surveyor
shall be displaced to a non-sensitive post;
ii) A Register shall be maintained, in which details, such as name
of the person, who has gone for survey, area of survey, date of survey,
completion of survey, reason for not surveying the property, etc., should
be entered periodically and verified by the Superior Officer. The
complete details shall be available to the parties concerned or any
person, when required under the Right to Information Act and Section 8
of the said Act or any other provision shall not be quoted to deprive the
details to the person, who requires it;
iii) The Respondents 1 to 4 shall make use of Drone Technology in
order to conduct accurate survey of the property, which will throw light
with regard to encroachment on Government lands, like OSR, Public
Roads, Parks, Lakes, Odai, etc.
iv) Pendency of litigation before Courts is not a bar for the
authorities to conduct survey or resurvey in the absence of any stay /
interim order / interim injunction from proceeding further;
v) In cases relating to pending civil dispute, the parties are at
liberty to approach the appropriate forum for conducting Survey or
Resurvey of the property in question by making necessary application
and the same shall be considered by the appropriate forum in
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WP(MD)No.21006 of 2023
accordance with law;
vi) The entire process of survey or resurvey shall be
photographed and videographed by the authorities concerned even in
the absence of suitable orders to that effect and the copies of documents
shall be furnished to the parties concerned on receipt of necessary
charges;
vii) In the event of any public documents sought for by any of the
parties in connection with the property in question, under the Right to
Information Act, duly certified copies should be provided to such parties
and it should not be denied by merely quoting some provisions of the
RTI Act, more particularly, Section 8 of the said Act, unless there is any
interim order operating against the parties concerned in respect of
disbursement of the documents sought for by the parties. The name,
designation, employment number, if any Aadhar Card details, shall be
furnished in the certification;
viii) It is needless to mention that obviously, the entire charges for
survey or resurvey of the property shall be paid by the parties
concerned or it should be equally borne them, depending upon the facts
of each case. In case of delay on the side of the Authorities, the costs
should be borne by them from their personal funds;
ix) A constant vigil at the Officials of every Revenue Departments
is absolutely necessary to regulate the revenue related works and the
Vigilance Department shall be brought into action to curb the demand
of bribe by them, especially Surveyors;
x) In case of request for issuance of Patta after survey, apart from
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WP(MD)No.21006 of 2023
the aforesaid guidelines, the directions issued by this Court in W.P.(MD)
No.7746 of 2020 batch on 23.09.2020 shall have to be adhered to;
xi) The Government is directed to issue a circular in this regard,
incorporating the above guidelines within a period of one month from
the date of receipt of a copy of this order.”
10.In G.Arumugam's case (supra), referred by the petitioner, a survey notice
has been challenged and this Court has allowed the said writ petition in view of
the pendency of the civil suit. Apart from the factual discussion, no ratio has been
laid down in that decision.
11.The Hon'ble Supreme Court in Jayant Verma v. Union of India [(2018)
4 SCC 743] has held that it is not the findings of material facts, direct and
inferential, but the statements of the principles of law applicable to the legal
problems disclosed by the facts, which is the vital element in the decision and
operates as a precedent. By referring this decision, the Hon'ble Supreme Court,
very recently, in Career Institute Educational Society v. Om Shree Thakurji
Educational Society [2023 SCC OnLine SC 586], has observed that not
everything said by a Judge when giving judgment constitutes a precedent and that
the only thing in a Judge's decision binding as a legal precedent is the principle
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WP(MD)No.21006 of 2023
upon which the case is decided and it is important to analyze a decision and isolate
from it the obiter dicta. Therefore, the decisions in Asaithambi's case and
G.Arumugam's case (supra), referred by the petitioner, cannot be considered as
precedents, inasmuch as the issue and question of survey pending a civil dispute
has not been decided in either of the above decisions.
12.In Rukkaiah Natchiar's case (supra), this Court, after a detailed
discussion, has held that in a survey, only the boundary of the survey field
becomes conclusive and nothing else. The Survey Officer, under the Tamil Nadu
Survey and Boundaries Act, is mandated to fix the boundary, if any application is
made with necessary fee. In the event of any dispute with regard to the boundary,
the Survey Officer has to issue notice to the objectors, if any, the adjacent land
owners and conduct survey as contemplated u/s.10 of the Tamil Nadu Survey and
Boundaries Act and thereafter, to take a decision either to proceed with the survey
or not. The order passed by the Survey Officer u/s.10 of the Tamil Nadu Survey
and Boundaries Act is also appealable u/s.11 of the Tamil Nadu Survey and
Boundaries Act.
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WP(MD)No.21006 of 2023
For the reasons supra, this Court is not inclined to entertain this writ petition
and the same is accordingly, dismissed. No costs. Consequently, connected
miscellaneous petitions are closed.
Internet : Yes 26.09.2023
Index : Yes / No
NCC : Yes / No
gk
To
1.The Tahsildar,
Manmangalam Taluk,
Karur District.
2.The Head Surveyor,
Manmangalam Taluk,
Karur District.
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WP(MD)No.21006 of 2023
B.PUGALENDHI, J.
gk
WP(MD)No.21006 of 2023
26.09.2023
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