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Sakthivel v. District Collector (Madras)(Madurai Bench)(DB) : Law Finder Doc Id # 1152418

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MADRAS HIGH COURT
(Madurai Bench)(DB)
Before:- R. Mahadevan and M. Jaichandren, JJ.
W.P. (MD) No. 11490 of 2005. D/d. 12.09.2014.
Sakthivel - Petitioner
Versus
The District Collector, Virudhunagar District, Virudhunagar and Ors. - Respondents
For the Petitioner :- Mr.N.Dilip Kumar, Advocate.
For the Respondent Nos. 1, 2 & 5 :- Mr.A.K.Baskarapandian, Special Govt. Pleader.
For the Respondent No. 3 :- Mr.Pala.Ramasamy, Advocate.
For the Respondent No. 4 :- Mr.K.Mahadevan, Advocate.
Constitution of India, 1950 - Article 226
Cases Referred :
C.S.S.Motor Service v. State of Madras, AIR 1953 Madras 279 (E).
Hari Ram v. Jyoti Prasad, (2011) 2 Supreme Court Cases 682.
The Executive Officer, Kadathur Town Panchayat v. V. Swaminathan, 2004 (3) CTC 270.
ORDER
R. Mahadevan, J. - This writ petition has been filed praying that this Court may be pleased to
issue a writ of Certiorarified Mandamus to call for the records of the impugned proceedings of the
first respondent dated 29.11.2000 in Na. Ka. I 4/40632/2000 and quash the same as illegal and
consequentially direct the respondents 1 to 3 to remove the encroachments made by the fourth
respondent in S. No. 123/13 (Union Street), Sattur Town, Virudhunagar District (now T.S. No. 77,
Ward 'D', Block 13).
2. Brief facts necessary for the disposal of the writ petition are set out thus:
2.1. The case of the petitioner is that the property in S. No. 121/13, Sattur Sub Division, (now, T.S. No.
77, Ward 'D', Block 13, Sattur Town), is a public street, by name, Union Street, which runs from
Sivan Kovil West Car Street to Perumal Kovil West Car Street. It also connects Sivan Kovil West Car
Street with the Market Street and the same has been in existence for the past 100 years. Chitta No.
509 stood in the name of Union Street and the same has been exhibited in the 10(1) Extract and the
other revenue records. According to him, the fourth respondent encroached upon the said Street,
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Submitted By: Venkatraman J
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which resulted in filing of the suit by two of the residents of that locality in O.S. No. 292 of 1991, on
the file of the District Munsif, Sattur, seeking mandatory injunction. After trial, the said suit was
decreed on 26.02.1993, as against which, the fourth respondent filed the appeal in A.S. No. 286 of
1993 on the file of the Subordinate Judge, Srivilliputtur and the same was dismissed by judgment
dated 28.10.1994. Since no appeal had been filed against the said judgment, it became final. It is the
grievance of the petitioner that despite the judgment of the civil Court, the fourth respondent had
continued to encroach upon the said street. The petitioner made representations to remove the said
encroachment made by the fourth respondent, however, it did not evoke any positive effect. While
so, the third respondent, by his communication dated 20.09.2005, intimated the petitioner that the
said street had already been assigned in favour of the fourth respondent by the proceedings of the
first respondent dated 29.11.2000. Aggrieved over the same, the petitioner is before this Court.
2.2. The second respondent filed the counter affidavit denying the allegations of the petitioner and
stated that the property in S. No. 121/13, Sattur Sub Division, was originally classified as Union
Street and the same had been under occupation of the fourth respondent and the first respondent
by proceedings dated 29.11.2000, changed the classification of the property from Union Street into
Natham Poramboke and thereafter, issued house patta to the fourth respondent as per G.O. Ms. No.
168 (Revenue Department), dated 27.03.2000. Further, it is stated that the said property had been
assigned to the fourth respondent and hence, the claim of the petitioner is untenable and
accordingly, prayed for the dismissal of the writ petition.
2.3. Refuting the plea of the petitioner, the fourth respondent filed the counter affidavit inter alia
contending that his father constructed a house in the said property and thereafter, the fourth
respondent applied for the assignment of the property on 20.02.1987 and the Municipality passed a
resolution recommending to the Tahsildar for grant of patta to the fourth respondent and
subsequently, the said property had been assigned to him as per law and the petitioner cannot
have any grievance at all against the fourth respondent and the writ petition is a misconceived one
and therefore, he prayed for the dismissal of the writ petition.
3. Mr. N. Dilip Kumar, learned Counsel appearing for the petitioner contended that the street in S.
No. 121/13, is a public street called Union Street and the fourth respondent had illegally encroached
upon the same and despite a decree from the civil Court, the fourth respondent had not removed
the encroachments made by him and therefore, he sought for appropriate relief.
4. In support of his submission, he relied on the following decisions:
(i) The Executive Officer, Kadathur Town Panchayat v. V. Swaminathan reported in
2004 (3) CTC 270 .
(ii) Hari Ram v. Jyoti Prasad and another reported in (2011) 2 Supreme Court Cases
682 .
(iii) C.S.S.Motor Service v. State of Madras reported in AIR 1953 Madras 279 (E) ,
wherein, it is held as follows:
"The true position, then is, that all public streets and roads vest in the State, but that the State
holds them as trustees on behalf of the public. The members of public are entitled as
beneficiaries to use them as a matter of right and this right is limited only by the similar rights
possessed by every other citizen to use the pathways."
5. Per contra, Mr. A.K. Baskarapandian, learned Special Government Pleader appearing for the
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Submitted By: Venkatraman J
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respondents 1, 2 and 5 submitted that the claim of the petitioner is misconceived as the said
property had already been assigned in favour of the fourth respondent and the revenue records
would also reveal the same. He, therefore, argued that no relief can be granted to the petitioner.
6. Mr. K. Mahadevan, learned Counsel appearing for the fourth respondent also contended that the
property in S. No. 121 consisted of two sub-divisions, viz., Grama Natham and the Street and the
Natham portion is sub-divided as S. No. 121/13 and his father occupied that portion and paid ground
rent to Sattur Panchayat (now, Sattur Municipality) since 1958. According to him, the other portion
of the property has been in use as a street and considering the claim of the fourth respondent, the
Government had assigned the said property in his favour and therefore, the petitioner had not
made out a case for invoking the jurisdiction of this Court under Article 226 of the Constitution of
India, he argued. Accordingly, he prayed for the dismissal of the writ petition.
7. We have given our anxious consideration to the submissions made on either side and scrutinised
the materials available on record.
8. It is seen that though the petitioner had mentioned the survey number of the said property as S.
No. 121/13 in the affidavit filed by him, it is stated as S. No. 123/13 in the prayer, which according to
the second respondent, is not correct and the actual survey number is S. No. 121/13. However, the
property in S. No. 121/13, Sattur Sub Division, was originally classified as Union Street and the same
was under the occupation of the fourth respondent, who sought to assign the same in his favour.
9. A perusal of the proceedings of the first respondent, dated 29.11.2000, would reveal that after
inspecting the property concerned, it was decided to change the classification as Natham
Poramboke and accordingly, the fourth respondent was assigned the said property.
10. It is also the definite stand of the second respondent that as per the revenue records, the
property in question is not a Government Poramboke land and it had already been assigned in
favour of the fourth respondent.
11. Once a property, after change of classification from Union Street into Natham Poramboke, was
assigned by the Government in favour of a person, who had been in occupation of the said
property, it could not be stated that he had encroached upon the same illegally. The legal
requirements for such assignment had been properly complied with by the Government and
thereafter, the fourth respondent was assigned the said property.
12. We find that the petitioner had not made out a case warranting interference with the
impugned orders and ultimately, we feel, the writ petition is liable to be rejected.
13. In fine, the writ petition fails and the same stands dismissed. No costs.
.