M. Selvam vs The District Collector, Theni District and Others

R. Subbiah, J.—In view of the fact that the issue involved in both the writ petitions is one and the same, these writ petitions are taken up together and disposed of by a common order.

The prayer in the Writ Petition in W.P.(MD) No. 1280 of 2014 is for issuance of a Writ of Certiorari to call for the records pertaining to the impugned order passed by the third respondent in Na.Ka. No. 7429/2013/A1, dated 10.01.2014 confirming the order of fourth respondent in his proceedings in R.D.R. No. 1792, 2098/2010 dated nil. 02.2011 and quash the same.

The prayer in the Writ Petition in W.P.(MD) No. 9556 of 2014 is for issuance of a Writ of Certiorari to call for the records in pursuant to the impugned order passed by the fourth respondent in Na.Ka. No. 3170/2014/A8, dated 06.06.2014 and quash the same.

It is the case of the petitioner that originally the property comprised in S. No. 189, Allinagaram Village, Theni District belonged to one Mr. Rathinam. The petitioner''s principal Mr. Meganathan had purchased the property for valid consideration under the sale deed dated 26.03.1987 and the same was registered before the Sub Registrar Office, Theni in Document No. 877/1987. From the date of purchase the petitioner''s principal was in absolute enjoyment and possession of the property. Subsequently the petitioner''s principal had executed a power of attorney deed in favour of the petitioner on 03.02.2010 and from that day, the petitioner has been in continuous possession and enjoyment of the property. The petitioner is the authorized representative of Mr. Meganathan who executed a registered power deed in favour of the petitioner. The petitioner has been in possession and enjoyment of the property measuring to an extent of 5 cents situated in Survey No. 189 within four boundaries mentioned in the power deed dated 03.02.2010. The eastern boundary of the said land is north-south bye-pass road. The said 80 feet bye-pass road was formed in the year 1982 to its full length and breadth. The 80 feet bye pass road is laid for a distance of about 4 kms, connecting Theni-Periyakulam National Highways on the northern side and Theni to Madurai N.H. Road on the southern side. Since the land was not cultivable and suitable for any agricultural activities, all landowners even though lost their major portion of land because of the formation of 80 feet road did not object for the laying of road with the fond hope and intention to keep the remaining extent of land abutting the road for further development of land into house sites. Even though the land was taken for formation of 80 feet road, only around 40 feet road was formed and remaining is kept as road margin for further expansion in the near future. The land owners of lands abutting the road on either side have realigned their boundaries after leaving the 80 feet road. About 500 meters of this bye-pass road runs across Survey Nos. 189 and 190. Survey No. 189 is on the western side and Survey No. 190 is on the eastern side. On the south and north of this stretch of 500 metres, lands which were registered as forest land were taken for this road. Though the lands in Survey No. 189 and 190 were originally patta lands, the said lands were utilized for the formation of bye-pass road. Since the road was laid as early as in the year 1982, subsequently several documents were executed by the land owners showing the 80 feet road as the eastern or western boundary. After leaving a small portion in S. No. 189 which was acquired for laying road, the predecessors in interest of the petitioner were enjoying the land immediately on the western side of the road in S. No. 189. No portion of the land in S. No. 189 belonged to the seventh respondent. Due to steep rise in price of land in that locality, attention of the Real Estate businessmen was drawn and few of them started grabbing portions of lands abutting main road. Some of the real estate businessmen are trying to get patta in their name without notice to the original owner and also continuously trying to obtain patta in respect of land acquired and utilized for the 80 feet road. As per the order dated 17.02.2011 of the Assistant Divisional Engineer, Highways Department, steps were taken to remove encroachment by 07.03.2011, but one Elango namely the husband of the seventh respondent caused obstruction to remove encroachment and hence, removal of encroachment was not effected. Unfortunately on 07.03.0211 itself, the Tahsildar effected sub-division of a portion of S. No. 190 into new Town Survey No. 2/5Al and gave patta in favour of the seventh respondent. The same land was continuously utilized for 80 feet road. Now, several persons were affected. Some of them whose land was beyond 80 feet road were found to be encroachers of road, because of the attempt made by seventh respondent to realign the 80 feet road. The petitioner is totally deprived of his right of access to main road. After that, the seventh respondent and her husband unlawfully changed the highways survey stone to some other place in order to safeguard the extent of area mentioned in the patta issued in favour of the seventh respondent on 07.03.2011. Thereafter, the seventh respondent in active collusion with the number of officials, had also changed the Town and Country Planning Map and thereby deprived the petitioner''s right of access to the 80 feet road. The seventh respondent surprisingly caused unwanted hardship to the neighbouring land owners. Because of the grant of patta to the encroacher and consequential change of the alignment of the road, virtually the seventh respondent has interfered with the rights of private persons without notice to them. Hence, the petitioner had filed an appeal to the Revenue Divisional Officer disclosing all the particulars along with the relevant documents on 11.12.2013. The Revenue Divisional Officer, conducted enquiry on 10.01.2014 by issuing summons to the petitioner and passed the impugned order confirming the issuance of the Patta in favour of the seventh respondent. Before passing the order, the Revenue Divisional Officer ought to have heard the highways department and decided the right of the highways department in respect of the lands covered by the 80 feet road. The area covered under the Patta dated 07.03.2011 is part of the 80 feet Bye-pas road. Admittedly, the Tahsildar did not conduct any enquiry regarding the nature of the land. Further in the Revenue Department Communication dated 01.07.2010, the survey number covered under the Patta proceedings dated 07.03.2011 namely 5A is clearly described as road area. While so, by making sub division, patta was granted to the seventh respondent by the Tahsildar without conducting an enquiry. The said order was also confirmed by the Revenue Divisional Officer in an arbitrary manner without independently considering the right of the highways department and character of the land. Aggrieved over the same, the present Writ Petitions have been filed.

The fourth respondent Tahsildar has filed a counter affidavit inter alia stating that the present Writ Petition relates to Survey No. 189 which no longer exists in Town Survey records. The bye-pass road which was formed several years back runs through these survey field. The land in Survey No. 189 has been used for formation of the bye-pass road. The portion of the road claimed by the seventh respondent is a patta land and no road is in existence as alleged by the petitioner. The Tahsildar effected sub-division of a portion of S. No. 190 into new Town Survey No. 2/5Al and gave patta in favour of the seventh respondent. The Town Surveyor is competent to survey the land and there is no violation of any of the order or rule in this matter. Thus he sought for dismissal of the Writ Petition.

The seventh respondent had filed a counter inter alia stating that the landed property in Survey No. 190 of Allinagaram Revenue Village, measuring to an extent of 12 acres 84 cents belonged to several persons. Out of 12 acres 84 cents, 3 acres 21 cents on the southern side belonged to one Palaniyandi Thevar and his family members. The said Palaniyanid Thevar and his family members had sold 5 cents of land to one Kitchammal through a registered sale deed dated 11.10.1962 in Document No. 2490 of 1962. The said Kitchammal had executed a registered settlement deed dated 19.10.1973 vide Document No. 3270 of 1973 in favour of her daughter Unnamalai Ammal who in turn had executed a general power of attorney deed dated 01.03.2005 vide Document No. 161 of 2005 in favour of the seventh respondent''s husband viz., S. Elango. Subsequently, the seventh respondent''s husband had sold 714.94 sq. ft. of land to the petitioner for a valuable consideration through registered sale deed dated 23.03.2009 vide document No. 2270 of 2009. Similarly, the seventh respondent had purchased another landed property measuring to an extent of 462 1/2 sq. ft. for a valuable consideration through a registered sale deed dated 11.10.2010 from the son of the said O. Palaniyandi Thevar. By virtue of the above said two sale deeds dated 23.03.2009 and 11.10.2010, the landed property in Survey No. 190 to the total extent of 1177.44 sq. ft. situate at Allinagaram Revenue Village has been under the seventh respondent''s peaceful possession and enjoyment. While so, the seventh respondent applied for patta for the said land on 21.09.2010 and 08.11.2010. But, the Taluk Head Surveyor working under the fourth respondent had sent his recommendation to the fourth respondent on 20.12.2010 to grant patta in favour of the seventh respondent in respect of the remaining landed properties after deducting the area for the bye-pass road. Though the seventh respondent has been in possession and enjoyment of properties measuring to an extent of 1177.44 sq. ft., in Survey No. 190, after deducting a portion of 316.13 sq. ft. for the bye-pass road, the remaining portion measuring to an extent of 858.31 sq. ft. was recorded in the name of the seventh respondent in the land register on the file of the Town Surveyor, Theni. Therefore, it is incorrect to state that the seventh respondent had encroached the existing bye-pass road. Thus, she sought dismissal of the Writ Petition.

The learned counsel for the petitioner submitted that the petitioner is the owner of the land in Survey No. 190. In front of the petitioner''s land, the seventh respondent had encroached the land belonging to the Highways Department. While so, the Tahsildar by subdividing the land has granted patta in favour of the seventh respondent on 07.03.2011. When an appeal was filed by the petitioner, the Revenue Divisional Officer also has confirmed the order of the Tahsildar dated 07.03.2011. But no notice was given to the petitioner by the original authority. Similarly no notice was issued to the Highways Department. Therefore, there is a violation of principles of natural justice and hence, the orders impugned in both the writ petitions may be set aside and the matter may be remitted back to the original authority viz., the Tahsildar with a direction to give an opportunity of personal hearing to the petitioner and the Highways Depart and pass appropriate orders.

Mr. P. Wilson, learned Senior Counsel appearing for the seventh respondent submitted that by virtue of two sale deeds the seventh respondent had totally purchased the lands measuring to an extent of 1177.44 sq. ft. When she applied for patta, patta was granted only to an extent of 858.31 sq. ft. after retaining an extent of 316.13 sq. ft. for highways department for the bye-pass road. Therefore, it is incorrect to state that the patta was given in favour of the seventh respondent in respect of the land belonging to the highways department. Further, the petitioner had filed O.S. No. 161 of 2010 for easement right over the property but the same was dismissed. As against which the petitioner filed A.S. No. 7 of 2012 before the learned Subordinate Judge, Theni and the same is pending. That apart, the seventh respondent also filed O.S. No. 109 of 2011 in respect of the said property declaring the said property belongs to her. Therefore, the matter is purely civil in nature. Further, it is incorrect to state that without affording opportunity of personal hearing to the petitioner, the impugned order has been passed. In fact, appeal was filed by the petitioner as against the order passed by the Tahsildar before the Revenue Divisional Officer and in the said appeal an order has been passed after hearing the petitioner. In this regard, the learned Senior Counsel appearing for the seventh respondent invited the attention of this Court to the statement given by the seventh respondent before the Revenue Divisional Officer to the effect that a suit filed by the seventh respondent for declaration is pending. Therefore, when a civil suit is pending, seeking relief before the Revenue Divisional Officer is not maintainable in law. In this regard, learned Senior Counsel by relying upon a decision of this Court delivered in Vishwas Footwear Company Ltd. Vs. The District Collector and Others--> stated that the appropriate remedy for the petitioner for cancellation of patta is only to approach the Civil Court.

Heard the submissions made by the learned counsels appearing on either side and perused the entire materials available on record.

Keeping in mind the submissions made by the learned counsels appearing for all the parties, I have perused the entire materials available on record. The main submission of the learned counsel for the petitioner is that the seventh respondent by encroaching the land in front of the petitioner''s land which belongs to the Highways Department had obtained patta. The patta was issued to the seventh respondent without issuing notice to the petitioner as well as the Highways Department. The Highways Department has also filed a counter stating that the patta granted to the seventh respondent falls well within the boundary of the highways property as per the sketch of the Tahsildar dated 25.03.2013. But, on a perusal of records, I find that though the seventh respondent had purchased the land measuring to an extent of 1177.44 sq. ft., patta was granted only in respect of the portion measuring to an extent of 858.31 sq. ft. after retaining the portion of land measuring to an extent of 316.13 sq. ft. for bye-pass road. But it is the submission of the learned counsel for the petitioner that even for an extent of 858.31 sq. ft., the authorities ought not to have granted patta to the seventh respondent since the entire land belongs to the Highways Department. This submission of the learned counsel for the petitioner is a disputed question of facts which cannot be agitated in this present writ petition.

It is the yet another submission of the learned counsel for the petitioner that before issuing patta in respect of the subject land, no notice was issued to the petitioner. But, the materials available on record would show that only after hearing the petitioner, the order was passed by the Revenue Divisional Officer on 10.01.2014. Therefore, there is no violation of principles of natural justice in passing the impugned order as contended by the learned counsel for the petitioner.

Since all the submissions made by the learned counsel for the petitioner are disputed question of facts, the proper remedy for the petitioner is only to approach the Civil Court, since this Court is not conducting any roving enquiry or a trial in the present writ petitions. Therefore, this Court does not find any merit in the case of the petitioner and hence, the Writ Petitions are liable to be dismissed. Accordingly, both the Writ Petitions are dismissed. No costs. However, as per the dictum laid down in the abovesaid judgement of the Division Bench of this Court, the petitioner has to seek his remedy only before the Civil Court. Consequently, the connected miscellaneous petitions are closed.