Madras High CourtWP/2500/2023disposed of

R.Ganapathy @ Palanivel v. The Commissioner

2023-02-06Honourable The Acting Chief Justice,Honourable Mr Justice D.Bharatha Chakravarthy8 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 06.02.2023 CORAM :

THE HON'BLE MR.T.RAJA, ACTING CHIEF JUSTICE AND THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY R.Ganapathy@Palanivel ... Petitioner

Versus

1.The Commissioner, Land Administration Department, Ezhilagam, Chepauk, Chennai.

2.The District Collector, Salem District.

3.The District Revenue Officer, Salem District.

4.The Revenue Divisional Officer, Attur Taluk, Salem District.

5.The Tahsildar, Attur Taluk, Salem District.

... Respondents

Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Mandamus, directing the respondents, particularly 4th and 5th respondents to remove the fencing and also forbearing them by any coercive action to dispossess 148/1A measuring to an extent of 0.19 acres (19cents) Valamadevi Village, Attur Taluk, Salem District Village till the disposal of revision petition pending before the 1st respondent under Section 10A of the Tamil Nadu Land Encroachment Act,1905. For Petitioner ::

Mr.PR.Venkatesh Masethung For Respondents ::

Mr.P.Muthukumar, State Govt.Pleader

ORDER

D.BHARATHA CHAKRAVARTHY, J., This Writ Petition is filed for issuing a Writ of Mandamus to direct the respondents 4 and 5 to remove the fencing and also forbearing them from taking any coercive action to dispossess him from the land comprised in S.No.148/1A measuring an extent of 0.19 acres (19cents) at Valamadevi Village, Attur Taluk, Salem District Village, till the disposal of revision petition pending before the 1st respondent under Section 10A of the Tamil Nadu Land Encroachment Act,1905.

2. It is the case of the petitioner the land in question is classified as Tharisu and therefore, he has still developed it and is in cultivation and occupation of the above land by cultivating Punchai crops. He was assessed for payment of penal charges and has been duly paying the same. While so, an order under Section 6 of the Tamil Nadu Land Encroachment Act, was passed on 25.08.2021. Against the same, the petitioner preferred an appeal under Section 10 of the Act, and by order dated 31.12.2022, the fourth respondent/The RDO, Salem, dismissed the same. Against the said order a Revision was preferred to the file of the District Collector, namely, the second respondent herein. By order dated 23.02.

2022, the second respondent ordered that a revision will not lie before him, but, directed to prefer the revision before the first respondent/ The Commissioner of Land Administration. Therefore, the petitioner has preferred a revision before the first respondent on 27.03.2022 which is pending. Notwithstanding the pendency of the revision, the fifth respondent has proceeded to dispossess the petitioner and fenced the property, even while the crops are standing, and hence the Writ Petition.

3.Heard Mr.PR.Venkatesh Masetung, learned Counsel for the petitioner and Mr.P.Muthukumar, State Government Pleader, appearing for the respondents.

4.The learned Counsel for the petitioner would submit that the land in question is only Tharisu and when the petitioner has been assessed for occupying lands and the penal charges were levied under Section 3 of the Act and the charges are being paid, there is no question of any eviction of the petitioner. In any event, he would submit that even though the possession has been taken, still the revision pending before the first respondent has to be disposed of in accordance with law. He would submit that in respect of another adjacent extent occupied by a similarly placed individual, this Court by order dated 03.02.2023 in W.P.No.2729 of 2023, had directed the disposal of the revision petition by the first respondent. 5.Per contra, the learned State Government Pleader appearing for the respondents would submit that the possession has been taken and the

assessment of charges under Section 3 of the Act, is not a bar for eviction under the Act.

6.We have considered the rival submissions on either side and perused the material records of this case.

7.As rightly contended by the learned State Government Pleader for the respondents, mere assessment of penal charges under Section 3 of the Act, is not a bar for initiating eviction proceedings. Therefore, when the petitioner has been duly evicted in the manner known to law, the petitioner has only to agitate the same in accordance with the law and the prayer in the present Writ petition to forbear the respondent from dispossessing him, has already been become infructuous, since the possession has been taken, and the land has been fenced. However, the Revision Petition filed by the petitioner under Section 10A of the Act, is said to be pending and it is also represented that in identical Writ Petition, the revision is directed to be disposed of.

8.Considering the fact the land is considered to be Tharisu and the matter is pending before the first respondent/Commissioner of Land Administration, we dispose of this Writ Petition with a direction to the first respondent to dispose of the Revision Petition filed by the petitioner, dated 27.03.2022 within a period of four weeks from the date of receipt of a copy of this order. There will be no order as to costs. (T.R.,A.C.J.) (D.B.C, J.) 06.02.2023 Index : yes/no Speaking / Non-Speaking order klt To