S.Santhi v. The Asst Director
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.01.2017
CORAM:
THE HONOURABLE MR.JUSTICE P.N.PRAKASH W.P.NO.4118 OF 2003 S.Santhi ... Petitioner Vs.
1. The Assistant Director Land Survey Records Department Cuddalore.
2. The Revenue Divisional Officer Cuddalore.
3. The Tahsildar Thittakudi.
4. The Superintending Engineer Highways Department Thittakudi.
... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India by with a prayer to issue a Writ of Certiorarified Mandamus, to call for the entire records in Mu.Mu.E(3) 9649/2002 dated 30.10.2002 from the office of the 1st respondent, quash the same and to direct the respondents to correct the entries and plan regarding the disputed area to be separated from the street field No.40 and include the same with Door Nos.30, 30-A, 30-B, 30-C and 30-D of Thozhudur - Virudhachalam Main Road, Cuddalore District belonging to the petitioner.
For Petitioner :
Mr.D.Shivakumaran For Respondent :
Mr.V.Jayaprakash Narayanan Special Government Pleader
O R D E R
The facts of this case make interesting reading. One Sabtharishi Sastrigal was the original owner of the property in Door Nos.30, 30-A, 30-B, 30-C and 30-D, in Thittakudi Village, Thittakudi Taluk, since the British days. Prior to the advent of
the British, the area was ruled by local Maharajas. It was a practice of the Maharajas to undertake tours to meet their subjects. The Maharaja would stop in front of the house of a prominent person in the locality and hear grievances of his subjects. In order to facilitate that, shelters, called KORADU in Tamil, were built on thoroughfares for the Maharaja's retinue to stop for hearing grievances and for receiving respects. Such a Koradu, measuring about 7 1⁄2 feet x 52 feet was in existence in the thoroughfare abutting the house of Sabtharishi Sastrigal.
2. Sabtharishi Sastrigal made an application to the Survey Court, that was created by the British to decide cases relating to boundaries, claiming that the Koradu should be made as part and parcel of his property. It appears that an order was passed on 31.08.1922 by the Survey Officer in which the Koradu was separated from Street Field No.40 and was included with the house of Sabtharishi Sastrigal.
3. Subsequently, the Government had enacted the Tamil Nadu Survey and Boundaries Act, 1923 (Shortly "the Act") which came into force on 29.05.1923, under which, Survey Officers were appointed and they were required to undertake periodical survey of lands and prepare approved sketches and Field Map Books (FMB) in each Taluk.
4. After the death of Sabtharishi Sastrigal, the property was sold by his son Krishnanmoorthy on 05.01.1976 to one Selvam Son of Rangasamy Chettiar. In the year 1990, the Highways Department took possession of the Koradu for expanding the road.
5. Rangasamy Chettiar, the father of Selvam, filed writ petitions in W.P.Nos.2117, 2118 and 2119 of 1990 against the Tahsildar and the Highways Department for a mandamus to forbear them from demolishing the Koradu. The said writ petitions were dismissed by this Court on 11.09.1998 holding that disputed questions of fact cannot be gone into in a writ petition and leaving it to the parties to work out their remedies in the manner known to law.
6. Shanthi, wife of Selvam filed a suit in O.S.No.70/1999, before the District Munsif Court, Thittakudi, against the revenue authorities and Highways Department, for permanent injunction restraining the authorities from demolishing the Koradu. An exparte decree has been obtained by Shanthi on 17.08.2000, in O.S.No.70/1999. Thereafter, Tmt.Shanthi has filed the present writ petition for the aforesaid relief.
7. Heard Mr.D.Shivakumaran, learned counsel for the petitioner and Mr.V.Jayaprakash Narayanan, learned Special
Government Pleader for the respondents.
8. Today, Mr.G.Paul Thilagar, Deputy Surveyor, Thittakudi Taluk, Cuddalore District is also present in the Court with the necessary files.
9. Mr.D.Shivakumaran, learned counsel for the petitioner submitted that the authorities ought not to have excluded the Koradu from the property of the petitioner, inasmuch as the Koradu was treated as part of Sabtharishi Sastrigal's property by the order of the original Survey Court dated 31.08.1922. Therefore, he submitted that, without even hearing the petitioner, who had purchased the property from Sabtharishi Sastrigal's son, the authorities ought not to have included the Koradu as belonging to the Highways Department. He also submitted that in the teeth of the exparte decree in O.S.No.70/1999, the action of the respondents is illegal.
10. Mr.V.Jayaprakash Narayanan, learned Special Government Pleader strongly refuted the contentions and produced the necessary files.
11. On a perusal of the files, it is seen that the order of the original Survey Court dated 31.08.1922, was much prior to the coming into force of the Tamil Nadu Survey and Boundaries Act, 1923. However, even after the Act came into force, street survey was undertaken and the Koradu was shown as a protuberance to the property of Sabtharishi Sastrigal. Admittedly, the house of Sabtharishi Sastrigal was only on patta land and the Koradu was protruding into the street abutting his house. Sabtharishi Sastrigal did not have any proprietary title to the Koradu. Admittedly, the Koradu is on the street and it indubitably belongs only to the State and no individual can claim permanent ownership of it.
12. It is common knowledge that from 1982 to 1987, a massive survey operation was undertaken throughout the State by the Government under the Act and notices under Sections 6 and 7 of the Act were issued to various parties, who would be affected by the survey demarcation and after hearing them, final survey map was published in the District Gazettes, as required under Section 13 of the Act in the year 1987 itself.
13. Section 13 of the Tamil Nadu Survey and Boundaries Act, 1923, reads as follows:
"13. Completion of demarcation to be notified.- When the survey of any land or boundary which has been notified under Section 5 has been completed in accordance with the orders passed under Sections 9,10,11, 12-A or 12-B the
survey officer shall notify the fact in the District Gazette and a copy of such notification shall be pasted in the village chavadi, if any, of the village to which the survey relates; unless the survey so notified is modified by a decree of Civil Court under the provisions of Section 14, the record of the survey shall be conclusive proof that the boundaries determined and recorded therein have been correctly determined and recorded."
Section 14 of the Tamil Nadu Survey and Boundaries Act, 1923, reads as follows:
"14. Institution of a suit in Civil Court within three years to establish rights claimed in respect of the boundary of the property surveyed. - Any person deeming himself aggrieved by the determination of any boundary under section 9, 10, 11, 12-A or 12-B may, subject to the provisions of Parts II and III of the Indian Limitation Act, 1963 (Central Act 36 of 1963) institute a suit within three years from the date of the notification under section 13 to set aside or modify the said determination and the survey shall, if necessary, be altered in accordance with the final decree in the suit and the alteration if any, shall be noted in the record. The plaintiff in such suit shall join as parties to it all persons whom he has reason to believe to be interested in the boundary which is the subject of suit."
14. In the survey that was conducted between 1982 and 1987, the Koradu was treated as part of the road and it was handed over to the Highways Department for road expansion. This fact was published in the District Gazette way back in the year 1987. The remedy that was available to the petitioner was to file a suit within three years under Section 14 of the Act. This having not been done, the present writ petition, to alter the map and the Field Measurement Book (FMB) is not maintainable.
15. Admittedly, the Highways Department has taken possession of the Koradu and a major portion of the Koradu has also been demolished for the purpose of expanding the street. On account of the stay granted by this Court, a small portion of the Koradu still lingers. In the considered opinion of this Court, private interest must give way to public interest.
16. In the result, the writ petition is devoid of merits and accordingly, the same stands dismissed. No costs. s/d- Assistant Registrar(CCC) //True Copy// Sub-Assistant Registrar To
1. The Assistant Director Land Survey Records Department Cuddalore.
2. The Revenue Divisional Officer Cuddalore.
3. The Tahsildar Thittakudi.
4. The Superintending Engineer Highways Department Thittakudi.
+1 CC to Mr. D. Shivakumaran, Advocate sr 3515 W.P.NO.4118 OF 2003 SSK(CO) sp/9/2