C.Sivakumar, v. Block Develoment Officer,

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:24.04.2019

CORAM:

THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM AND THE HONOURABLE MRS. JUSTICE R.THARANI Writ Petition(MD)No.10496 of 2018 and W.M.P.(MD).No.9600 of 2018 C.Sivakumar .. Petitioner Vs.

1.The Block Development Officer, Panchayat Union Thiruverumpur, Trichy District.

2.The Thasildhar, Thiruverumpur, Trichy District.

3.The Panchayat Secretary, Kundoor Panchayat, Trichy District.

4.The Zonal Block Development Officer-II Thiruverumpur, Trichy District.

5.N.Rajalakshmi ..Respondents (R-5 is impleaded vide court order dated 04.04.2019 in W.M.P.(MD).No.15526/2018) Prayer:

Petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Certiorarified Mandamus calling for the records of the 1st respondent impugned order dated 18.04.2018 quash the impugned order and consequently direct the respondent to follow the due process of law by giving notice and hearing before attempting to remove the alleged encroachment and forbearing the respondents in interfering with Plots No.10, 28 and 37 in survey Nos.229/1C and 35/7 which is pending before the Civil Forum for redressal.

For Petitioner : Mr.F.Deepak For Respondents : Mr.Ayiram K.Selvakumar Additional Govt.Pleader for RR-1 to 4 Mr.M.P.Senthil for R-5

ORDER

[Order of the Court was made by K.KALYANASUNDARAM, J] Heard Mr.F.Deepak, learned counsel for the petitioner, Mr.Ayiram K.Selvakumar, learned Additional Government Pleader, appearing for the respondents 1 to 4 and Mr.M.P.Senthil, learned counsel appearing for the fifth respondent and perused the materials available on record.

2.This writ petition has been filed to quash the order of the first respondent, dated 18.04.2018, in and by which the petitioner was directed to remove the encroachment made in Sy.No.299/1C and 35/7 of Kundoor Village, Thiruverumbur Panchayat Union. 3*.The learned counsel for the petitioner would submit that the pathway formed in Sy.Nos.299/1C and 35/7 is not a public pathway and it is used only by the petitioner and the fifth respondent. It is further stated that the impugned order has been passed without providing any opportunity to the petitioner and without conducting a survey by the revenue authorities. 4.

The learned Additional Government Pleader would submit that on receipt of the complaint, the first respondent has passed the order impugned in this writ petition, directing the petitioner to remove the encroachment and if the encroachment is not removed, the matter will be referred to the second respondent to take further action in accordance with law. It is further contended that even though a survey was conducted on 12.11.2017, the second respondent is ready to conduct a survey in the presence of the petitioner and the fifth respondent and if there is any encroachment, follow up action will be taken up in accordance with law. 5.It is to be noted that notice has been issued under Section 131(2) of the Tamil Nadu Panchayat Act.

As per the Section, if encroachment is not removed, pursuant to the order impugned, the matter will be referred to the second respondent to remove the encroachment by following the provisions of the Land Encroachment Act.

6.However, considering the grievance expressed by the petitioner and the submission of the learned Additional Government Pleader, the second respondent is directed to conduct a survey, after issuing notice to the petitioner and fifth respondent. During the survey, if it is found that the disputed pathway is a public pathway and there is any encroachment, the same shall be removed in accordance with law, after providing opportunity to all the necessary parties.

7.With the above direction, the writ petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed. We also give liberty to the petitioner to approach the Civil Court to establish his case, since it is stated the disputed pathway is a private pathway and not a public pathway. Sd/- Assistant Registrar (Writs) // True Copy // Sub Assistant Registrar(CS) vs To 1.The Block Development Officer, Panchayat Union Thiruverumpur, Trichy District.

2.The Thasildhar, Thiruverumpur, Trichy District.

3.The Panchayat Secretary, Kundoor Panchayat, Trichy District.

4.The Zonal Block Development Officer-II Thiruverumpur, Trichy District.

+1CC TO MR.M.SENTHIL, Advocate Sr. No.62383 +1CC TO MR.F.DEEPAK, Advocate Sr. No.62386 +1CC TO THE SPECIAL GOVERNMENT PLEADER SR.No. 62757 Writ Petition (MD)No.10496 of 2018 24.04.2019 NSN(CO) TR (03.06.2019) 3P 8C