P.Abdul Raguman v. The District Collector
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 07.06.2024
CORAM:
THE HONOURABLE MR.JUSTICE R.SURESH KUMAR and THE HONOURABLE MR.JUSTICE G.ARUL MURUGAN and W.M.P(MD)Nos.10688 & 10689 of 2024 P.Abdul Raguman ... Petitioner vs.
1.The District Collector, Collectorate Campus, Thoothukudi, Thoothukudi District.
2.The Revenue Divisional Officer, Kovilpatti, Thoothukudi District.
3.The Tahsildar, Kayathar, Thoothukudi District.
... Respondents PRAYER : Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorari, to call for the records relating to the impugned eviction notice issued by the third respondent in his proceedings in Na.Ka.No.A2/7138/2022, dated 29.05.2024 and quash the same as illegal.
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For Petitioner : Mr.C.Venkatesh Kumar For Respondents : Mr.S.Shaji Bino Special Government Pleader
ORDER
(Order of the Court was made by R.SURESH KUMAR, J.) The prayer sought for in this Writ Petition is for a Writ of Certiorari, to quash the impugned eviction notice issued by the third respondent in his proceedings in Na.Ka.No.A2/7138/2022, dated 29.05.2024.
2.In respect of the property at Survey Nos.121/1A, 119, 94/1, 94/2, 86 and 87 at Ayyanaruthu Village, Kayathar Taluk, Thoothukudi District, there has been a dispute between the present petitioner and others. The dispute was that there had been a cart track flowing on these survey numbers which was the main ingress and egress of various agriculturists, who had lands in the nearby areas. In this context, it is the further case of those people that the present petitioner and his family members have put up a fence recently ie., 2-1/2 years back and agricultural activities had been undertaken even blocking the cart track, thereby the main ingress and egress of others are affected. 2/12
3.Therefore, treating it as an encroachment and to remove the same, one M.Guruputhiran filed a Writ Petition before this Court in W.P(MD)No.13092 of 2023, which was disposed of by a Division Bench of this Court by its order, dated 13.12.2023, where direction had been given to initiate all appropriate actions in the manner known to law to remove the encroachment.
4.Pursuant to the said order passed by the Division Bench of this Court dated 13.12.2023, the provision of Act, 3 of 1905 was invoked by the third respondent/the Tahsildar, who ultimately passed orders under Section 6 of the said Act on 21.02.2024, where he found that there has been an encroachment in Survey Nos.94/1 and 94/2 and directed the petitioner to remove such encroachment within a time frame. 5.Since the petitioner has not removed such encroachment, the Tahsildar has come forward to issue the present order ie., by way of execution on 29.05.2024 directed the petitioner to remove such encroachment on or before 06.06.2024, failing which on 07.06.2024, removal of encroachment would be undertaken and the encroachment would be removed.
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6.On receipt of the said communication dated 29.05.2024, the petitioner has filed an appeal before the District Collector ie., the first respondent on 05.06.2024 ie., the day before yesterday. 7.As the deadline has been fixed only up to 06.06.2024 and the removal of encroachment would be undertaken by the revenue authorities on 07.06.2024, ie., today, the petitioner urgently moved the present Writ Petition with the aforestated prayer.
8.Mr.C.Venkatesh Kumar, learned counsel appearing for the petitioner has submitted that Survey Nos.94/1 and 94/2 are the patta lands where he has been undertaking agricultural activities and there are grownup coconut trees nurtured by him are standing. When that being so, it cannot be treated as a cart track and no such cart track is available at any point of time and not had been used by anyone including the said individual, who filed the said Writ Petition, which triggered these actions which emanated from the revenue authorities and therefore, the present order, dated 29.05.2024 is beyond the jurisdiction of the revenue authorities to invoke the provisions of Act 3 of 1905. Hence, he seeks indulgence of this Court.
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9.However, Mr.S.Shaji Bino, learned Special Government Pleader appearing for the respondents has submitted by relying upon the written instructions given by the third respondent/the Tahsildar, dated 07.06.2024, where the Tahsildar has stated the following: 5/12
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10.Relying upon this communication of the Tahsildar, the learned Special Government Pleader would submit that continuously in six survey numbers at least, the encroachment had been found by the revenue authorities and all through these six survey numbers there has been a cart track running. Therefore, action had been taken by the revenue authorities by invoking the provisions of Act, 3 of 1905 and notice had been issued followed by Section 6 order and all those orders have become final as that has not been questioned by the petitioner and despite Section 6 order, since the petitioner has not come forward to remove the encroachment, the Tahsildar had issued the present impugned order, dated 29.05.
2024 and even the last chance given to him to remove the encroachment till yesterday since has not been complied with, the revenue authorities may be permitted to proceed further to execute the order to remove such encroachments. Hence, the present attempt made by the petitioner is without any basis and the Section 6 order since has not been questioned and has become final, the present appeal said to have been made to the first respondent/the District Collector against the order, dated 29.05.
further pursuant to the impugned order. Therefore, the learned Government Pleader seeks indulgence of this Court to dismiss the Writ Petition. 11.Mr.Aayiram K.Selvakumar, learned counsel made submissions before this Court representing the said M.Guruputhiran, as he is not a party here, only at whose instance in the earlier Writ Petition, the Division Bench passed the said order, pursuant to which only, all these actions have been taken by the revenue authorities by invoking the provisions of Act, 3 of 1905.
12.We have considered the said rival submissions made by the learned counsel appearing for both sides and we have perused the materials placed before this Court.
13.Admittedly, the Section 6 order was passed on 21.02.2024 by the third respondent/the Tahsildar, which has not been questioned by the petitioner, therefore, it has become final. Under Section 10 of the Tamil Nadu Land Encroachment Act, 1905, an appeal would lie before the District Collector under Section 10 of the Act, only against the order passed by the revenue Tahsildar under Section 6 of the Act. Here, the said Section 6 order 8/12
has not been questioned in the appeal, which seems to have been filed on 05.06.2024 by the petitioner.
14.Be that as it may, now an appeal has been filed under Section 10A(a) of the said Act on 05.06.2024 and the said appeal since has been filed only two days back, it cannot be expected that the Collector would have bestowed his consideration on that appeal to dispose of the same.
15.However, the petitioner in order to thwart the attempt made by the revenue authorities to execute their order passed under Section 6, of course, in pursuance of the direction given by this Court, this dual method has been adopted by filing an appeal before the District Collector and now the very same order, dated 29.05.2024, has been questioned in this Writ Petition. The petitioner cannot ride on two horses at a time. If at all he has chosen to file an appeal against the order, dated 29.05.2024, before the District Collector and he has filed such an appeal on 05.06.2024, he must pursue only the said appeal and he should not have filed this Writ Petition. 9/12
16.Since the appeal has already been filed, even though not against the order dated 21.02.2024 passed under Section 6 of the Act, but only against the consequential order, dated 29.05.2024, we deem it appropriate to give a direction to the District Collector to dispose of the said appeal at the earliest preferably within a period of two weeks. 17.While deciding the said appeal, the first respondent/the District Collector must take into account the report submitted by the Tahsildar with regard to the existence of the cart track and the encroachment that is found in various survey numbers in the said cart track. Accordingly, a decision on merits shall be taken by the District Collector on the appeal, dated 05.06.
2024 made by the petitioner and such decision shall be made and orders to be passed by the first respondent/the District Collector within a period of two weeks from the date of receipt of a copy of this order. Till such order is passed by the first respondent/the District Collector, the present impugned order, dated 29.05.2024 passed by the third respondent, shall be kept in abeyance. Once the order is passed by the District Collector, accordingly, the third respondent/the Tahsildar can act upon.
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18.With these observations and directions, this Writ Petition is disposed of. However, there shall be no order as to costs. Consequently, connected Miscellaneous Petitions are closed.
[R.S.K.,J.] [G.A.M.,J.] 07.06.2024 NCC : Yes / No Index : Yes / No ps To 1.The District Collector, Collectorate Campus, Thoothukudi, Thoothukudi District.
2.The Revenue Divisional Officer, Kovilpatti, Thoothukudi District.
3.The Tahsildar, Kayathar, Thoothukudi District.
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R.SURESH KUMAR ,J.
and G.ARUL MURUGAN,J.
ps ORDER MADE IN DATED : 07.06.2024 12/12