Rajeev @ Veeranan, v. The District Collector,

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 13.03.2018

CORAM:

THE HONOURABLE Mr.JUSTICE T.S.SIVAGNANAM AND THE HONOURABLE Mrs.JUSTICE R.THARANI Writ Petition (MD).No.21065 of 2017 and W.M.P.(MD)No.17315 of 2017 Rajeev @ Veeranan ... Petitioner Vs.

1. The District Collector, Madurai.

2. The Revenue Divisional Officer, Usilampatti, Madurai District.

3. The Additional Divisional Engineer, (Construction and Maintenance) National Highways Office, Usilampatti, Madurai District.

4. Lakshmi Prathiba ... Respondents (4th respondent is impleaded as per the order of this Court, dated 13.03.2018, vide W.M.P.(MD).No.18793 of 2017 in W.P.(MD).No.21065 of 2017) Prayer : Writ Petition is filed under Article 226 of Constitution of India, praying for issuance of a Writ of Mandamus, forbearing the respondents for identifying the petitioner's shop as encroachment even without measuring the said shop with a surveyor and futher direct the respondents not to evict the petitioner without following due process of law.

For Petitioner : Mr.K.R.Laxman For Respondents 1 to 3 : Mr.V.R.Shanmuganathan Special Government Pleader For Fourth Respondent : Mr.G.Vanjinathan

ORDER

(Order of the Court was made by T.S.SIVAGNANAM, J) Heard Mr.K.R.Laxman, learned counsel appearing for the petitioner, Mr.V.R.Shanmuganathan, learned Special Government Pleader appearing for the respondents 1 to 3 and Mr.G.Vanjinathan, learned counsel appearing for the fourth respondent.

2.The petitioner is running a bunk shop in a road margin, abutting the National Highway. The petitioner's case is that the bunk shop is in existence for several years and documents are there to show house tax was remitted by the petitioner's mother namely, Tmt.Ankammal. It is not the first time that the petitioner and other family members approached this Court. The first writ petition was filed by the petitioner's mother in W.P.(MD)No.10594 of 2005. In the said writ petition, the petitioner's mother challenged the proceedings of National Highways Department as well as the proceedings of the District Collector dated 19.10.2005. The Court was made to believe that the petitioner is an encroacher and therefore, the Court directed the authority to follow the provisions of Land Encroachment Act and initiate action.

Nothing happened thereafter, and subsequently, in the year 2009, the petitioner's mother once again approached this Court in W.P.(MD) No.10033 of 2009, challenging the order passed by the National Highways Department dated 22.09.2009 wherein, the petitioner's mother was required to remove the tea stall from the road margin. The writ petition was disposed of by an order dated 08.10.2009, directing the petitioner's mother to lodge her objections to the notice dated 22.09.2009 within a time frame and on receipt of such objections, consider the same and pass orders in accordance with law within a period of ten days and till the dispose of the representation the occupancy of the petitioner's mother was directed not to be disturbed. The petitioner's mother passed away on 04.03.

2014 leaving behind the petitioner and his two sisters as legal heirs as can be seen from the Legal Heirs Certificate dated 02.04.2014. At the time when the petitioner's mother was alive, she filed W.P.(MD)No.2617 of 2014, challenging the proceedings of National Highways Department dated 06.02.2014 and forbear the respondents from evicting the petitioner therein without following due process of law. It is not clear as to whether the Court was appraised about the earlier litigation and orders passed thereon. Be that as it may, the Division Bench by an order dated 18.02.2014, observed that no opportunity was granted to the petitioner/mother and therefore, directed opportunity be given and then action should be initiated. Subsequently, the petitioner's mother is stated to have given a representation dated 11.11.

2017 to the second respondent. However, there is no proof to show that the said representation was received by the second respondent. Now the petitioner has come forward with the same plea which the petitioner's mother had been raising ever since 2005 that the property has to be surveyed and opportunity should be given to the petitioner to file his objections.

3.Under these factual circumstances, we wanted to dispose of the case but on the facts of the case prevents us from doing so. The fourth respondent, who is the neighbouring property owner, states that the petitioner has now constructed five shops and has also put up temporary structure infront of the properties owned by

the third party. However, no photographs or proof is produced to show that there are five shops. Be that as it may, the petitioner and other family members own patta land which is just behind the tea stall put by the petitioner's mother. Therefore, the petitioner could very well shift his shop inside his property. The property where the petitioner has put up the shop is on the Highway road margin and there is no vested right over the property for the petitioner. Earlier directions issued by the Court were not implemented for the reasons best known to the Highways Department.

4.The learned counsel appearing for the fourth respondent informs that the petitioner's sister is a Road Inspector in the National Highway. We do not wish to go into any such controversy in the writ petition. The petitioner is directed to relocate the tea stall and shift it into his private patta land within a period of ten days from the date of receipt of copy of this order, failing which, the respondents 1 to 3 are directed to remove the bunk shop departmentally and recover the cost of removing encroachment from the petitioner.

5.With the above direction, the writ petition is dismissed. No Costs. Consequently, W.M.P.(MD)No.17315 of 2017 is closed. Sd/- Assistant Registrar(CS-III) /True Copy/ Sub Assistant Registrar To

1. The District Collector, Madurai.

2. The Revenue Divisional Officer, Usilampatti, Madurai District.

3. The Additional Divisional Engineer, (Construction and Maintenance) National Highways Office, Usilampatti, Madurai District.

+1cc to Mr.K.R.Laxman, Advocate SR.No.55466 +1cc to Mr.G.Vanjinathan, Advocate SR.No.54995 +1cc to The Spl. Government Pleader Sr.No.55135 MRN VB/KK/SAR3/02.04.2018/3P/7C Writ Petition (MD).No.21065 of 2017 13.03.2018