Dismissed

E.Sekar v. the Secretary

Madras HC2 Jun 2014WP/8203/2014

Case brief

AI extract

What is this about?

Petitioner sought a Writ of Mandamus restraining the fourth respondent (SIPCOT) from interfering with his alleged possession of State land until pending appeals were decided. The Court held the petitioner failed to establish possession as the land was classified as Poromboke and handed over to SIPCOT in 2008. Accordingly, the writ petition was dismissed as no eviction process was applicable.

What did the court decide?

The writ petition is dismissed. Consequent miscellaneous petitions are closed.

E.Sekar Vs the Secretary — Writ and Judicial Review | Madras HC (2014)

¶1

IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶2

DATED : 02-06-2014

¶3

CORAM :

¶4

THE HONOURABLE MR. JUSTICE B. RAJENDRAN

¶5

Writ Petition No. 8203 of 2014
and
M.P. Nos. 1 and 2 of 2014
E. Sekar .. Petitioner
Versus
1. The Secretary
Department of Revenue
Government of Tamil Nadu
Secretariat, Fort St. George
Chennai
2. The District Collector
Collectorate
Kancheepuram District
3. The Revenue Divisional Officer
Kancheepuram
4. The Project Officer
SIPCOT, Siruseri
Old Mahabalipuram Road
Chennai – 600 103 .. Respondents

¶6

Petition filed under Article 226 of The Constitution of India praying for a Writ of Mandamus directing the fourth respondent not to interfere with the petitioner's possession of the lands in Survey No.40/8, situate at Egattor Village, Kelambakkam Taluk, Kancheepuram District until the petitioner's appeal pending before the third respondent and the petitioner's representation dated 27.01.2014 is decided.

¶7

For Petitioner : Mr. Su. Srinivasan For Respondent : Mr. K.V. Dhanapalan Additional Government Pleader for RR1 to 3 Ms. Sudarsana Sundar for R4

¶8

ORDER

¶9

The petitioner has come forward with this writ petition praying for a Writ of Mandamus directing the fourth respondent not to https://hcservices.ecourts.gov.in/hcservices/ interfere with his possession of the lands comprised in Survey No.40/8, Egattor Village, Kelambakkam Taluk, Kancheepuram District till the disposal of the appeal filed by him pending before the

¶10

third respondent and his representation dated 27.01.2014 is decided by the fourth respondent.

¶11

According to the petitioner, he is in possession and enjoyment of the land and building comprised in Survey No.40/8 as a joint family property after the demise of his mother Nagammal, which is classified as Gramanatham in the revenue records. According to the petitioner, since the respondents 1 to 3 attempted to interfere with his possession and enjoyment of such property, he made representations to the respondents apprehending unlawful eviction. As there was no response, the petitioner along with his brother filed WP No. 14629 of 2008 before this Court and that writ petition was disposed of on 19.06.2008 by recording the statement of the Government Advocate that the petitoiners will not be disturbed without resort to due process of law. In the meanwhie, the petitioner applied for issuance of patta in his favour in respect of the land comprised Survey No.40/8. Since the application has not been considered, the petitioner has filed WP No. 12010 of 2001 before this Court and it was disposed of on 29.06.2001 with a direction to consider the claim of the petitioner for transfer of patta. According to the petitioner, when his claim for grant of patta in respect of the aforesaid land in Survey No.40/8 and another piece of land in Survey No.40/1 were pending with the respondents 1 to 3, the Government issued G.O. Ms. No.10, Revenue (Nee.Mu) 5 (2) department dated 03.01.2002 by which the petitioner's land was transferred for establishing information technology (IT) park at Siruseri. It is contended by the petitioner that his claim for grant of patta was recommended by the then Tahsildar, Revenue Divisional Officer, as well as the District Collector vide proceedings dated 03.08.2002, 06.08.2002 and 05.01.2003 respectively and therefore by virtue of the Government Order, his claim for issuance of patta could not be considered by the revenue authorities. Thereafter, attempt was made to disturb the possession of the petitioner and therefore, he filed WP No. 29525 of 2008 before this Court and it was disposed on 13.04.2009 by issuing the following directions:-

¶12

“(i) The District Revenue Officer, Kancheepuram is directed to dispose of the appeal which is said to be panding on his file from November 2005 within a period of three months from the date of receipt of a copy of this order, if the same has not been so far disposed of.

¶13

(ii) If the petitioner has not been so far evicted from the property, and if the authorities of the view that he is only an encroacher, the authorities concerned can very well invoke the process of law and evict him. If any notice is issued for eviction, the petitioner is at liberty to establish his case that he is not an encroacher but he is the absolute owner of the property. Only after affording an opportunity for the petitioner and after considering his claim, the authority shall further proceed in this matter to evict him.

¶14

https://hcservices.ecourts.gov.in/hcservices/ (iii) It is further made clear that the respondents shall not dispossess the petitioner without following the due process of law.”

¶15

According to the petitioner, pursuant to such direciton issued by this Court in the order dated 13.04.2009, he was issued with a notice under Section 7 of the Land Encroachment Act in respect of the land in Survey No.40/1. On receipt of such notice, the petitioner, along with his sister, filed WP No. 29089 and 30788 of 2008 and obtained interim stay. The said writ petitions are pending before this Court for adjudication. It is the case of the petitioner that the respondents 1 to 3 did not attempt to interfere with the land comprised in S.F.No.40/8 and it is in possession of the petitioner. In those circumstances, the petitioner filed WP No. 8788 of 2009 praying for a Writ of Mandamus directing the Secretary to Government, Revenue Department to exclude the petitioner's land comprised in S.F. No. 40/8 from the operation of G.O. Ms. No.10, Revenue Department dated 03.01.2002. By order dated 17.02.2011, this Court directed the Secretary to Government to consider the representation dated 11.03.2009 of the petitioner and to pass orders in accordance with law. However, no order has been passed by the Secretary to Government. While so, the fourth respondent attempted to interfere with the property of the petitioner by putting up a road in the property of the petitioner. When such attempt of the fourth respondent was prevented, the fourth respondent gave a complaint against the petitioner to the police officials as though the petitioner prevented the public servants from discharging their statutory duty. With the above facts, the petitioner has filed this writ petition.

¶16

The learned counsel appearing for the petitioner would contend that the respondents failed to take note of the long and continued possession and enjoyment of the petitioner and his family over the property in question. It is further contended that when the then Tahsildar, Revenue Divisional Officer and District Collector have recognised the lawful possession of the petitioner and recommended for issuance of patta in his favour, the present attempt of the respondents 1 to 3 in transferring the land in question to the fourth respondent is unjust, arbitrary and uncalled for. The learned counsel for the petitioner would further contend that in the writ petition filed by the petitioner to exclude the land in question from G.O. Ms. No.10, Revenue Department, this Court passed an order on 17.02.2011 directing the first respondent to pass appropriate orders on the representation dated 17.03.2009 of the petitioner, but so far no order has been passed. Therefore, the petitioner filed contempt petition before this Court. For having filed contempt petition before this Court, in order to wreck vengeance, the lands of the petitioner has been transferred to the fourth respondent. The petitioner also filed an appeal before the third respondent as against the rejection of the application seeking patta, while so, during the pendency of the appeal, the attempt on the part of the fourth respondent in laying the road is unjustified and he prayed for issuance of a Mandamus.

¶17

https://hcservices.ecourts.gov.in/hcservices/ 5. When this writ petition was listed for hearing on 19.03.2014, this Court granted interim injunction restraining the respondents from laying any road in the property in question.

¶18

The fourth respondent has filed M.P. No. 2 of 2014 in WP No. 8203 of 2014 to vacate the interim injunction granted by this Court on 19.03.2014. Relying on the affidavit filed in support of the petition in MP No. 2 of 2014, the learned standing counsel appearing for the fourth respondent would contend that the Government of Tamil Nadu issued G.O. Ms. No.10, Revenue Department dated 03.01.2002 by which poromboke land measuring 209.04.0 hectares have been alienated which includes the land measuring 2.06.5 hectares in SF No.40/8, Egattur Village for the purpose of development of Information Technology Park. This land in SF No.40/8 is classified as 'Thoppu Poromboke' in the revenue records. The petitioner made a claim for issuing patta in his favour in respect of the land in SF No.40/8 and it was rejected by the Tahsildar, Chengalpettu by an order dated 12.04.2004. The order dated 12.04.2014 of the Tahsildar, Chengalpattu was also confirmed by the Revenue Divisional Officer, Chengalpattu vide letter dated 27.09.2005 stating that patta cannot be granted to the petitioner inasmuch as the land in question is classified as 'Thoppu Poromboke'. The learned counsel for the fourth respondent further contended that it is true that this Court passed an order on 13.04.2009 in WP No. 29525 of 2008 in which certain directions have been issued for disposal of the appeal filed by the petitioner and to issue notice for eviction in compliance of principles of natural justice. In the order dated 13.04.2009, it was stated that if the petitioner has not been so far evicted from the property in question, only then, the authorities can invoke the process of law and evicted him. As the land in Survey No.40/8 to an extent of 2.06.5 hectares has already been handed over to the fourth respondent even as early as on 04.11.2008, the question of the petitioner remaining in possession of the land does not arise and consequently, he need not be issued with any notice for eviction. In fact, the revenue officials have handed over the land in question to the fourth respondent on 04.11.2008 through land delivery receipt certifying that there is no encroachment in the said land and from 04.11.2008, it is the fourth respondent who is in possession of the land. The said land connects SIPCOT Information Technology Park to the Old Mahabalipuram Road (OMR) where there are about 75 information technology companies located . Further, under the Central Government grant, road work has been awarded to a contractor on 05.02.2014 to the value of Rs.9.20 crores and the work has been partly completed by the contractor to the value of Rs.3 crores. The petitioner is not in possession of the land in question, however, by virtue of an order passed by this Court on 19.03.2014, he is trying to encroach in to the property, with the result, the further work has been put on hold. Even in the order dated 17.02.2011 in WP No. 8788 of 2009 filed by the petitioner, this Court observed that the land in S.F. No.40/8 is classified as 'Thoppu Porombokku' and it was already handed over to the fourth respondent on 04.11.2008. The learned counsel for the fourth respondent would therefore contend that the petitioner is not in https://hcservices.ecourts.gov.in/hcservices/ possession of the land in question. The alleged possession is nothing but an attempt to abuse and misuse the process of this Court and to suit his convenience. Therefore, the learned counsel for the

¶19

fourth respondent prayed this Court for dismissal of the writ petition.

¶20

For the vacate stay petition filed by the fourth respondent, the petitioner has filed a rejoinder in which it was contended that patta was not issued to the petitioner because he has filed Contempt Petition No. 329 of 2004 before this Court complaining non-compliance of the order passed in WP No. 12010 of 2001. Even assuming that the lands in question has been transferred to the fourth respondent, the petitioner can at the best be treated as an encroacher and in such event, he is entitled for a notice in compliance with the principles of due process of law and he cannot be evicted from the lands summarily. In the rejoinder, the petitioner denied the issuance of land delivery receipt in favour of the fourth respondent. It is further contended that the first respondent has not passed any order as directed by this Court in the order dated 17.02.2011 in WP No. 8788 of 2009 and therefore, the present attempt on the part of the respondents to dispossess the petitioner is arbitrary and unjust. The alleged handing over of possession in favour of the fourth respondent is only a paper possession especially when the petitioner is in possession of the lands in question even as on date.

¶21

I heard the learned counsel for the petitioner, the learned Additional Government Pleader appearing for the respondents 1 to 3 and the learned standing counsel for the fourth respondent and perused the material records placed before this Court.

¶22

The short point for consideration in this writ petition is whether the petitioner is entitled for issuance of a Mandamus as prayed for in this writ petition.

¶23

The petitioner claims to be in possession of the lands comprised in Survey No.40/8 in Egattur Village, Chengalpattu Taluk, Kancheepuram District. Earlier, the petitioner filed WP No. 29525 of 2008 in which, this Court passed an order dated 13.04.2009 directing the respondents to directing the District Revenue Officer, Kancheepuram to dispose of the appeal filed by the petitioner within three months. In that order, it was further directed that if the petitioner has not been evicted so far and if the authorities are of the view that he is an encroacher, he can be evicted by following due process of law. When we analyse this portion of the order, it is evident that such a direction can be made applicable so long as the petitioner is not evicted from the property in question. Contra, the petitioner himself admitted that he filed an application seeking grant of patta in his favour in the year 2001 and since that application was not considered, he filed WP No. 12010 of 2001 in which an order dated 29.06.2001 was passed by this Court directing the respondents therein to consider the claim of the petitioner for grant of patta. Even before such an application of the petitioner could be considered, the Government isseud G.O. Ms. No.10, Revenue https://hcservices.ecourts.gov.in/hcservices/ Department dated 03.01.2002 by which the lands in question has been transferred to the fourth respondent for establishing information technology park at Siruseri. The petitioner has not so far

¶24

challenged G.O. Ms. No.10, Revenue Department dated 03.01.2002. The fact remains that as on date, the lands in question, which is claimed by the petitioner, is classified as 'Thoppu Porombokku' in which the petitioner cannot make any claim. Admittedly, patta has not been issued in favour of the petitioner and in fact, the claim for patta has been rejected by the Tahsildar, Chengalpattu on 12.04.2004. This order of the Tahsildar, Chengalpattu was reiterated and confirmed by the Revenue Divisional Officer, Chengalpattu in his letter dated 27.09.2005 by stating that patta could not be issued to the petitioner in respect of the land in Survey No.40/8 inasmuch as it is classified as 'Thoppu Porombokku' in the revenue records. Thereafter, the petitioner has filed WP No. 29525 of 2008 before this Court in which this Court passed an order dated 13.04.2009 directing the appellate authority to consider the appeal filed by the petitioner. Thus, till such time viz., after the order of rejection passed by the Tahsildar, Chengalpet till taking possession by the fourth respondent, the petitoiner has not questioned the order passed by the Government in G.O. Ms. No.10, Revenue Department dated 03.01.2002. Only for the first time, in the year 2009, the petitioner filed WP No. 8788 of 2009 praying for a Mandamus directing the respondents to exclude the land in S.F. No.40/8 from the operation of G.O. Ms. No.10, Revenue Department dated 03.01.2002. This Court disposed of the writ petition No.8788 of 2009 on 17.02.2011 directing the Government to consider the representation dated 11.03.2009 of the petitioner on merits. Thus, as on date, the order in G.O. Ms. No.10, Revenue Department dated 03.01.2002 is in force and it was not questioned by the petitioner in a manner known to law. As mentioned above, the direction issued by this Court in WP No. 29525 of 2008 dated 13.04.2009 can be made applicable only if the petitioner has not been evicted. The question of eviction of the petitioner does not arise inasmuch as the land in question was already handed over to the fourth respondent even as early as on 04.11.2008.

¶25

It is claimed by the fourth respondent that on the basis of G.O. Ms. No.10, Revenue Department dated 03.01.2002, the lands in question, as also other lands, have been handed over to them by way of land delivery receipt even as early as on 04.11.2008. The fourth respondent also produced the land delivery receipt in the typed set of papers before this Court. In fact, in para No.5 of the affidavit filed in support of M.P. No. 2 of 2014, it is categorically stated by the fourth respondent as follows:-

¶26

“5. It is respectfully submitted that the facct of handing over possession of the land in S.No.40/8 to SIPCOT and that the SIPCOT is in possession and enjoyment of the same is mentioned in the counter filed in the W.P. No. 8788 of 2009. The Hon'ble Court, in the order passed on 17.02.2011 in the above writ petition passed the following orders.

¶27

“According to the learned Special Government Pleader, patta has not been granted in favour of the https://hcservices.ecourts.gov.in/hcservices/ petitioner in respect of S.No.40/8, which is a Government Poromboke land. Therefore, the Government is well within its power to transfer the land to SIPCOT and

¶28

that the lands have already been transferred and handed over to SIPCOT and they have also been put into use. This submission is disputed by the learned counsel for the petitioner by contending that the lands though were handed over to SIPCOT have not been put into use and lying vacant and the petitioner is in possession”.

¶29

Even though the petitioner disputed the usage of the land in question after possession of it was handed over in favour of the fourth respondent, the petitioner has not produced any records to show that he is in possession of the land in Survey No.40/8, as claimed by him. Therefore, the present argument of the petitioner that atleast he should be treated as an encroacher and consequently he should be issued with a notice under the Land Encroachment Act does not arise inasmuch as possession has already handed over to the fourth respondent on 04.11.2008 itself and it was also admitted in the pleadings made in the earlier writ petitions. Now, the petitioner only denies that the possession of the land was handed over to the fourth respondent or the fourth respondent is using the land in question as on date. Contra, it is claimed by the fourth respondent that taking advantage of the interim order granted by this Court in this writ petition, the petitioner is attempting to take possession in his favour and he is not in possession of the lands. In any event, as the petitioner is unable to establish his possession by producing any documentary evidence and merely because an observation was made by this Court in the earlier writ petition, that by itself will not entitle the petitioner to seek for a Mandamus to restrain the respondents from interfering with his alleged possession. As mentioned above, when the petitioner is not in possession of the lands in question, the question of evicting him only after following due process of law by the respondents does not arise.

¶30

In the result, the writ petition is dismissed. No costs. Consequently, connected miscellaneous petitions are closed.

¶31

Sd/Asst. Registrar[cs.ii] Dt/-06/06/2014 /true copy/

¶32

Sub Asst. Registrar.

¶33

rsh

¶34

https://hcservices.ecourts.gov.in/hcservices/

¶35

To
1. The Secretary
Department of Revenue
Government of Tamil Nadu
Secretariat, Fort St. George
Chennai
2. The District Collector
Collectorate
Kancheepuram District
3. The Revenue Divisional Officer
Kancheepuram
4. The Project Officer
SIPCOT, Siruseri
Old Mahabalipuram Road
Chennai – 600 103
1 CC To Mr.Su.srinivasan, Advocate SR NO.22117
2 CCs To Mr.Sudharsana Sundar, Advocate SR NO.22122
1 CC to the Government Pleader SR NO 22263
WP No. 8203 of 2014
sk[co]
gp/6.6

¶36

https://hcservices.ecourts.gov.in/hcservices/

E.Sekar v. the Secretary

Case brief

What is this about?

What did the court decide?

E.Sekar v. the Secretary

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Nokia India Pvt. Ltd, Vs Deputy Commissioner (Ct)

Vijay Television Private Ltd., Vs the Dispute Resolution Panel

Thuluva Vellalar Sangam, Vs R.Manthrasalam

Chennai Port Stevedores Assn, Vs Ministry of Shipping

J.Jayakrishnan Vs the State of Tamilnadu

K.Shanmugasundaram, Vs the District Civil Supply