Petitioner sought quashing of a survey department order and removal of an encroachment on a common pathway by the twelfth respondent. Holding that disputed questions of fact require oral and documentary evidence, the Division Bench declined to entertain the writ petition and dismissed it with liberty to approach the Civil Court.
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W.P.(MD) No.1552 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 29.01.2024
CORAM:
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
and
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
W.P.(MD)No.1552 of 2024 and W.M.P.(MD)Nos.1557 & 1559 of 2024
M.Suresh
... Petitioner
Vs.
1.The Principal Secretary to the Government, Department of Registration, Government of Tamilnadu, State Secretariat, Fort. St. George, Chennai - 9.
2.The Principal Secretary, Department of Revenue, Government of Tamil Nadu, State Secretariat, Fort. St. George, Chennai - 9.
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W.P.(MD) No.1552 of 2024
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W.P.(MD) No.1552 of 2024
12. Thangavelu
... Respondents
PRAYER : Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus, call for the records connected with the order of the respondent No.9 in Na.Ka.A10/5815/2023 dated 04.12.2023 and quash the same as illegal and consequently direct the respondents No.5 to 11 to take action to remove the encroachment made by the respondent No.12 by obstructing the pathway used by the petitioner and his neighbours to visit their respective homes, by considering the representation of the petitioner dated 14.11.2023 in accordance with law within the time stipulated by this Court.
For Petitioner : Mr.R.Alagumani
For Respondents : Mr.S.P.Maharajan, Special Govt. Pleader for R1 to R11
O R D E R
[Order of the Court was made by D.KRISHNAKUMAR, J.]
This Writ Petition has been filed for issuance of a Writ of Certiorarified Mandamus, calling for the records connected with the order of the respondent No.9 in Na.Ka.A10/5815/2023 dated 04.12.2023 and quash the same as illegal and consequently direct the respondents No.5 to 11 to take action to remove the
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W.P.(MD) No.1552 of 2024
encroachment made by the respondent No.12 by obstructing the pathway used by the petitioner and his neighbours to visit their respective homes, by considering the representation of the petitioner dated 14.11.2023 in accordance with law within the time stipulated by this Court.
2 . This Writ Petition is taken up for final disposal at the admission stage
itself.
3. According to the petitioner, he is residing in S.No.72/2022 of Karambakudi Village, Karambakudi Taluk, Pudukottai District along with his family members for more than past five generations. The respondent No.12 has attempted to encroach upon the common pathway with an ulterior motive to block the pathway that is being used by more than 10 families. The petitioner further stated that without impleading him, the 12th respondent has filed a Writ Petition before this court in W.P.(MD)No.5482 of 2023, seeking a direction to re-align the property in question in the Field Measurement Book of S.No.72 and join the said property with S.No.72/22D, 72/22F and S.No.72/24F. In the said
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W.P.(MD) No.1552 of 2024
Writ Petition, the 12th respondent stated that there was some space left behind two houses and some third parties were tried to use such space as pathway. This Court by order dated 06.06.2023, directed the respondents 4, 9, 10 and 11 to take a decision on the basis of the records and more specifically, on the basis of the reports from the respondents 9 and 11 herein viz., the survey department. However, before commencing of such exercise, the respondent No.12 had fraudulently obtained patta in S.No.72/22G and had blocked the pathway by constructing a block in the said land. The petitioner has also filed an appeal before the respondent No.8, to cancel the patta issued to the respondent No.12 and the same is pending.
4. The petitioner has sent a representation dated 14.11.2023, requesting to remove the block in the pathway made by the respondent No.12 and to facilitate the pathway for himself and 10 other families, who are using the pathway. However, without considering the said representation, the respondent No.9 had passed the impugned order, directing the petitioner to approach the Court of law. As against the said order, the petitioner has filed this Writ Petition.
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5.
W.P.(MD) No.1552 of 2024
5. Considering the facts and circumstances of the case, we are of the view that these are the matters to be decided by the Civil Court by adducing oral and documentary evidence and therefore, we are not inclined to entertain this Writ petition. Further, this Court has already passed an order directing the Director of Survey and Land Records, to take a decision after getting report from the Survey Department. Therefore, if the Survey Department has passed such order, if necessary the petitioner shall approach the civil Court for his right to use the pathway.
6. With the above liberty, this Writ Petition is dismissed. There shall be no
order as to costs. Consequently, connected miscellaneous petitions are closed.
[D.K.K., J.] [R.V., J.] vsm 29.01.2024 NCC : Yes / No Index : Yes / No
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To
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W.P.(MD) No.1552 of 2024
D.KRISHNAKUMAR, J. and R.VIJAYAKUMAR, J.
vsm
W.P.(MD) No.1552 of 2024
29.01.2024
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1 issue framed by the court
Whether a writ petition lies to quash the survey authority's order and direct removal of an alleged encroachment blocking a common pathway, or whether the dispute must go before the Civil Court.
1 provisions across 1 enactments
M.Suresh
The Principal Secretary to the Government, Department of Registration, Government of Tamilnadu
The Principal Secretary, Department of Revenue, Government of Tamil Nadu
The Inspector General of Registration
The Director of Survey and Land Records
Thangavelu
D.Krishnakumar
R.Vijayakumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
