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2013 DIGILAW 3001 (MAD)

R. Varadhan v. District Collector, Tiruchirapalli

2013-08-21

C.S.KARNAN

body2013
Judgment : 1. The brief facts of the case are as follows:- The writ petitioner submits that he is the absolute owner of the property measuring 3.50 acres in T.S.No.2300 in Srirangam, within Tiruchirapalli Municipal Corporation limits. These lands along with lands in Survey No.2316 and 2318 belongs to their family and he and his ancestors have been in possession and enjoyment of these lands for over 180 years. The petitioner further submits that the lands were purchased by his ancestors, by name, Pichaiammal, in the name of her sons Perumal Achari and Shankaran Achari in 1822-23. She constituted a Trust and dedicated the income from the lands for charitable purpose. She constituted herself as the First Trustee, by document dated 31.01.1837 and later on one Subbaraya Achari succeeded her as the hereditary Trustee. Now, the petitioner is in possession of the properties as sole Trustee adhering to the charities. In the said properties, there is a building where the petitioner is residing and a Chatram and a Mandabam. Apart from the said buildings, there is a shop and 30 huts occupied by different tenants, apart from a coconut thope with nearly 400 coconut trees in the remaining lands. 2. The petitioner further submits that in or about 1938, the first respondent issued notice to his father, viz., Mr.Ramasamy Achari under Act III of 1905, terming his possession of lands in T.S.No.2300 as an encroachment and levelled penal charges. In the said notice, the first respondent claimed that the lands are shown as Poromboke in the settlement register. The petitioner further submits that his father, Mr.Ramasamy Achari who was the Trustee and in possession of the land, filed a suit in O.S.No.442 of 1938, on the file of the District Munsiff Court at Tiruchirapalli, inter-alia praying for declaration of his title and to hold the notice as illegal and for consequential injunction and refund of penal charges collected under coercion. The learned District Munsiff, after an elaborate trial decreed the suit holding that the said lands belongs to the Trust and the Government has no right over the same, since it has been proved that it is a private property and directed refund of the penal charges collected. The first respondent is the defendant in the said suit. The civil Court decree has become final and is binding the respondents. The first respondent is the defendant in the said suit. The civil Court decree has become final and is binding the respondents. His father continued to be in possession of the lands as absolute owner of the property. 3. At this juncture, the petitioner's father had executed a Will in the year 1970, in his favour and bequeathing the land in Survey No.2300 to him. The lands in T.S.No.2316, 2318 was bequeathed to his brother Arumugam in the same Will. His father expired in the year 1971 and ever since, he is in possession of the lands and performing charities and running water panthal. The building is assessed to tax and he is paying the tax regularly. Under these circumstances, on 28.08.2002, the official belonging to the Revenue Department along with Corporation Officials and servants of the third respondent, without any notice, entered the lands and started measuring and marking of the lands. He objected to the unauthorized act of the respondents. Thereafter, the respondents left the place and directed him to appear before third respondent with all records to substantiate his title on 29.08.2002. On that day, he appeared before the third respondent viz., the Executive Engineer, who is attached to the Tamil Nadu Water Drainage Board, Tiruchirapalli and produced all title deeds, tax receipts and the decree and judgment in O.S.No.442 of 1938, dated 04.10.1939. The respondents refused to look into these documents and informed him that they are going to set-up a sewage plant on the lands and directed him to vacate and hand over the possession of the lands within three days, failing which, coercive action will be taken with the help of the police and they will take possession of the lands. The petitioner further submits that he issued a legal notice to the respondents informing them of the above facts and impressed upon them the fact that the lands are private lands and the respondents have no right to interfere with his possession, except under the due process of law. On receipt of the notice, the third respondent informed him that the second respondent has directed him to proceed with the acquisition of lands and he will be taking possession with the help of police. Hence, the above writ petition has been filed in order to prevent the respondents from interfering with the peaceful possession and enjoyment. 4. On receipt of the notice, the third respondent informed him that the second respondent has directed him to proceed with the acquisition of lands and he will be taking possession with the help of police. Hence, the above writ petition has been filed in order to prevent the respondents from interfering with the peaceful possession and enjoyment. 4. The above writ petition has been filed in the year 2002. The respondents herein have not filed their counter statement even as on date and therefore, this Court is constrained to pass final order since the writ petition is pending for about 10 years, on this Court file. 5. The highly competent counsel for the petitioner submits that the petitioner's father had filed an original suit in O.S.No.442 of 1938, on the file of District Munsif Court, Tiruchirapalli, for injunction and declaration stating that he is in physical possession and enjoyment of the lands from the year 1822. The said suit has been decreed in his favour. His father had remitted tax to the second respondent, on the demand notice of the second respondent. The learned counsel supporting his contention has annexed decree and judgment, land tax receipts, demand notice issued by the second respondent and legal notice issued by the petitioner herein to the respondents. Further, over the said property, there is a building, chatram and mandapam, which are being used for charitable purpose. Besides this, there is a shop and 30 huts occupied by lawful tenants. Apart from this, 400 coconut trees, which are about 100 years old are standing over the lands, which is substantial evidence that the petitioner is maintaining the properties through coconut tree plantation. All of a sudden, on 28.08.2002, the respondents and other revenue officials made unlawful entries and started measuring the lands which is an illegal activity of the respondents and also had unlawfully interfered with the peaceful possession of the petitioner. The very competent counsel appearing for the petitioner further pointed out that the civil Court decree has become final and that it is existing and operating over the property. The respondents who are powerful have taken state machinery and law in their hands and attempted to take over the property by coercive steps. If the same is allowed, the petitioner and his 30 lawful tenants will be put into hardship. The respondents who are powerful have taken state machinery and law in their hands and attempted to take over the property by coercive steps. If the same is allowed, the petitioner and his 30 lawful tenants will be put into hardship. Further, the charity arrangements, which is now functioning over the property, will be disturbed. 6. The learned counsel for the first respondent argued that the petitioner is not the owner of the property and he is enjoying the property as a trespasser. His father and forefathers had created documents over the said property as owners which are self serving documents among themselves. The revenue authorities so far had not issued any patta in the name of the petitioner nor his ancestors. The Government records over the said properties have not been mutated in the name of the petitioner or his ancestors. 7. The highly competent counsel for the second respondent argued that the property is situated within the Municipality limits. The decree and judgments in O.S.No.442 of 1938 will not be binding over the second respondent since the second respondent was not a party in the said suit. The petitioner is remitting tax as penal tax for enjoyment of Government land. The learned counsel further submits that the petitioner's father had marked one of the documents in O.S.No.442 of 1938, viz., 'B Memo" which clearly indicates that the property belongs to the Government. 8. The very competent counsel for the third respondent argued that the property is required for putting up a sewage plant in the said premises for public purpose. Therefore, the third respondent with the co-operation of the first and second respondents tried to take over the property since the same is Government property. Therefore, prior notice is not necessary and due process of law does not arise in this case. As per revenue records, the land is classified as Government poromboke. The petitioner claiming civil rights over the said property on the basis of cause of action i.e., 28.08.2002, the allegation made against the respondents, had made an unlawful entry over the property. The petitioner's remedy lies only before the concerned civil forum regarding settlement of dispute of title and other issues over the property and therefore, the writ petition is not maintainable. 9. The petitioner's remedy lies only before the concerned civil forum regarding settlement of dispute of title and other issues over the property and therefore, the writ petition is not maintainable. 9. Per contra, the very competent counsel for the petitioner submits that the petitioner and his ancestor are in physical possession and enjoying the entire property for the past 180 years without any disturbance. Further, the petitioner's father has filed a declaration suit and his father was declared as owner of property. Along with the said suit in O.S.No.442 of 1938, his father had filed patta and also land tax receipts. Therefore, the respondent could not classify the land as Government poromboke. The respondents are Government officials and they made an unlawful attempt to interfere with the physical possession of the petitioner's land and therefore, the above writ petition is maintainable as it has been filed only to prevent the Government officials from interfering with his possession. 10. On considering the facts and circumstances of the case and arguments advanced by all the learned counsels and on perusing the affidavit of the petitioner and annexed documents, this Court is inclined to entertain the writ petition since it is evident on scrutiny of documents that the petitioner is in possession of the said property. However, the respondents are at liberty to initiate legal proceedings for acquiring the land, after adopting due process of law. 11. In the result, the above writ petition is allowed. Consequently, the respondents, their men, agents or any one acting on their behalf are prevented from in any manner taking forceful possession of the lands in Survey Nos.2300, 2316 and 2318, Timmaraja Samuthiram Village. Connected miscellaneous petitions are closed. Accordingly ordered.