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2016 DIGILAW 4105 (MAD)

R. Velayutham v. Assistant Divisional Engineer, Highways Constructions and Maintenance, Natham Dindigul District

2016-12-07

A.SELVAM, P.KALAIYARASAN

body2016
ORDER : A. SELVAM, J. W.P(MD)No.23227 of 2016 has been filed under Article 226 of the Constitution of India praying to call for records relating to the notice dated 21.11.2016 issued by the first respondent and quash the same by way of passing a writ of certiorarified mandamus. 2. It is averred in the petition that the petitioner is the absolute owner of the property mentioned in the impugned notice dated 21.11.2016. But the first respondent without considering the ownership of the petitioner has erroneously issued the impugned notice whereby directed the petitioner to remove all household articles so as to enable the respondents to remove alleged encroachments. Under the said circumstances, the present writ petition has been filed for getting the relief sought therein. 3. W.P(MD)No.19175 of 2016 has been filed under Article 226 of the Constitution of India praying to direct the respondents 1 to 4 to remove the encroachments alleged to have been made by the fifth respondent by way of issuing a writ of mandamus. 4. It is averred in the petition that the petitioner has been using the property mentioned in the petition as a pathway and the fifth respondent has illegally encroached the same. Under the said circumstances, the present writ petition has been filed for getting the relief sought therein. 5.The learned counsel appearing for the petitioner in W.P(MD)No.23227 of 2016 has repeatedly contended to the effect that the property of the petitioner is comprised in Survey No.212/15 and the same is situate just on the western side of highways road, which is comprised in Survey No.214/2 and in between the property of the petitioner and highways road, there is a ditch formed by Village Panchayat and under the said circumstances question of encroachment in a portion of highways road does not arise. But the first respondent without measuring the property in question has erroneously issued the notice dated 21.11.2016 and under the said circumstances the impugned notice dated 21.11.2016 is liable to be quashed. 6. The learned counsel appearing for the petitioner in W.P(MD)No.19175 of 2016 has contended that the fifth respondent therein has encroached a pathway and under the said circumstances the petitioner has not been able to use the same and therefore the respondents 1 to 4 are liable to evict the fifth respondent. 7. 6. The learned counsel appearing for the petitioner in W.P(MD)No.19175 of 2016 has contended that the fifth respondent therein has encroached a pathway and under the said circumstances the petitioner has not been able to use the same and therefore the respondents 1 to 4 are liable to evict the fifth respondent. 7. Per contra the learned Additional Government Pleader has contended that highways road is situate in Survey No.214/2 and the petitioner found in W.P(MD)No.23227 of 2016 has encroached a portion of the same and therefore the first respondent has rightly issued the notice dated 21.11.2016 and since the first respondent has validly issued the notice dated 21.11.2016, the same is not liable to be quashed. 8. On the side of the respondents, a relevant document has been submitted, wherein it has been clearly stated that highways road is situate in Survey No.214/2. The specific contention put forth on the side of the petitioner in W.P(MD)No.23227 of 2016 is that his property is situate in Survey No.212/15 and in between his property and highways road, there is a ditch formed by Village Panchayat and therefore question of encroachment in any portion of highways road does not arise. 9. The main gravamen expressed on the side of the petitioner in W.P(MD)No.23227 of 2016 is that even without measuring the disputed area with relevant revenue records, the first respondent has issued the impugned notice dated 21.11.2016. 10. It has already been pointed out that Survey No.212/15 is situate just immediately on the western side of Survey No.214/2/Highways road. Since Survey No.214/2 is situate immediately on the western side of highways road, the alleged encroachment has to be ascertained only by way of making proper measurements with the aidance of revenue records. In the instant case no such document has been in existence on the side of the respondents. Under the said circumstances, for the purpose of giving quietus to the parties, this Court is of the view to direct the respondents 1 and 2 in W.P(MD)No.23227 of 2016 to measure Survey Nos.214/2 and 212/15 for the purpose of ascertaining the alleged encroachment made by the petitioner and therefore the notice dated 21.11.2016 is liable to be quashed. 11. Now we have to look into the relief sought in W.P(MD)No.19175 of 2016. In W.P(MD)No.19175 of 2016, relief of writ of mandamus has been sought. 11. Now we have to look into the relief sought in W.P(MD)No.19175 of 2016. In W.P(MD)No.19175 of 2016, relief of writ of mandamus has been sought. Since in W.P(MD)No.23227 of 2016, the respondents 1 and 2 can be directed to measure the disputed land with reference to revenue records for the purpose of ascertaining the alleged encroachment made in Survey No.214/2, the relief sought in W.P(MD)No.19175 of 2016 can also be granted. 12. In fine, (i)W.P(MD)No.23227 of 2016 is allowed without costs. The notice dated 21.11.2016 issued by the first respondent is quashed and the respondents 1 and 2 are directed to measure Survey Nos.212/15 and 214/2 with reference to revenue records and ascertain the alleged encroachments made in Survey No.214/2 and if there is any encroachment, liberty is given to the respondents 1 and 2 to remove encroachment as per law within a period of two months. Consequently, connected Miscellaneous Petition is closed. (ii) W.P(MD)No.19175 of 2016 is allowed without costs. The respondents 1 to 4 are directed to obey the direction given in the order passed in W.P (MD)No.23227 of 2016.