S. Mahalingam vs The District Collector and Others

R. Banumathi, J.—The Petitioner seeks a Writ of Mandamus directing the Respondents 1 to 4 to maintain Survey Nos. 91/5 and 91/4

Oduvanpatti, Melapatti Zone, Thiruppathur Taluk, Sivagangai District, without any encroachments and remove the obstructions/temporary gate

erected therein by the fifth Respondent.

The case of the Petitioner is that he owns agricultural lands and the properties in S. Nos. 91/5 and 91/4 are classified as Government

Poromboke pathway as per village revenue records. The grievance of the Petitioner is that the fifth Respondent, who is in possession and

enjoyment of the property in S. No. 91/2, which lies to the North of the Pathway, has encroached into the pathway by putting up temporary gate 3

and thereby, the Petitioner has been prevented from entering into his property and therefore, the Petitioner seeks for a Mandamus as aforesaid.

We have heard the learned Counsel for the Petitioner, the learned Counsel appearing for the fifth Respondent and the learned Special

Government Pleader appearing for the Respondents 1 to 4.

From a perusal of the counter affidavit filed by the third Respondent, it is seen that S. No. 91/4 measuring an extent of 0.00.5 hectares and S.F.

No. 91/5 measuring an extent of 0.00.6 hectares of Oduvanpatti Village, Melapatti Group, Thirupathur Taluk are classified as Pathai (Road) in the

revenue records. The third Respondent has further stated that the fifth Respondent has made an encroachment in S. Nos. 91/4 and 91/5 by

erecting temporary gates and notices were issued to the fifth Respondent to evict his encroachment on 22.05.2009 and the encroachments were

removed by the Respondents on 12.08.2009. In the counter affidavit it is further stated that subsequent to the removal of encroachment made by

the fifth Respondent, the fifth Respondent again 4 encroached the same pathway by putting up temporary gates.

Stating that the fifth Respondent has filed a civil Suit before the District Munsif Court, Tiruppathur, in O.S. No. 129 of 2009, the learned

Counsel for the fifth Respondent submitted that the subject matter is in issue in the civil Court. By a perusal of the plaint in O.S. No. 129 of 2009,

it is seen that the suit property is only S. No. 91/2 to an extent of 002.70 hectares and not S. Nos. 91/4 and 91/5, which are classified as pathway

(Road).

The contention of the learned Counsel for the fifth Respondent that S. No. 91/4 and 91/5 are also the subject matter of the civil Suit does not

merit acceptance. The learned Counsel for the fifth Respondent would further submit that even if any encroachment has to be removed, the third

Respondent has to follow due process of law. By perusal of the averments in the counter affidavit, it is seen that the third Respondent has already

issued notice to the fifth Respondent for removal of encroachment, which is now disputed by the fifth Respondent.

In the result, the Writ Petition is allowed directing the third Respondent to remove the encroachment if any in S. Nos. 91/4 and 91/5, after

following the due process of law and after affording opportunity to the fifth Respondent as well as to the Petitioner, within a period of eight weeks

from the date of receipt of a copy of this order. It is made clear that pending of the civil suit in O.S. No. 129 of 2009 is not an impediment for the

third Respondent to proceed with the matter in accordance with law. Consequently, connected miscellaneous petition is closed. No costs.