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W.P.No.20819 of 2023IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 13.06.2024CORAM :THE HONOURABLE DR.JUSTICE ANITA SUMANTHW.P.No.20819 of 2023andW.M.P.No.20192 of 2023K.Velumani.. Petitionervs1.District Collector, Erode District, Office of District Collector, Perundurai road, Erode.2.Revenue Divisional Officer, Erode Revenue Division, Brough Road, Erode.3.The Tahsildar Office of the Tahsildar, Erode Taluk, Cuchery Road, Erode. .. RespondentsPetition filed under Article 226 of the Constitution of India praying to issue a writ of mandamus forbearing the respondents from obstructing the access of the petitioner through the public cart track situated in R.S.No.14/3, Thindal Oor Village, Erode Taluk, Erode District by constructing a fence or barricade and thereby render justice.For Petitioner:Mr.R.HarikrishnanFor Respondents:Mr.M.R.Gokul KrishnanAdditional Government PleaderORDERThe prayer of the petitioner is for a mandamus forbearing the respondents from obstructing access to the petitioner's property through at R.S.No.14/3, Thindal Oor Village, Erode Taluk, Erode District 1/6 https://www.mhc.tn.gov.in/judis W.P.No.20819 of 2023('vandipathai' / 'cart track').2. The petitioner claims to be the absolute owner of the property in Survey No.14 /4 and 14/5A, Thindal Oor Village, Erode Taluk. The southern boundary of his property abuts the vandipathai.3. The respondents propose to fence the cart tract for the reason that the petitioner has, in fact, been encroaching on the same and has been effecting cultivation on the vandipathai as well. 4. In the detailed counter filed by the third respondent i.e., the Tahsildar Erode, they refer to the guidelines issued along with letter dated 21.06.2022 of the Principal Secretary to the Government, Revenue and Disaster Management Department, which has emphasised the necessity to protect government lands. 5.Field reports were conducted in and around the district under instructions from the District Collector. The Revenue Divisional Officers and the Thasildars had identified the government puramboke lands in order that they may be protected by proper fencing. Vide report dated 29.08.2022, the Village Administrative Officer, 23-29.08.2022 submitted a report in regard to the petitioner's land and the vandipathai, reading thus:- “In that village accounts of Thindal (Mel) Village, Erode Taluk, the land bearing R.S.NOo.14/3- Sarkar Poramboke – 0.33.0 Hectare was recorded as 'Vandipathai'(Cart Trak). Now, the above land is vacant. Adjacent to the 'Vandipathai' poramboke there are agricultural land. Though the above land is recorded in the village accounts as 'Vandipathai', the land is not being used as 'Vandipathai'. There is a situation that the pattadars near to the land would occupy the 'Vandipathai'. The land bearing Nos. 2/6 https://www.mhc.tn.gov.in/judis W.P.No.20819 of 202317/2 – Sarkar Poramboke – 0.14.0 hectares and R.S.No.18/2 – Sarkar Poramboke – 0.43.5 hectare abutting to the above 'Vandipathai' are also recorded as 'Vandipathai'. Now, the general public is using the Vandipathai in the R.S.No.17 and 18 as pathway. If the fencing erected surrounding to the 'Vandipathai' land in the R.S.No.14/3, it will not cause any hindrance to the general public. Since there are situations prevails for the encroachments in the Government Poramboke land bearing Nos. 17/2 – Sarkar Poramboke – 0.14.0 hectares and R.S.No.18/2 – Sarkar Poramboke – 0.43.5 hectare and also protecting it with fences, action may be taken to erect the barbed wire fencing surrounding to the above lands.”6.The entire issue came to be triggered by this report and as a measure to protect the vandipathai, a fence is proposed to be laid. 7.In the counter filed initially on 02.08.2022, the respondents took the stand that fencing of vandipathai would not prejudice the petitioner's access to his land since his wife's land, abuts his land and he could very well access his property through in that manner.8.Upon a prima facie consideration of the matter, particularly the fact that the entirety of the petitioner's frontage would stand fenced by virtue of the present proposal, this order came to be passed on 11.10.2023:-“Prima facie the proposal to fence in the cart track / vandipathai that abuts the petitioner's property appears misconceived. 2. The maps that have been circulated by both the petitioner as well as the respondents reveal that the petitioner's property has a long frontage abutting the vandipathai. On the north, the petitioner's property is bound by the lower Bavani Project Canal and to the west and east, there are private properties. Therefore, ingress to the petitioner's property is primarily through the front and if the 3/6 https://www.mhc.tn.gov.in/judis W.P.No.20819 of 2023proposal to fence vandipathai is carried forward there would be very limited access to the petitioner's property. 3. In this regard useful reference may be made to a decision of this Court in O.N.Natarajan and another v The Municipal Council, Turaiyur, Rep. By its Executive Authority and Commissioner (1990) 2 MLJ 506. The issue in that case related to whether the action of the defendant municipality to put up a wire fence with stone pillars along the southern boundary of the suit property obstructing access of the plaintiffs to those suit properties from the road in the south, was correct. 4. In that context, this Court has held that once it is approved that the suit street is a public street, it follows that the plaintiffs, being owners of the property abutting that public street, have right of access to the suit street from any part of their premises. Thus, action of the municipality in putting up a fence preventing plaintiffs from having access to the street was negated. 5. In this case, the petitioner appears to stand on a better footing as the proposed fence would restrict the right of entry to his own property. Faced with this position, learned counsel for the respondent seeks a week's time to obtain instructions. 6. List on 18.10.2023 within the top five matters of the regular list.” 9. The matter was thereafter listed on 18.10.2023 and the following order was passed:-“Read this order in continuation of and in conjunction with order dated 11.10.2023. Today, Mr. Anandakumar, would put forth, in addition to averments in counter of R3 dated 02.08.2023 that the necessity for fencing in the vandipathai / cart track arose on account of the petitioner having encroached upon the land that abuts the cart track. Hence, it is their case that the strips of land adjoining cart track are in fact not private property of the petitioner but poromboke land. This submission does not align with the map that has been placed at page 7 of compilation filed by the respondents, where there is no encroachment reflected. 4/6 https://www.mhc.tn.gov.in/judis W.P.No.20819 of 20232. In such circumstances, let respondents, particularly, the Revenue Divisional Officer and the Tahsildar, cause inspection of the land in question, in the presence of the petitioner, measure the portion of land which the petitioner owns, and file a revised map, also providing aerial view of the property to clarify this aspect of the matter. 3. List on 20.11.2023.” 10.The matter was adjourned thereafter on several occasions to await completion of pleadings. On 07.06.2024, the respondents ultimately came up with the proposal under instructions in Ref. : 5703/2022 A4 dated 07.06.2024 that the petitioner will be given 23 feet i.e., (7 meter) for purposes of entry and the fencing would be commensurate with this revised proposal. The instructions were made available to the petitioner's counsel to enable him to communicate the same to the petitioner. 11.Today, the petitioner's counsel reports that the petitioner is still not satisfied, as he wants the entirety of the frontage of his property to be left open. This Court does not see any merit in that submission. Fencing of the frontage will only enure to the advantage of the petitioner and serve to secure his property. 12.The Court finds legitimacy in the proposal of the respondents to fence the vandipathai upon condition that 23 ft (7 meter) on the perimeter of the vandipathai be left open to facilitate ingress / egress into the petitioner's property. This would also serve to contain encroachments by the petitioner. 5/6 https://www.mhc.tn.gov.in/judis W.P.No.20819 of 2023DR. ANITA SUMANTH,J.13.Recording the trajectory of events supra, this writ petition is closed. No costs. Connected miscellaneous petition is closed.13.06.2024Index:Yes/NoNeutral Citation:YesssmTo1.The District Collector, Erode District, Office of District Collector, Perundurai road, Erode.2.The Revenue Divisional Officer, Erode Revenue Division, Brough Road, Erode.3.The Tahsildar Office of the Tahsildar, Erode Taluk, Cuchery Road, Erode.W.P.No.20819 of 20236/6
W.P.No.20819 of 2023IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 13.06.2024CORAM :THE HONOURABLE DR.JUSTICE ANITA SUMANTHW.P.No.20819 of 2023andW.M.P.No.20192 of 2023K.Velumani.. Petitionervs1.District Collector, Erode District, Office of District Collector, Perundurai road, Erode.2.Revenue Divisional Officer, Erode Revenue Division, Brough Road, Erode.3.The Tahsildar Office of the Tahsildar, Erode Taluk, Cuchery Road, Erode. .. RespondentsPetition filed under Article 226 of the Constitution of India praying to issue a writ of mandamus forbearing the respondents from obstructing the access of the petitioner through the public cart track situated in R.S.No.14/3, Thindal Oor Village, Erode Taluk, Erode District by constructing a fence or barricade and thereby render justice.For Petitioner:Mr.R.HarikrishnanFor Respondents:Mr.M.R.Gokul KrishnanAdditional Government PleaderORDERThe prayer of the petitioner is for a mandamus forbearing the respondents from obstructing access to the petitioner's property through at R.S.No.14/3, Thindal Oor Village, Erode Taluk, Erode District 1/6 https://www.mhc.tn.gov.in/judis W.P.No.20819 of 2023('vandipathai' / 'cart track').2. The petitioner claims to be the absolute owner of the property in Survey No.14 /4 and 14/5A, Thindal Oor Village, Erode Taluk. The southern boundary of his property abuts the vandipathai.3. The respondents propose to fence the cart tract for the reason that the petitioner has, in fact, been encroaching on the same and has been effecting cultivation on the vandipathai as well. 4. In the detailed counter filed by the third respondent i.e., the Tahsildar Erode, they refer to the guidelines issued along with letter dated 21.06.2022 of the Principal Secretary to the Government, Revenue and Disaster Management Department, which has emphasised the necessity to protect government lands. 5.Field reports were conducted in and around the district under instructions from the District Collector. The Revenue Divisional Officers and the Thasildars had identified the government puramboke lands in order that they may be protected by proper fencing. Vide report dated 29.08.2022, the Village Administrative Officer, 23-29.08.2022 submitted a report in regard to the petitioner's land and the vandipathai, reading thus:- “In that village accounts of Thindal (Mel) Village, Erode Taluk, the land bearing R.S.NOo.14/3- Sarkar Poramboke – 0.33.0 Hectare was recorded as 'Vandipathai'(Cart Trak). Now, the above land is vacant. Adjacent to the 'Vandipathai' poramboke there are agricultural land. Though the above land is recorded in the village accounts as 'Vandipathai', the land is not being used as 'Vandipathai'. There is a situation that the pattadars near to the land would occupy the 'Vandipathai'. The land bearing Nos. 2/6 https://www.mhc.tn.gov.in/judis W.P.No.20819 of 202317/2 – Sarkar Poramboke – 0.14.0 hectares and R.S.No.18/2 – Sarkar Poramboke – 0.43.5 hectare abutting to the above 'Vandipathai' are also recorded as 'Vandipathai'. Now, the general public is using the Vandipathai in the R.S.No.17 and 18 as pathway. If the fencing erected surrounding to the 'Vandipathai' land in the R.S.No.14/3, it will not cause any hindrance to the general public. Since there are situations prevails for the encroachments in the Government Poramboke land bearing Nos. 17/2 – Sarkar Poramboke – 0.14.0 hectares and R.S.No.18/2 – Sarkar Poramboke – 0.43.5 hectare and also protecting it with fences, action may be taken to erect the barbed wire fencing surrounding to the above lands.”6.The entire issue came to be triggered by this report and as a measure to protect the vandipathai, a fence is proposed to be laid. 7.In the counter filed initially on 02.08.2022, the respondents took the stand that fencing of vandipathai would not prejudice the petitioner's access to his land since his wife's land, abuts his land and he could very well access his property through in that manner.8.Upon a prima facie consideration of the matter, particularly the fact that the entirety of the petitioner's frontage would stand fenced by virtue of the present proposal, this order came to be passed on 11.10.2023:-“Prima facie the proposal to fence in the cart track / vandipathai that abuts the petitioner's property appears misconceived. 2. The maps that have been circulated by both the petitioner as well as the respondents reveal that the petitioner's property has a long frontage abutting the vandipathai. On the north, the petitioner's property is bound by the lower Bavani Project Canal and to the west and east, there are private properties. Therefore, ingress to the petitioner's property is primarily through the front and if the 3/6 https://www.mhc.tn.gov.in/judis W.P.No.20819 of 2023proposal to fence vandipathai is carried forward there would be very limited access to the petitioner's property. 3. In this regard useful reference may be made to a decision of this Court in O.N.Natarajan and another v The Municipal Council, Turaiyur, Rep. By its Executive Authority and Commissioner (1990) 2 MLJ 506. The issue in that case related to whether the action of the defendant municipality to put up a wire fence with stone pillars along the southern boundary of the suit property obstructing access of the plaintiffs to those suit properties from the road in the south, was correct. 4. In that context, this Court has held that once it is approved that the suit street is a public street, it follows that the plaintiffs, being owners of the property abutting that public street, have right of access to the suit street from any part of their premises. Thus, action of the municipality in putting up a fence preventing plaintiffs from having access to the street was negated. 5. In this case, the petitioner appears to stand on a better footing as the proposed fence would restrict the right of entry to his own property. Faced with this position, learned counsel for the respondent seeks a week's time to obtain instructions. 6. List on 18.10.2023 within the top five matters of the regular list.” 9. The matter was thereafter listed on 18.10.2023 and the following order was passed:-“Read this order in continuation of and in conjunction with order dated 11.10.2023. Today, Mr. Anandakumar, would put forth, in addition to averments in counter of R3 dated 02.08.2023 that the necessity for fencing in the vandipathai / cart track arose on account of the petitioner having encroached upon the land that abuts the cart track. Hence, it is their case that the strips of land adjoining cart track are in fact not private property of the petitioner but poromboke land. This submission does not align with the map that has been placed at page 7 of compilation filed by the respondents, where there is no encroachment reflected. 4/6 https://www.mhc.tn.gov.in/judis W.P.No.20819 of 20232. In such circumstances, let respondents, particularly, the Revenue Divisional Officer and the Tahsildar, cause inspection of the land in question, in the presence of the petitioner, measure the portion of land which the petitioner owns, and file a revised map, also providing aerial view of the property to clarify this aspect of the matter. 3. List on 20.11.2023.” 10.The matter was adjourned thereafter on several occasions to await completion of pleadings. On 07.06.2024, the respondents ultimately came up with the proposal under instructions in Ref. : 5703/2022 A4 dated 07.06.2024 that the petitioner will be given 23 feet i.e., (7 meter) for purposes of entry and the fencing would be commensurate with this revised proposal. The instructions were made available to the petitioner's counsel to enable him to communicate the same to the petitioner. 11.Today, the petitioner's counsel reports that the petitioner is still not satisfied, as he wants the entirety of the frontage of his property to be left open. This Court does not see any merit in that submission. Fencing of the frontage will only enure to the advantage of the petitioner and serve to secure his property. 12.The Court finds legitimacy in the proposal of the respondents to fence the vandipathai upon condition that 23 ft (7 meter) on the perimeter of the vandipathai be left open to facilitate ingress / egress into the petitioner's property. This would also serve to contain encroachments by the petitioner. 5/6 https://www.mhc.tn.gov.in/judis W.P.No.20819 of 2023DR. ANITA SUMANTH,J.13.Recording the trajectory of events supra, this writ petition is closed. No costs. Connected miscellaneous petition is closed.13.06.2024Index:Yes/NoNeutral Citation:YesssmTo1.The District Collector, Erode District, Office of District Collector, Perundurai road, Erode.2.The Revenue Divisional Officer, Erode Revenue Division, Brough Road, Erode.3.The Tahsildar Office of the Tahsildar, Erode Taluk, Cuchery Road, Erode.W.P.No.20819 of 20236/6