✦ High Court of India · 25 Mar 2025

High Court · 2025

Case Details High Court of India · 25 Mar 2025

Court

High Court of India

Decided

25 Mar 2025

Bench

M SUNDAR

Length

1,631 words

Acts & Sections

Constitution of India Limitation Act 1963 Tamil Nadu Encroachment Act 1905 The Tamil Nadu Land Encroachment Act 1905

W.P.No.24443 of 2021IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 25.03.2025CORAMTHE HONOURABLE MR.JUSTICE M.SUNDAR andTHE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADIW.P.No.24443 of 2021 P.Chinnasamy... PetitionerVs.1.The District Collector, Tiruppur, Tiruppur District.2.The Revenue Tahsildar, Uthukuli Taluk, Tiruppur District.3.Lakshmi ... Respondents Writ Petition filed under Article 226 of The Constitution of India praying to issue a Writ of Certiorarified Mandamus to call for the records pertaining to the orders of the second respondent in Na.Ka.No.988/2018/A2 dated 03.08.2021 and to quash the same as illegal, incompetent and ultravires and consequently direct the respondents to remove the encroachment made in public passage bearing S.F.No.619/16 of Chengapalli Village, Uthukuli Taluk, Tiruppur District.Page Nos.1/13 https://www.mhc.tn.gov.in/judis W.P.No.24443 of 2021For Petitioner : Mr.S.Umashankarfor Mr.M.GuruprasadFor Respondents:Mr.T.K.Saravanan,Additional Government Pleaderfor R1 and R2ORDER[Order of the Court was made by M.SUNDAR, J.,]In the captioned main 'Writ Petition' (hereinafter 'WP' for the sake of brevity), Mr.S.Umashankar, learned counsel representing Mr.M.Guruprasad, learned counsel on record for writ petitioner, Mr.T.K.Saravanan, learned Additional Government Pleader for official respondents/R1 and R2 are before us. As regards R3/private respondent (Ms.Lakshmi, W/o.Mr.Raj), R3 has been duly served and name and address of R3 is shown in the cause list but there is no representation either in the physical Court or on VC (video conferencing) platform. To be noted, this is a hybrid hearing, which is a regular/routine/daily feature in this Court. This Court is informed by the Registry that R3 has not chosen to enter appearance through any counsel.Page Nos.2/13 https://www.mhc.tn.gov.in/judis W.P.No.24443 of 20212. This Court heard out captioned WP.3. Subject matter of captioned WP is 'land comprised in Survey No.619/16 in Chengapalli Village, Uthukuli Taluk, Tiruppur District' (hereinafter 'said land' for the sake of convenience and clarity).4. Writ petitioner came to this Court by way of a writ petition being W.P.No.16854 of 2018 with a mandamus plea seeking a direction to the official respondents to consider the petitioner's representations dated 15.02.2017 and 14.05.2018 seeking removal of encroachments said to have been put up by R3 in said land. This writ petition was disposed of by another Hon'ble Division Bench in and by an order dated 06.07.2018 iner-alia directing action under 'The Tamil Nadu Land Encroachment Act, 1905 (Tamil Nadu Act III of 1905)' {hereinafter 'said 1905 Act' for the sake of brevity}.5. Pursuant to aforesaid order, action under said 1905 Act was commenced and the same culminated in a notice/order dated 24.09.2018 made by R2 [Revenue Tahsildar, Uthukuli Taluk, Tiruppur District] being an order under Section 6 of said 1905 Act. This Page Nos.3/13 https://www.mhc.tn.gov.in/judis W.P.No.24443 of 202124.09.2018 order was assailed by R3 (Ms.Lakshmi) by way of a writ petition being W.P. No.27573 of 2018 and this writ petition came to be disposed of by another Hon'ble Division Bench in and by an order dated 16.10.2018 wherein and whereby 24.09.2018 order under Section 6 of said 1905 Act was set aside. R2 was directed to consider the reply/objection for Section 7 notice and R2 was further directed to pass a reasoned order on merits and in accordance with law within a time frame of two months.6. Thereafter, R2 adverting to both aforementioned orders of this Court i.e., order dated 06.07.2018 in W.P. No.16854 of 2018 and order dated 16.10.2018 in W.P. No.27573 of 2018 conducted a joint survey of said land and concluded that R3 (Ms.Lakshmi) had put up a superstructure (house) but said land has been classified as 'road' in the revenue records. Thereafter, R2 concluded that no action for removal of superstructure put up by Ms.Lakshmi is necessary as access to Mr.Chinnsamy's property is not fully obstructed. This is vide 'order dated 03.08.2021 bearing reference e/f/988-2018-m2 made by R2' (hereinafter 'impugned order' for the sake of convenience and clarity). Assailing the impugned order and seeking a direction to official Page Nos.4/13 https://www.mhc.tn.gov.in/judis W.P.No.24443 of 2021respondents to remove the encroachment in said land, captioned WP has been filed.7. To be noted, certiorari limb of the prayer assails impugned order and vide mandamus limb, a direction has been sought for removal of encroachment in said land.8. At this juncture, before proceeding further, we deem it appropriate to capture the common stated position of learned counsel for writ petitioner as well as learned State counsel. Learned counsel on both sides submit in one voice that there is a typographical error in the impugned order and survey number of said land has been wrongly mentioned as 619/6 whereas it is 619/16. This common submission made by both sides without any disputation or contestation is recorded and all further proceedings will be on this basis.9. Reverting to the main legal drill at hand, from the narrative thus far, it is clear that impugned order is an order under Section 6 of said 1905 Act. Writ petitioner has filed the WP by stating that the order under Section 6 is appealable only at the instance of encroacher and Page Nos.5/13 https://www.mhc.tn.gov.in/judis W.P.No.24443 of 2021an order of refusal to remove encroachment is not appealable. This has been articulated in paragraph 13 of writ affidavit which reads as follows:'13. I submit that order of eviction passed under section 6 is appealable at the instance of the Encroacher under section 10 as per the Tamil Nadu Encroachment Act 1905 and the order of refusal to remove encroachment by the original authority, there is no appeal provision and hence in the above circumstances I have no other alternative, effective or efficacious remedy; I am approaching this Hon'ble court by invoking the extraordinary jurisdiction conferred under Article 226 of the Constitution of India.'10. This Court is of the considered view that the aforementioned submission is plainly incorrect. The reason is Section 10 of said 1905 Act makes it clear that an appeal shall lie to the Collector (R1 in this case) from 'any decision' or order made by a Tahsildar or Deputy Tahsildar as long as it is an order under the said 1905 Act. Section 10 of said 1905 Act reads as follows:Page Nos.6/13 https://www.mhc.tn.gov.in/judis W.P.No.24443 of 2021'10.Appeal.-- An appeal shall lie--(a)to the Collector from any decision or order passed by a Tahsildar or Deputy Tahsildar under this Act, and(aa)to such officer as may be specified by the State Government in this behalf (hereinafter referred to as the appellate authority) from any decision or order passed by an authorised officer under this Act and different appellate authorities may be specified for different classes of cases; and(b)to the District Collector from any decision or order of a Collector passed otherwise than on appeal, and(c) to the Commissioner of Land Administration from any decision or order of a District Collector passed otherwise than on appeal.'(underlining made by this Court for ease of reference)11. In the case on hand, impugned order has been marked to the writ petitioner as well as R3. A scanned reproduction of the impugned order is as follows:Page Nos.7/13 https://www.mhc.tn.gov.in/judis W.P.No.24443 of 2021Page Nos.8/13 https://www.mhc.tn.gov.in/judis W.P.No.24443 of 2021Page Nos.9/13 https://www.mhc.tn.gov.in/judis W.P.No.24443 of 202112. As already alluded to supra in the impugned order, Survey No.619/6 shall now be read as 619/16.13. Impugned order addressed to the writ petitioner as well as R3 makes it clear that a statutory appeal under Section 10 of said 1905 Act will certainly lie at the instance of the writ petitioner also. 14. The above means that the writ petitioner has efficacious and effective alternate remedy. This Court is conscious that alternate remedy is not an absolute Rule and it is a Rule of discretion. Alternate Remedy Rule is more in the nature of self-imposed restriction qua writ Courts. In the case on hand, we find that writ petitioner does not come in any of the exceptions to Alternate Remedy Rule i.e., any of the well established exceptions which are well entrenched in a jurisprudential landscape.15. The sequitur is, this Court now relegates the writ petitioner to alternate remedy of statutory appeal to R1 under Section 10 of said 1905 Act i.e., alternate remedy of appeal qua impugned order.Page Nos.10/13 https://www.mhc.tn.gov.in/judis W.P.No.24443 of 202116. If the writ petitioner chooses to file a statutory appeal to R1 under Section 10 of said 1905 Act, it is open to the writ petitioner to seek condonation of delay under sub-section (4) of Section 11 of said 1905 Act. It is also open to the writ petitioner to take recourse to Section 14 of the Limitation Act, 1963 as we find that the captioned WP has been filed in this Court on 10.11.2021 and it is being disposed today (25.03.2025) in and vide this order. 17. As regards statutory appeal, if any, we make it clear that we have not expressed any view or opinion one way or the other regarding encroachment. All questions are left open and all rights and contentions of writ petitioner as well as R3 are left open for being canvassed in the statutory appeal.18. Subject of course to condonation of delay, it is open to R1 to consider statutory appeal on its own merits and in accordance with law untrammelled by this order.Page Nos.11/13 https://www.mhc.tn.gov.in/judis W.P.No.24443 of 202119. Ergo, sequitur is, captioned WP is disposed of as closed relegating the writ petitioner to alternate remedy of statutory appeal under Section 10 of said 1905 Act. There shall be no order as to costs. (M.S.,J.) (K.G.T.,J.) 25.03.2025Index : Yes / NoNeutral Citation : Yes mmiP.S. If the writ petitioner seeks return of original impugned order that has been filed along with captioned WP, the same shall be returned by the Registry to the counsel on record for writ petitioner forthwith under due acknowledgement. To be noted, this is to enable the writ petitioner to resort to alternate remedy of statutory appeal under Section 10 of said 1905 Act.To1.The District Collector, Tiruppur, Tiruppur District.2.The Revenue Tahsildar, Uthukuli Taluk, Tiruppur District.Page Nos.12/13 https://www.mhc.tn.gov.in/judis W.P.No.24443 of 2021M.SUNDAR, J.,andK.GOVINDARAJAN THILAKAVADI, J.,mmi W.P.No.24443 of 2021 25.03.2025Page Nos.13/13

Find similar cases Start drafting free

This is the original judgment text as indexed from the source corpus. Always verify against the official court record before relying on it in a filing — you can do so on eCourts or the Supreme Court of India website. ← Search more judgments

More cases under Constitution of India