IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 22.07.2010
CORAM
THE HONOURABLE MR.JUSTICE D. HARIPARANTHAMAN
W.P. No.14377 of 2010
R. Kavithamani ... Petitioner
-vs-
1. The Executive Officer,
Karumandichellipalayam Town Panchayat,
Karumandichellipalayam,
Perundurai Taluk, Erode District
2. The Chairman of Town Panchayat,
Karumandichellipalayam Town Panchayat,
Karumandichellipalayam,
Perundurai Taluk, Erode District
3. The Inspector of Panchayat/
The District Collector,
Erode District, Erode ... Respondents
Prayer: Petition is filed to issue a writ of mandamus forbearing the respondents herein from initiating any action to construct a community hall in the petitioner's private property measuring an extent of 2178 sq.ft. Comprised in Natham R.S. No.942/2 corresponding to old S.F. No.791B Karukkampalayam, Karumandichellipalayam, Perundurai Taluk, Erode District in violation of Articles 21 and 300 A of the Constitution of India by considering the representations dated 18.03.2009, 01.06.2009, 02.06.2009 and 02.07.2010.
For Petitioner : Mr. N. Manokaran
For Respondents : Mr. M. Dhandapani,
Spl.G.P. for R1 and R2
Mrs. Lita Srinivasan,
Government Advocate for R3
O R D E R
On 12.10.1964 one Muthappan, Ex-service man was granted HSD patta in Karumandchellipalayam in Erode District for 2178 sq.ft. in S.F.No.791/B. The Survey No.791/B contains a very large extent and this 2178 sq.ft. is a small portion in the said Survey No.791/B. On 26.08.1983, the said Muthappan’s son Chenniappan sold the said land to the petitioner’s father by way of a sale deed registered on the file of the Sub Registrar, Perundurai.
2. In the said sale deed, it is clearly mentioned that there was a sub division in new Survey No.812/2 representing 2178 sq.ft. That is while Survey No.791/B contained a large extent of land, Survey No.812/2 measuring 2178 sq.ft. is a small portion sub divided in the larger portion. While so, one Karuppannan, neighbour of the petitioner, filed O.S. No.475 of 1984 before the District Munsif Court, Erode praying for permanent injunction restraining the petitioner’s father from interfering with his possession and enjoyment of the property in Survey No.791/B. The District Munsif Court dismissed the suit on 31.07.1987. Later, Karuppannan executed a sale deed on 10.08.1987 selling 869 1/2 sq.ft. in new Survey No.812/1 to Chinnasamy.
3. It is stated that Chinnasamy had also filed a suit in O.S. No.68 of 1997 against the petitioner’s father before the District Munsif Court, Perundurai. It is not known what the prayer was. However, the suit was dismissed for default. While so, the petitioner’s father filed O.S. No.19 of 2008 against Kolandasamy, who is the son of Karupannan who filed O.S. No.475 of 1984. The prayer in O.S. No.19 of 2008 before the District Munsif Court, Perundurai is for permanent injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the property by the petitioner in Survey No.791/B and new Survey No.942/2 at Karukkampalayam.
4. Here again the Survey No.812/02 was not mentioned in the description of the property in the suit and on the other hand 791/B and 942/2 are alone mentioned.
5. It is stated that the petitioner seems to have obtained interim injunction in his favour in I.A. No.70 of 2008 in O.S. No.19 of 2008. The interim injunction is also made absolute on 11.04.2008.
The appeal preferred by Kolandasamy against the said order before the Principal Sub Judge, Erode was also dismissed on 19.01.2009.
6. While so, the first respondent issued a notice dated 17.03.2009 stating that the first respondent proposed to build a community hall in the poromboke land at new Survey No.942/2. The first respondent also started to proceed with the construction. Hence, the petitioner filed the present writ petition seeking direction to forbear the respondents from initiating any action to construct a community hall in the petitioner’s private property measuring an extent of 2178 sq.ft. comprised in 942/2 corresponding to old S.F. No.791/B Karukkampalayam, Karumandichellipalayam, Perundurai Taluk, Erode District.
7. Notice of motion was ordered and interim injunction was also granted. The first respondent filed counter affidavit and also filed the petition in M.P. No.2 of 2010 in W.P. 14377 of 2010 to vacate the interim order already granted on 07.07.2010.
8. Heard Mr. N. Manokaran, learned counsel appearing for the petitioner and Mr. M. Dhandapani, learned Special Government Pleader for R1 and R2 and Mrs. Lita Srinivasan, learned Government Advocate for R3.
9. Learned counsel appearing for the petitioner states that the property was given by way of gift deed by her father in the document dated 06.02.2008 registered in the office of the Sub Registrar, Perundurai. The gift deed is based on the sale deed dated 26.08.1983 referred to above. While the sale deed refers to Survey No.812/2, the gift deed refers to both new Survey No.812/1 and 812/2.
10. However, the learned counsel appearing for the petitioner submits that the first respondent attempts to build community hall in the land that was purchased by the father of the petitioner in the sale deed dated 26.08.1983 that was conveyed to her by way of gift deed dated 06.02.2008 referred to above. Therefore, he submits that the petitioner is entitled to seek a direction to forbear the respondents from interfering with the possession of his property.
11. On the other hand, the learned Government Pleader submits that the Survey No.812/1 is Government Poromboke land as per the revenue records. He has produced the Adangal register wherein it is mentioned that Survey No.812/1 is part of the larger area in new Survey No.942/2 in Natham, Karukkampalayam, Perundurai Taluk. New Survey No.942/2 takes in the old Survey No.791/B. The land in Survey No.812/1 was classified as Government Poromboke. According to him, the first respondent passed a resolution on 31.03.2000 to build a community hall in the said place. The first respondent has got approval from the District Collector to build community hall at new Survey No.942/2. He further states that the work order was also issued by the first respondent on 10.06.2010 and the construction was in progress. In view of the interim order, the construction was stopped. He further states that the first respondent does not interfere in the land of the petitioner in Survey No.812/2 that is referred to in the sale deed dated 26.06.1983. The petitioner’s father, while executing the gift deed, could not convey land in the gift deed dated 06.02.2008, the land in Survey No.812/2 as well as in Survey No.812/1.
12. Prima facie, I am of the view that the petitioner’s father could not covey the land in Survey No.812/1 which is classified in the Adangal as Government Poromboke land (Sarkar poromboke). Since the Government Pleader states that the construction is confined to the old Survey No.812/1 in the new Survey No.942/2, the petitioner cannot have any grievance. Admittedly, the new Survey No.942/2 comprised of a very large area and contains in total 42 sub divisions and one of the sub divisions was old Survey No.812/2.
13. In view of the submission made by the learned Government Pleader that the construction confines only to the old Survey No.812/1 and also the petitioner has no objection for construction in 812/1, there is no merit in the writ petition. Still if the petitioner feels that the respondents are putting construction in old Survey No.812/2 that was purchased by her from the sale deed dated 02.06.1983, the petitioner could very well agitate before the competent civil court.
14. As held above, the petitioner has no title over S.No.812/1 and she owns land only in S.No.812/2. Still she makes a tall claims that her constitutional right under Article 21 and 300-A is violated to maintain the writ petition. There is an unfortunate trend to invoke Article 226 in all the land disputes, instead of approaching the competent civil court. The prayer in this writ petition is nothing but the prayer for permanent injunction that could be made before the civil court. I am of the considered view, the writ petition is not maintainable as there exists an effective alternate remedy. Hence, the writ petition fails and the same is dismissed. No costs. Consequently, connected M.Ps are closed.
vga
To
1. The Executive Officer,
Karumandichellipalayam Town Panchayat,
Karumandichellipalayam,
Perundurai Taluk, Erode District
2. The Chairman of Town Panchayat,
Karumandichellipalayam Town Panchayat,
Karumandichellipalayam,
Perundurai Taluk, Erode District
3. The Inspector of Panchayat/
The District Collector,
Erode District,
Erode