IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25-10-2010 CORAM : THE HONOURABLE MR. JUSTICE B. RAJENDRAN W.P. No. 5670 of 2010 and M.P. Nos. 1 and 2 of 2010 S.K. Kannan .. Petitioner Versus 1. The District Collector Nagapattinam District 2. The Divisional Engineer Highways Department Nagapattinam .. Respondents Petition filed under Article 226 of The Constitution of India praying for a Writ of Certiorari calling for the records of the first respondent in his Proceedings Na.Ka.No.29956/u002/2009 dated 02.01.2010 and quash the same. For Petitioner : Mr. S. Sounthar For Respondent : Mr. R. Murali Government Advocate ORDER By consent of counsel for both sides, the writ petition itself is taken up for final disposal. 2. The Petitioner claims right over the property to an extent of 2.56 acres of punja land in T.S. No. 513/1 and 0.25 cents in T.S.No. 513/2 in Block No.16, Ward No.4, Pappanam Chetty Village, Nagapattinam. According to the petitioner, the said property is his ancestral property, which was originally purchased by Sambosankaran Chettiar by a registered sale deed dated 05.01.1921 from Singaravel Chettiar and others. From the date of such purchase, Sambosankaran Chettiar was in peaceful possession and enjoyment of the said property. After his death, Petitioner's father Kanagasabai inherited the property. On 12.12.1927, there was a family partition in the family in which the said property was allotted to the share of the petitioner's father. Now, the petitioner, his brother Arunachalam, Srinivasan and his cousin brothers Packirisamy and Shankar Raj are in possession and enjoyment of the said property. While so, during September 2009, the subordinate of the second respondent attempted to dispossess the petitioner on the guise of putting up a building in the said land. Under those circumstance, the petitioner has issued a notice dated 03.10.2009 to the respondents as contemplated under https://hcservices.ecourts.gov.in/hcservices/ Section 80 of CPC and inspite of the said notice, the respondents attempted to interfere with their possession, therefore, O.S.No. 271 of 2009 was filed by the petitioner before the District Munsif Court, Nagapattinam for a bare injunction. In that suit, the respondents have also filed their written statement. The civil Court has not granted any interim injunction in favour of the petitioner and it was dismissed. In the meantime, for the notice issued by the petitioner under Section 80 CPC, the respondents have issued a notice to the petitioner calling upon him to appear for an enquiry. Accordingly, the petitioner also appeared before the first respondent. Thereafter, the first respondent passed the impugned order dated 02.01.2010 rejecting the claim of the petitioner to assert his right over the said property. Challenging the said order dated 02.01.2010 of the first respondent, the present writ petition has been filed. 3. The second respondent has filed a Counter Affidavit, interalia praying to vacate the interim order granted in this writ petition. In the said petition, it was contended that on receipt of the notice issued by the petitioner, the respondents have issued a notice calling upon him to appear before the first respondents for an enquiry and only after an enquiry, the order dated 02.01.2010 has been passed by the first respondent. Even in the notice dated 03.10.2009 issued by the petitioner, the petitioner only requested to issue 'B' Memo if there is no encroachment made by him. The property in question is a Government poromboke land and that the said land is required for public purpose and the second respondent has proposed to raise an administrative building for the District level in that land. In fact, the local body namely the Council of Nagapattinam Municipality has also passed a resolution to transfer the said land to and in favour of the second respondent for the purpose of putting up an administrative building. Inasmuch as the petitioner has filed a suit before the civil court in which the interim application filed by him for injunction was also dismissed and that the petitioner has also not produced any documentary evidence to prove his ownership over the land, the impugned order passed by the first respondent is valid. Even in the enquiry, sufficient opportunity was given to the petitioner and he has also participated but not produced any documents to prove his ownership over the land. As the impugned order was passed by the first respondent only pursuant to the notice issued by the petitioner under Section 80 of CPC and after conducting an enquiry, this writ petition has been filed only to stultify the legal steps initiated by the respondents and prayed for dismissal of the writ petition. 4. Heard both sides. The impugned order has been passed by the first respondent, even as admitted by the petitioner, only after conducting an enquiry. The impugned order came to be passed based on the notice dated 03.10.2009 issued by the petitioner under Section 80 CPC as a pre-suit notice. In the said notice dated 03.10.2009, in the last paragraph, the petitioner himself has stated that "if there is any encroachment in the said land, then necessary 'B' Memo and the records relating to the same be furnished to my client." It is also seen from the records that the petitioner has not furnished any documents, either before the https://hcservices.ecourts.gov.in/hcservices/ respondents or before the Civil Court, to establish that he is the owner of the property. In any event, a suit was filed by the petitioner for bare injunction before the competent civil court and the same is pending. In so far interim injunction sought for by the petitioner is concerned, the Civil Court dismissed the same. It is now submitted by the learned Government Advocate that as against the dismissal of the application for interim injunction, the petitioner has filed a Civil Miscellaneous Appeal and the same is pending before the appellate Court. 5. Before passing the impugned order, the first respondent afforded sufficient opportunity to the petitioner to putforth his case. In the impugned order, it is categorically stated that the petitioner is not the owner of the subject matter of the land and that it is a government poromboke land, therefore, they have got every right to put up a construction. This contention of the respondents is not specifically disputed by the petitioner by producing any documents to the contrary. Merely because a civil suit filed by the petitioner, that too for a bare injunction and the said suit is pending, that does not prohibit the respondents from proceeding further in the matter. The action initiated by the respondents is not suomotu but it was only on the basis of a notice sent by the petitioner through his advocate under Section 80 CPC. In any event, I do not find any illegality or infirmity in the impugned order passed by the first respondent warranting interference. There are no merits in the writ petition and the writ petition is liable to be dismissed. 6. Accordingly, the writ petition is dismissed without expressing any opinion on merits of the pending case. No costs. Consequently, connected miscellaneous petitions are closed. Sd/ Asst Registrar /True Copy/ Sub Asst Registrar rsh To 1. The District Collector Nagapattinam District 2. The Divisional Engineer Highways Department Nagapattinam https://hcservices.ecourts.gov.in/hcservices/ +1 CC to Mr.S.Sounthar, Advocate Sr.No.77489 +1 CC to Government Pleader Sr.No.76903 (CO-SR) W.P. No. 5670 of 2010 25.10.2010 https://hcservices.ecourts.gov.in/hcservices/