IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:26.8.2008 CORAM; THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.NO.28801 OF 2007 and M.P.Nos.1 of 2007 and 1 of 2008 1.R.Palaniammal 2.M.Saraswathi ..Petitioners vs 1.The President Anandhampalayam Minor Panchayat Kariyagoundenvalasu Enjampalli, Modakurichi Erode District 2.The District Collector Erode District Erode-11 ..Respondents Writ Petition is filed under Article 226 of the Constitution of India for the issue of a writ of Mandamus forbearing the 1st respondent herein from in any way interfering with the petitioners' possession and enjoyment of the properties measuring an extent of seven and five cents respectively comprised in R.S.No.349/1 of Sellathapalayam, Elamathur Village, Erode Taluk which has been classified as ke;ij in the revenue records by considering their settled possession. for petitioners : Mr.N.Manokaran for respondents : Mr.M.Dhandapani (for R1) Mr.Edwin Prabhakar (for R2) https://hcservices.ecourts.gov.in/hcservices/ ORDER The petitioners admittedly are in possession of the land comprised in R.S.No.349/1 at Sellathapalayam, Elamathur A-Village to the extent 7 cents and 5 cents respectively. 2. The case of the petitioners is that they have been in possession of the said Manthai poromboke for the past 20 years and put up a construction exclusively using the portion only for the purpose of crazing the cattle belong to them. It is also stated that they have been paying B-memo charges to the revenue authorities. It is also the case of the petitioners that as per G.O.Ms.No.854 (Revenue Department) dated 30.12.2006, inasmuch as they have been in possession of the Government poromboke land for more than 10 years, they are entitled for the allotment of the said portion in their possession. Further, according to the petitioners, the first respondent Panchayat is taking steps to convert the rocky portion into that of a play ground for children. With the result, the possession of the petitioners is attempted to be disturbed and this has resulted in filing this writ petition to forbear the 1st respondent, President of the Panchayat from interfering with the petitioners' possession and enjoyment of the property. The writ petition is filed on the ground that the petitioners have acquired title by settled possession even though it is admitted that the land is classified as manthai poromboke. It is further submitted by the learned counsel for the petitioners that even if the manthai poromboke is to be converted into a playground, the same cannot be done by Panchayat. It is by revenue authority. The District Collector is also made as a party in these proceedings. 3. On the other hand, in the counter affidavit filed by the first respondent Panchayat it is stated that R.S.No.349/1 in Elumathur village for an extent of 0.42.5 hectares (1.05 acre) is manthaiveli poramboke vested with the Government and the entire area is rocky portion. It is also stated that neither the petitioners nor any other person can exclusively use the said portion as crazing field for their cattle. It is also the further case of the first respondent that in the said portion there is a pali in the midst of rocky portion and during the rainy season the polluted water is stagnated in the said pali and is likely to affect the families living in and around the said pali. It was in these circumstances taking into consideration the public interest, the first respondent Panchayat has taken a decision to convert the same into a play ground. The claim of the petitioners' that they have been in possession for more than 20 years is denied. It is also the case of the first respondent that G.O.Ms.No.854 dated https://hcservices.ecourts.gov.in/hcservices/ 30.12.2006 is not applicable to the petitioners and the petitioners are encroachers in the recent years and they have not been in possession for more than 10 cents. 4. On a reading of the entire records it is seen that even though the petitioners' claim that they have been paying `B-memo' charges to show their possession, the ultimate claim of the petitioners' is that they have been in continuous uninterrupted possession for more than the stipulated period and therefore they are entitled to possession. As it is by adverse possession, the same cannot be decided by filing writ petition under Article 226 of the Constitution of India. The said matter requires consideration and appreciation of evidence and facts and this Court has no jurisdiction under Article 226 of the Constitution of India to come to such a conclusion by exchange of affidavits. In view of the same, the writ petition fails.. 5. Accordingly, the Writ petition is dismissed, however, with the liberty to the petitioners to work out their remedy before the appropriate forum. As requested by the learned counsel for the petitioners, if the petitioners approach the competent forum within a period of three weeks from the date of receipt of the copy of the order. The competent Court shall decide the same on merits and in accordance with law including passing of any interim orders. It is also made clear that if within a period of three weeks granted by this Court, the petitioners fail either to move the competent Court or to get interim order from the competent court, it will be open to the respondents to take appropriate action for removal of the petitioners in the manner known to law after expiry of three weeks. 6. The order of interim stay granted by this Court stands vacated and the application in M.P.No.1/2007 is dismissed. Vacate stay petition in M.P.No.1/2008 stands allowed. No costs. sal Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1.The President Anandhampalayam Minor Panchayat Kariyagoundenvalasu Enjampalli, Modakurichi Erode District 2.The District Collector Erode District Erode-11 • 1 cc to Mr. N. Manokaran, Advocate SR No. 47888 • 1 cc to Mr. M. Dhandapani, Advocate SR No. 48159 W.P.NO.28801/2007 & M.P.Nos.1/2007 and 1/2008 NM(CO) SR/9.9.2008 https://hcservices.ecourts.gov.in/hcservices/