IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 02.09.2010 CORAM THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN Writ Petition No.7484 of 2010 & M.P.No.1 of 2010 R.Muthamil Veeran .. Petitioner Versus 1.The District Collector, Ariyalur District. 2.Revenue Divisional Officer, Office of Revenue Divisional Officer, Udyarpallayam & Taluk, Ariyalur District. 3.The Assistant Executive Engineer, Office of Assistant Executive Engineer, Near State Bank of India, Ariyalur & District. 4.The Block Development Officer, Block Development Office (Union Office), Sendurai, Sendurai Taluk, Ariyalur District. 5.The President (In charge) Palayakudi Panchayat, Palayakudi, Sendurai Taluk, Ariyalur District. .. Respondents Prayer:- This petition has been filed seeking for a Writ of Mandamus, to direct the respondents not to lay a road or construct a culvert across the canal or odai encroaching the petitioner land in S.F.No.143/3 – 2.26 cents or 0.91.5 Ars and in Sy.No.143/3 measuring an extent of 2.26 cents and in S.F.No.143/2C-28 cents out of 58 cents or 22.5 Ars & in S.F.No.143/5C-76 cents out of 153 cents or 0.61.5 totaling in all 1.04 Acres on directing the respondents to remove the Black taped road already laid in the above petitioner land on payment of compensation of Rs.3,00,000/-. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.V.Subbarayan For R1 to R3 : Mr.B.Srikanth Additional Government Pleader For R4 : Mr.P.Shanthirakkappan For R5 : Mr.P.Shunmugam O R D E R The petitioner has approached this Court stating that his lands comprised in S.F.No.143/3 measuring to an extent of 0.91.5 Ares, in S.F.No.143/2C measuring to an extent of 0.22.5 Ares and in S.F.No.143/5C measuring to an extent of 0.61.5 Ares were encroached upon without any proceedings under the Land Acquisition Act or getting permission or purchasing the same through private negotiation. 2. The petitioner contends that the respondents highhandedly laid the road and his property and now they are trying to construct a culvert. In this regard, the petitioner issued notice on 08.02.2010 and followed by another representation dated 04.03.2010. Since no action has been taken, the petitioner has come before this Court, by way of filing this Writ Petition. 3. Counter affidavits have been filed by the 1st respondent and 5th respondent separately. The 1st respondent stated that the petitioner was an Ex-President of Palayakudi Village in Sendurai Taluk, Ariyalur District. During the year 2000-2001, from the amounts allotted from the M.Ps.' constituency funds, repair works were taken up and tenders were called for for laying of a bitumen/thar road for Palayakudi to Savarikkadu for 2 Kilo meters. The Petitioner's wife Mrs.Sivamalai was awarded the said contract as she was successful tenderer for the said road work. The said road work was executed spending for more than Rs.25,00,000/-. It is contended that the road has been formed near the petitioner's land and also to the other Pattathars lands and they did not raise any objection at that time. It is contended that the oral consent to form the road from Palayakudi to Savarikkadu was obtained and more than 10 years have gone and it is not for the petitioner to contend that the road has been formed without his knowledge. 4. Mr.V.Subbarayan, learned counsel appearing for the petitioner submits that the petitioner was not aware of the fact that the road was laid on his property and he was under the impression that the road was laid in the "Savarikkadu Odai Poramboke". Subsequently, when the Village Administrative Officer gave a certificate that the road was laid on the petitioner's property, the petitioner issued https://hcservices.ecourts.gov.in/hcservices/ notice and made representation calling upon the authorities not to construct bridge/culvert connecting to the main road and to remove the black tapped road already laid and for compensation. The learned counsel further submits that when the road itself has been formed without the petitioner's consent there cannot be any culvert. Therefore, he seeks relief. 5. Mr.B.Srikanth, learned Additional Government Pleader appearing for the respondents 1 to 3, submits that the petitioner cannot maintain the Writ Petition as disputed question of facts are involved. Secondly, he submits that the road was laid by the petitioner's wife when the petitioner was the Ex-president of the said Panchayat. Having kept quiet for a decade, the petitioner wants to prevent putting up the culvert which is meant for public. Thirdly, he submits that there was a consent orally by the petitioner as well as the other pattathars when the road was laid during 2000- 2001. Therefore, the petitioner cannot now contend that the road was laid without his consent. 6. It is an admitted fact that the road was laid as early as on 2000-2001 and that the petitioner was the Ex-President of the Panchayat at that point of time and that his wife executed the contract and that the work is for the benefit of the public and that the road has been serving for a decade. The petitioner is not a layman and he was a president of the Village and the tender was executed by his wife. Therefore, the petitioner cannot now contend that he was under the impression that the road was laid in the Odai poramboke and not on the petitioner's land. A person who has been keeping quiet for more than 10 years cannot be heard now that the road laid on his property without his knowledge, especially, when his wife was the executor of the work. 7. Assuming that he was not aware that the road was laid on his property he should have raised objections at the earliest point of time that he failed to do it. Delay always defeats rights. It is a well settled position of law. This Writ Petition is filed seeking a Direction, prohibiting the authorities from putting up culverts. Prohibiting putting up culvert would be against public interest. 8. It is only for the public and effective use of road only, the culvert is constructed connecting the main road and the service road. Therefore, in the interests of public, the said sovereign exercise done by the State cannot be prevented. In fact, the petitioner and his family members would also be the beneficiaries along with others. Therefore, the prayer restraining the authorities from laying road or construct a culvert cannot be granted and the same is rejected. 9. As far as the respondents are concerned, the respondents are duty bound to act as per law and they cannot simply enter upon some body's property and lay a road contending that there was oral https://hcservices.ecourts.gov.in/hcservices/ consent. Originally right to property was enshrined as fundamental right and subsequently by virtue of amendment it was incorporated in Article 300 (A) of the Constitution of India. The Hon'ble Supreme Court recently in 2008 (4) SCC 649 (Vimala Ben Ajith Bhai Patel Vs. Ratsala Ben Ashok Bhai Patel) recognised right to property as "human right". When such is the position, the authorities should have followed the due process of law either by acquiring the property under Land Acquisition Act or purchased the property by private negotiation. The above said modes have not been followed by the respondents. Assuming that there was oral consent, it is always prudent especially the officials to get the consent by way of written document. In this case, no such written document/record is admittedly taken from the petitioner. The respondents failed to perform their duty. It has been held by the Hon'ble Supreme Court in Vimala Ben Ajith Bhai Patel Vs. Ratsala Ben Ashok Bhai Patel reported in 2008 (4) SCC 649 strict adherence of procedure to take away the right to property is to be followed. In this case, no adherence to law has been made, while laying road on the petitioner's property. 10. As contended by Mr.B.Srikanth, learned Additional Government Pleader appearing for the respondents 1 to 3, it is well settled position of law that disputed question of facts cannot be gone into under Article 226 of the Constitution of India as declared in M/s.New Okhla Industrial Development Authority Vs. Kendriya Karamchari Sahkari Grih Nirman Samiti reported in 2006 (9) SCC 524. In this case, there is no dispute with regard to the ownership of the petitioner's land. It is an admitted fact by the respondents that the road was laid on the petitioner's land. When there is no adherence to take away the petitioner's right to the property, even if there is a delay it would not defeat his right to claim compensation for the portion occupied by the Government. In the absence of any document to prove lawful possession of the property, the Government should be termed as an encroacher only. At the same time, this Court has to see the interest of the public also. Striking a fine balance, this Court declines the prayer for a direction not to lay road/construct culvert across the canal as prayed for and directs the authorities to conduct an enquiry and determine for compensation for the land on which the road has been laid. Though, the petitioner claimed the compensation for removing the road from the petitioner's property and to pay the compensation of Rs.3,00,000/- in this regard, this Court moulds the prayer and grants the above relief. The 1st respondent is hereby directed to conduct an enquiry regarding compensation payable to the petitioner and after affording opportunity to the petitioner, pay the amount. During the enquiry, the petitioner is at liberty to adduce evidence both oral as well as documentary evidence. The above said exercise should be done with in a period of sixteen (16) weeks from the date of receipt of a copy of this order. https://hcservices.ecourts.gov.in/hcservices/ With the above, the Writ Petition is disposed of. No costs. Consequently, connected Miscellaneous Petition is closed. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar smn To 1.The District Collector, Ariyalur District. 2.Revenue Divisional Officer, Office of Revenue Divisional Officer, Udyarpallayam & Taluk, Ariyalur District. 3.The Assistant Executive Engineer, Office of Assistant Executive Engineer, Near State Bank of India, Ariyalur & District. 4.The Block Development Officer, Block Development Office (Union Office), Sendurai, Sendurai Taluk, Ariyalur District. 5.The President (In charge) Palayakudi Panchayat, Palayakudi, Sendurai Taluk, Ariyalur District. + 1 cc to Mr. P. Gurunathan, Advocate Sr.65061 + 1 cc to Mr.V. Subharayan, ADvocate SR.65248 + 2 cc to the government Pleader SR.65391 & 65485 Writ Petition No.7484 of 2010 GG(CO) EU 27.09.2010. https://hcservices.ecourts.gov.in/hcservices/