1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 16.06.2011 CORAM: THE HONOURABLE MR.JUSTICE B.RAJENDRAN Writ Petition (MD)No.5846 to 5852 of 2011 and MP(MD) Nos.1,1,1,1,1,1,1 of 2011 P.Pandiyan ... Petitioner in WP(MD) No.5846/11 S.Kumar ... Petitioner in WP(MD) No.5847/11 S.Ramachandran ... Petitioner in WP(MD) No.5848/11 N.Balakrishnan ... Petitioner in WP(MD) No.5849/11 K.Anthreya ... Petitioner in WP(MD) No.5850/11 R.Kasi Rajan ... Petitioner in WP(MD) No.5851/11 M.Sermathurai ... Petitioner in WP(MD) No.5852/11 Vs. 1.The District Collector, Tuticorin. 2.The Executive Officer, Vilathikulam Town Panchayat, Selection Grade, Tuticorin District. 3.Dr.Jeyaraman ... Respondents in all Wps. Prayer in all WPs: Writ Petitions are filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Mandamus, forbearing the respondents from vacating and demolishing the petitioners' shop in Shop No.1, 10, 4, 11, 13, 12, 5 situated in Survey No.548, South Car Street, Vilathikulam, Tuticorin District. For Petitioner : Mr.N.Sankar Ganesh For 1st Respondent : Mr.M.Govindan, Special Government Pleader. For 2nd Respondent : Ms.S.Bharathi, Government Advocate. COMMON ORDER The petitioners would contend that they are running the vegetable stall in the temporary thatched construction in the land belonging to the second respondent for many years. According to them, a lease has been granted upto 31.03.2012 and that they are regularly paying the rent along with licence fee and other local tax. According to them, there are no encroachments. The third respondent whose property is situated on the backside of the petitioners shops in order to evict them had filed a suit in O.S.No.1065/1999 for himself and on behalf of the people of Vilathikulam in a representative capacity to demolish the vegetable stalls and evict them from the suit schedule property by declaring the lease as illegal. The suit was originally allowed in part by declaring that the lease for a period of three years is illegal but dismissed the suit to the claim of eviction of stall owners. As against the said order, the third respondent preferred an appeal in A.S.No.47 of 1989 before the Sub Court, Tuticorin which was allowed on 22.04.1991 decreeing the suit in toto including possession. Against which the second respondent preferred second appeal before this Court in S.A.No.1717 of 1993 and the same was also dismissed on 20.01.2007. https://hcservices.ecourts.gov.in/hcservices/ 2 2.The grievance of the petitioners is that they were not aware of the civil proceedings and the petitioners who are the alleged tenants were not impleaded as parties in the suit and therefore, they are not bound by the decree. Subsequently, the third respondent after the dismissal of the second appeal has filed execution petition in E.P.No.7 of 2009 and the execution petition was allowed on 27.04.2011 and the third respondent with the help of that order is forcing the second respondent to evict them by demolishing the vegetable stalls. Hence, they have come forward with the present writ petitions on the ground that the first respondent is fully empowered to lease out its property and because of the lease, they are earning money and in order to safeguard the interest of an individual, they are now seeking to throw away the petitioners. Further, as per Rule 8, lease of road sides and street margins vests in a panchayat and no lease shall be granted ordinarily for a period exceeding three years at a time and the approval of the Collector shall not be necessary for a renewal of a lease granted. 3.Further, they would contend that since they were not made as party to the civil suit under the guise of order of the civil court, their possession should not be disturbed for which they have made a representation on 30.05.2011 to the first and second respondents to safeguard their possession and that they are not encroachers. 4.When the matter was posted for admission, this Court posed a specific question to the petitioners that if really they were conducting business for the past 20 years as they claimed in the writ petitions, were they not aware of the civil court proceedings for which, there is no specific answer. They would mainly contend that they were not made as parties to the civil suit. But even in the affidavit they have categorically stated that the third respondent property is situated adjoining their shops which are now in the road. Even according to them, these are all temporary construction put up by them adjoining the third respondent's property. 5.The grievance of the petitioners is that the third respondent is trying to evict them. But the third respondent has approached the Court from 1979, it is not a pure and simple ordinary suit. It is submitted that the suit was filed in the representative capacity and publication have also been ordered under Order 1 Rule 8 anybody who is interested in the case, including the petitioners could have impleaded themselves as parties and the subject matter in the suit as per the orders, is very clear that the lease granted to these persons for conducting business in the road was questioned. It is specifically questioned as regards eligibility or legality in granting of lease for a period of three years without the approval of the Collector. Originally the suit was decreed partly cancelling the lease granted and in the first appeal, the entire appeal was allowed and the suit was decreed in toto including granting of possession. Against which, the second respondent has filed second appeal and ultimately that was also dismissed and after that the Execution petition was filed even as early as in the year 2009. The execution petition was contested for two years and ultimately the execution petition was also allowed on 27.04.2011. 6.In fact, the panchayat had also raised a point of non joinder of parties even in the original suit itself, but it was ultimately rejected in the appeal suit and ultimately second appeal was also dismissed. The petitioners have not taken any steps to implead them https://hcservices.ecourts.gov.in/hcservices/ 3 either in the original suit or in the appeal suit and conveniently, the petitioners have come forward with these writ petitions at this belated stage. 7.Learned counsel for the petitioners fairly submitted that they have already filed application under 47 to thwart the decree passed by the civil court, it is not open to the petitioners to interfere with the decree of the civil Court by filing these writ petitions under Article 226 of the Constitution. 8.Literally, the prayer in the writ petitions is only to set aside the decree of a civil court, when there is a valid decree of a civil court, if anybody is aggrieved, he has to challenge the same in the manner known to law. But unfortunately merely because the name of the petitioners are not in the suit, they cannot claim any independent right. Further, the petitioners themselves claim the right only under the second respondent panchayat. According to them, the panchayat is the land lord and the panchayat is a party to the suit which contested upto second appeal level and also in the execution petition. So, whatever right, they claim can be only under the land lord. Inasmuch as the very authority which according to the petitioners is the landlord who is a party to the suit and the suit itself is questioning the legality of the lease granted to the petitioners and the possession, the petitioners cannot now de horse the decree claim any remedy by filing these writ petitions. Therefore, the decree passed by the Civil Court is binding on the petitioners who claim right only under the panchayat. Under these circumstances, the writ petition cannot be entertained. 9.Accordingly, the writ petitions are dismissed. No costs. Consequently, connected miscellaneous petitions are closed. Sd/- Assistant Registrar (CO) /True copy/ Sub Assistant Registrar To 1.The District Collector, Tuticorin. 2.The Executive Officer, Vilathikulam Town Panchayat, Selection Grade, Tuticorin District. +CC TO THE SPECIAL GOVERNMENT PLEADER, SR.18951 +1CC TO MR.N.SANKAR GANESH, ADVOCATE SR.18741 Sms SR : 04.07.2011 : 3p/5c Writ Petition (MD)No.5846 to 5852 of 2011 & MP(MD) Nos.1,1,1,1,1,1,1 of 2011 16.06.2011 https://hcservices.ecourts.gov.in/hcservices/