IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.9.2011 CORAM: THE HONOURABLE MR.JUSTICE V.DHANAPALAN W.P.No.19708 of 2011 & M.P.No.1 of 2011 R.Shanmugam .. Petitioner Vs. The Commissioner, Villiyanur Commune, Villiyanur, Pondicherry. .. Respondent Writ Petition under Article 226 of the Constitution of India, praying for issuance of a Writ of Mandamus, to forbear the respondent, its men, agents, subordinates, servants, from interfering with the peaceful possession and occupation of the petitioner in Plot Nos.1 and 2, situate in R.S.No.171/6, Patta No.373, Villiyanur, Pondicherry, except otherwise in accordance with law. For petitioner : Mr.V.Lakshminarayanan For respondent: Mr.Harin, Addl.G.P. (Pondicherry) ORDER Heard Mr.V.Lakshminarayanan, learned counsel for the petitioner and Mr.Harin, learned Additional Government Pleader appearing for the respondent. 2. The petitioner has come up with a prayer to forbear the respondent, its men, agents, subordinates, servants, from interfering with the peaceful possession and occupation of the petitioner in Plot Nos.1 and 2, situate in R.S.No.171/6, Patta No.373, Villiyanur, Pondicherry, except otherwise in accordance with law. 3. The case of the petitioner is as follows: (a) The petitioner is the owner of the property situated in R.S.No.171/6, Catasdar No.404, Patta No.373, Villiyanur Commune as Plot Nos.1 and 2. His property is abutting the National Highway. He purchased these plots in his name under the registered sale deed in Doc.No.1080/92 on the file of the office of the Sub-Registrar, Villiyanur. While so, there was an attempt by the respondent to interfere with the peaceful occupation of the property. Some persons claiming to be the servants of the respondent-Commune sought to encroach upon the property. The petitioner immediately objected to such interference. The https://hcservices.ecourts.gov.in/hcservices/ respondent openly proclaimed that they are going to lay a road on the part of the property and also dig a pit for laying of the drainage pipes. (b) The lay out was formed after securing permission of the Panchayat. Prior to such permission, the survey department was also requisitioned to identify the plots by laying of a survey stone. They have also done their part of the work. The respondent attempted to remove the survey stone and to suit their convenience, attempted to re-fix nearly four feet within the actual boundary and thereby, the petitioner is to lose 4 feet by 50 feet on the western side of the property and 3-1/2 feet on the southern side of the land. (c) The owner of the property in S.No.167 encroached upon the road and instead of removing him, the respondent has found a strange formula of adjusting the road to a private property. His possession of the property from 1992 is under threat. The basic courtesy of hearing the parties also found no relevance with the respondent. On 20.8.2011, the respondent came to the premises with JCP and sought to remove the fence. Immediately, the petitioner resisted. As there was little time to seek the reason, there was no mood to hear the petitioner and hence, having no other remedy, the petitioner has approached this Court by filing the present Writ Petition on the following grounds: (i) The respondent cannot interfere with private holdings expect otherwise in accordance with law. (ii) The respondent cannot remove or adjust the boundary stones fixed by the Department of Survey and boundaries. Such an act of the respondent amounts to penal offence. (iii) The respondent cannot seek to convert a private property to a public one without payment of just and fair compensation. (iv) It is the duty of the respondent to ascertain where the encroachment lies. When the extent enjoyed by the petitioner is in line with the sale deed, it is for the respondent to remove the encroachment on the western side of the road. Without following any sane procedure to seek removal of the fence and attempting to encroach upon the private holding is nothing short of trespass. 4. The respondent filed counter affidavit inter-alia stating as follows: (i) The petitioner's property is abutted on the north by the National Highway NH 45A and on the west and south, it is abutted by the respondent-commune Panchayat road. When NH 45A was laid, the same was elevated to about 7 feet from the ground level and therefore, plots and other areas abutting the said Highway has relatively become a low lying area. The commune panchayat road is linking SMV Puram (west) and Cauvery Nagar. The area surrounding the commune panchayat road is relatively https://hcservices.ecourts.gov.in/hcservices/ very low and gets easily flooded even when there is intermittent rains. The drainage has also become an issue on account of the difference of the height. During heavy rains, the road gets totally submerged causing untold hardship and inconvenience to the public at large. In response to the pressing demands of the local people, the respondent commune panchayat submitted proposal to Town and Country Planning Department seeking grant- in-aid to take up the work of construction of retaining wall and providing concrete pavement and drainage facility to the Cauvery Nagar to SMV Puram link road at Villianur, so as to raise the road level and construct drains before the onset of the rainy season. (ii) The grant-in-aid of Rs.8,81,116/- for the said work was released by the Government of Puducherry in February 2011 and tender was also called for and bid was also finalized in the same month. The work could not be awarded immediately in view of the declaration of the General Elections to the Legislative Assembly, when the model code of conduct came into effect. (iii) The work was awarded to the lowest bidder on 28.7.2011. It was while executing the said project, the petitioner, claiming to be the owner of the vacant Plot Nos.1 and 2 in R.S.No.171/6 objected to the preliminary preparatory works. It appears that the local people were totally upset with the attempt of the petitioner to stall the public work. (iv) The respondent received a complaint-cum-representation dated 9.8.2011 from SVM (West) Residents Welfare Association, wherein, it was pointed out by them that the petitioner is trying to encroach the public road abutting to his plots and preventing the project work. It was at the same time, the petitioner also requested to commence the work after demarcating the road portion. (v) Therefore, on 18.8.2011, the respondent, with the help of the Surveyor of the Villianur Taluk Office, demarcated the road portion in the presence of the petitioner. After such demarcation, the work was commenced on the same day at 3 p.m. The petitioner once again raised objections and requested for re-survey and demarcation. His request was acceded to and the road portion was also once again demarcated at 5 p.m. to the petitioner's satisfaction. It was after this, the work was commenced on 19.8.2011. Even thereafter, the petitioner has been trying to prevent the respondent's office and agents from doing any work on the road portion abutting his plots. The entire local people and residents are upset against the petitioner's illegal action and have tried to solve the matter. It is in this background, that the petitioner has come up before this Court by suppressing the above facts. (vi) The allegation of the petitioner that the road and drainage work is being carried out by encroaching into some https://hcservices.ecourts.gov.in/hcservices/ portion of his plots, is denied as false and the same has been made solely for the purpose of the case. The respondent has taken measurements with the help of the Revenue Department and demarcated the road portion from the existing survey stones. The petitioner is aware of the same and it is therefore he has now falsely alleged about removal of the survey stones etc. (vii) The total extent shown in the petitioner's title deed would not have been actually available on ground. It is the duty of the petitioner to have properly measured the land and purchased the property. The petitioner cannot make good the same by encroaching upon the public road and falsely claim the same to be his property. (viii) It is specifically denied that the respondent is trying to encroach upon his private land for the purpose of executing the present project. In fact, it is the petitioner who is actually trying to encroach into a public road. Since the relief in the nature of a writ is purely discretionary and equitable, the petitioner is not entitled to seek any relief, as he has come with unclean hands. 5. To the above counter affidavit, the petitioner has filed reply affidavit/rejoinder to the following effect: The allegation that the petitioner's property adjoins on the north and south by respondent commune panchayat, respectively, is false. The petitioner's property is bounded by north by the NH45, the west and south by new street, left by the petitioner's vendor Venkatasamy for the convenient of the other plot holders. As per the petitioner's knowledge, till date, the petitioner's vendor has not handed over the private street to the respondent. The residents of the plot owners alone have right to utilise the aforesaid private lane. 5.1. It is not correct that the property was demarcated in the presence of the petitioner. The respondent has the obligation and duty to prove the same with adequate documents. The petitioner has not received summons from the respondent on the Revenue Department before the alleged survey. The property had not been surveyed in the presence of the petitioner at any point of time. 5.2. It is absolutely false and ridiculous to state that the petitioner has encroached the public road. The entire lay out situated in R.S.No.171/6 at Villianur originally belonged to one Venkatasamy. He divided the properties into several plots and the plot bearing Nos.1 and 2 had been sold to the petitioner on 18.5.1992. The total extent purchased by the petitioner is 2500 Sq.Ft. The western and southern boundaries of the petitioner's property are shown as new way and northern side is bounded by NH 45. From the date of purchase, the petitioner is in possession and enjoyment of the entire extent of the property. https://hcservices.ecourts.gov.in/hcservices/ 5.3. The survey stones have been illegally removed by the respondent and the encroachers. They had made constructions in the petitioner's property to the extent of 315 Sq.Ft. When the new way belongs to the lay out holders, the allegation of the respondent is entirely false. The respondent is attempting to construct a retaining wall in the petitioner's property, which is illegal and unconstitutional. The petitioner is willing to survey by any superior or competent authority of the Revenue Department after issuing prior notice. The owner of the property in S.No.167 had encroached upon the road, had not been denied or controverted by the respondent in their counter affidavit. It is an admission by non-traverse. The petitioner is not aware why the respondent has been supporting the encroachers as against the patta holders. 6. Learned counsel for the petitioner submits that the only grievance of the petitioner based on the pleadings as well as materials is that the proper survey of the lands in question has to be done by an independent and competent surveyor of the Revenue Department in the presence of the petitioner and other persons of the neighbouring plots and those interested and if such survey is done, the grievance of the petitioner as well as the respondent would be redressed. The execution of the project will not be delayed if the required survey is conducted immediately. 7. The learned Additional Government Pleader (Pondicherry) appearing for the respondents, on instructions, based on the pleadings of the respondent in the counter affidavit, contended that it is for the purpose of laying a road in an elevated position connecting the National Highway, the lands are required and it is to be done after proper sanction from the Government of Pondicherry and there was an attempt to survey the lands in the presence of the petitioner, and even then, the petitioner continued to object because his patta land is not properly demarcated, and therefore, the execution of the work is commenced without proper demarcation and hence, the execution of the work cannot be delayed further. The respondent is ready to survey the lands, if this Court is inclined to direct an independent surveyor to survey the lands. 8. It is not in dispute that the petitioner is the owner of the lands in R.S.No.171/6, patta No.373, Villianur, Pondicherry in respect of Plot Nos.1 and 2 and he has purchased the same from one Venkatasamy by registered document No.1080 of 1992 to an extent of 2500 Sq.Ft. on 18.5.1992. He is in occupation of the lands. However, it appears from the pleadings that there was a person in S.No.167 who is also having a grievance and the respondent alleged that some persons have encroached some portion of the lands near the road in question. The only apprehension by the petitioner is that there is an attempt to https://hcservices.ecourts.gov.in/hcservices/ encroach upon his patta lands without proper demarcation of the property in question, including the road work to be commenced by the respondent. 9. Though the stand of the parties to these writ proceedings are rivalry in nature and contested, ultimately, learned counsel on either side submitted that the survey of the lands by individual surveyor, is to be conducted immediately and that will facilitate the execution of the road project for public purpose and redressal of the petitioner's grievance. 10. In the above stated position, looking into the grievance of the parties to these writ proceedings, the respondent herein is directed to survey the land(s) in question by an independent surveyor of the Revenue Department in the presence of all the parties concerned who are having interest over the land(s) in question and such survey is to be conducted with proper measurements, within a period of two weeks from the date of receipt of a copy of this order, with proper notice to every stake-holders of the land(s) in question, including the petitioner and thereafter, the demarcation of the land(s) is to be done and making it clear that the survey of the patta land(s) of the petitioner as well as the land(s) needed for execution of the road project is to be done with proper measurements. On completion of such exercise and on demarcation of the property, the respondent is at liberty to proceed further in executing the public project in accordance with law. 11. With the above observations, the Writ Petition is disposed of. No costs. The Miscellaneous Petition is closed. 12. In view of the urgency involved in this case, the learned counsel for the parties are directed to inform their respective parties about this order forthwith. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar cs https://hcservices.ecourts.gov.in/hcservices/ To The Commissioner, Villiyanur Commune, Villiyanur, Pondicherry. +1 cc to Senior Government Pleader,SR.P.P.for Pondicherry SR No.61039. +1 cc to M/s. V.RAghavachari, Advocate SR 61505. W.P.No.19708 of 2011 SAI(CO) dd 04.11.2011. https://hcservices.ecourts.gov.in/hcservices/