Mathavan Pillai .K (Died) vs The Secretary to Government

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W.P. (MD) No.26554/2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on Pronounced on
24.09.2026 16.10.2026
CORAM
THE HONOURABLE MR. JUSTICE M.DHANDAPANI
AND
THE HONOURABLE MR. JUSTICE N.DILIPKUMAR
W.P. (MD) NO. 26554 OF 2023
CNR:{HCMD011229912023}
AND
W.M.P. (MD) NOS.22828, 22830 & 25891 OF 2023
K.Mathavan Pillai (Decd.)
1. Nagammal
2. Sreevalli
3. Pradeep .. Petitioners
(P-1 to P-3 substituted vide order
Of Court dated 24.9.2026 in WMP
(MD) No.25891/2023)
- Vs -
1. The Secretary to Government
Revenue Department
Government of Tamil Nadu, Chennai.
2. The Commissioner of Land Administration
Chepauk, Chennai 600 005.
3. The Commissioner of Revenue
Administration & Disaster Management
Chepauk, Chennai 600 005.
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W.P. (MD) No.26554/2023
4. The Commissioner of Survey & Settlement
Chepauk, Chennai 600 005.
5. The Commissioner of Land Reforms
Chepauk, Chennai 600 005.
6. The District Collector
Kanyakumari District.
7. The District Revenue Officer
Nagercoil, Kanyakumari District.
8. The Revenue Divisional Officer
Padmanabhapuram, Thakkalai
Kanyakumari District.
9. The Tahsildar
Kalkulam Taluk
Kanyakumari District.
10.The Commissioner
Padmanabhapuram Municipality
Thakkalai, Kanyakumari District. .. Respondents
Writ Petition filed under Article 226 of the Constitution of India praying
this Court to issue a writ of Declaration declaring that Revenue Standing Order 26
as amended by the Government Order in G.O. (1D) No.568, Revenue (Ni.Mu.3.3)
Department dated 23.10.2000 approving the proposal in Roc. No.24348/98 Q
dated 01.07.1998 addressed to the first respondent relying upon B.P. Prem 1039
(E) dated 26.07.1966 as ultra vires the Constitution of India and consequentially
strike down the same.
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W.P. (MD) No.26554/2023
For Petitioners : Mr. N.Gurusamy
For Respondents : Mr. Abdul Hameed, AAG
Assisted by Mr.G.Mohan Kumar,
AGP for RR-1 to 9
No Appearance for R-10
ORDER
M.DHANDAPANI, J.
Assailing RSO 26 (15) as amended by G.O. (1D) No.568, Revenue
(Ni.Mu.3.3) Department dated 23.10.2000 approving the proposal in Roc.
No.24348/98Q dated 01.07.1998 as ultra vires the Constitution, the present writ
petition has been filed to strike down the said amended provision.
2. It is the case of the petitioners that the subject property in New Survey
No.C6/74, Kalkulam Village, Kalkulam Taluk, Kanyakumar District had been
classified as ‘Nilaviyal Santhu’ in the revenue records standing in the name of
Koonakani Pillai, the father of the deceased petitioner. The subject property is
situated north of the property in Survey No.C6/75 and both the properties, it is
averred, belonged to the father of the deceased petitioner. By a Will, the father
of the deceased petitioner bequeathed the properties in favour of his three sons,
viz., Mathavan Pillai (deceased petitioner), Radhakrishnan and Velayutham Pillai.
After the demise of their father, the subject properties devolved on all his sons.
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3. It is the further averment of the petitioners that a suit for partition in
O.S. No.111 of 2001 on the file of the Subordinate Court, Padmanabhapuram,
was filed by the brothers of the deceased petitioner for partition and in the said
suit an Advocate Commissioner was appointed, who inspected the properties and
filed a report. It is further averred that the subject property in Survey No.C6/74
had been carved out for the beneficial enjoyment of all the co-sharers of the
property in S. No.C6/75 and the subject property had been classified as ‘Nilaviyal
Santhu’ in the revenue records only to the manner of its usage. It is the further
averment of the petitioner that the said land will never vest with the Government
or the local authority and that they will have no right whatsoever over the
subject property.
4. It is further averred that the land in S. No.C6/75 belongs to the
petitioners neighbours and the said neighbours filed suit in O.S. No.66/2018 on
the file of the District Munsif Court, Padmanabhapuram against the deceased
th
petitioner and the 10 respondent praying for a decree for permanent injunction
th
restraining the petitioner and the 10 respondent from putting up any
construction in S. No.C6/74, but no interim was granted pending the suit. It is the
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further averred that a memo was filed in the suit alleging that the subject
property is a Government poramboke land and that the petitioner has
encroached upon the same and against the same, it was submitted that a writ
petition was to be filed before this court to remove the encroachment and,
therefore, liberty was sought for to withdraw the suit and file a writ petition and
the trial court, recording the same, by order dated 10.08.2023 dismissed the suit
as withdrawn.
5. It is further averred that based on the said liberty, W.P. (MD)
No.20876/2023 was filed seeking removal of the encroachment made in S.
No.C6/74 and also referring to certain orders passed by the Division Bench of this
court to the effect that Nilaviyal Santhu is a Government poramboke.
6. It is the further averment of the petitioner that Tamil Nadu Board of
Revenue Act, 1894 was enacted to provide for the conduct of business by the
Board of Revenue. 8. Before the Board of Revenue Act came into force, the
business of the Government regarding revenue matters were carried out in
accordance with Regulations I of 1803 and Regulations V of 1804. The
Regulations empowered the Board of Revenue to declare what portion of the
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business may be done by a single member or by two members or by the decision
of the collective board. These declarations are only executive orders. These
declarations were referred as Board Proceedings. By these Board Proceedings,
the Board of Revenue declared the procedure to be adopted by the officials
handling the revenue arm of the Government, which gave rise to the Board
Standing Orders/Revenue Standing Orders.
7. It is the further averred that Tamil Nadu Board of Revenue Abolition Act,
1980 was enacted repealing the Tamil Nadu Board of Revenue Act, 1894 in and
by which the powers exercised by the Board of Revenue were conferred upon the
Government, Commissioner, Additional Secretary to Government and District
Collector. The Section 10 (2) of the Act provides that the Standing Orders of the
Board of Revenue as in force on the date of the commencement of this Act shall,
on and from the said date, be called Revenue Standing Orders" and continue in
force until altered, amended or rescinded by the Commissioner or the
Government, as the case may be. It is further averred that these executive
orders cannot take away any substantive rights of a person guaranteed under the
Constitution of India or any other law enacted by the Parliament or the State
Legislature. It is the further averment of the petitioner that if there is a conflict
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between a Revenue Standing Order and substantive provisions of law, the
substantive law alone will prevail over the Revenue Standing Orders. A Revenue
Standing Order cannot take away a vested substantive right and cannot confer
such a right also. It is purely procedural based on the long experience.
8. It is the further averment of the petitioner that the decisions, which
were relied on in which it has been held that ‘Nilaviyal Santhu’ is a Government
poramboke is directly in conflict with the substantive law on the Transfer of
Property Act, 1882 and Article 300A of the Constitution. It is the averment of the
petitioner that RSO 26 (15) proceeds on the premise that a plan-marked channel
or pathway running in a patta land is a Government land and on that score, if the
abovesaid RSO is allowed to survive, then there would be no necessity for the
Government to invoke land acquisition to acquire lands from individuals as the
Revenue Department can merely mark details of channel or pathway in patta
lands in the survey sketches/field maps and later can claim the land as
Government land.
9. It is the further averment of the petitioner RSO 26 (15) is illegal and
unlawful as it runs counter to the Constitution, laws and the statute and the
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competence of the Government to bring the said Revenue Standing Orders, more
particularly RSO 26 (15) have not been considered by the earlier Division Benches
in the said decision and the said RSO 26 (15) is per se iilegal and against the
constitutional mandate and, therefore, deserves to be struck down for which the
present petition has been filed before this Court.
10. Basing his submission on the averments made in the affidavit filed in
support of the petition, learned counsel for the petitioners submitted that the
extraordinary jurisdiction under Article 226 has been invoked by way of the writ
of Declaration making a challenge in rem against an executive Government
Order, that purports to convert private patta land into state-owned domain in
and by which the executive administrative manuals subvert constitutional
property guarantees and bypass statutory eminent domain.
11. It is the further submission of the learned counsel that Article 300A of
the Constitution mandates that no person shall be deprived of his property save
by authority of law, wherein the term "law" strictly denotes an enactment passed
by a competent Legislature, whereas Revenue Standing Order 26(15) as
introduced / amended via G.O. (ID) No. 568 dated 23/10/2000 is merely an
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executive administrative instruction and not a legislative statute, consequently
making it legally impermissible for the executive to deploy RSO 26(15) to treat a
validly assessed private patta survey subdivision like Survey No. C6/74 as
government property or authorize summary eviction.
12. It is the further submission of the learned counsel that Section 10(2) of
the Tamil Nadu Board of Revenue Abolition Act, 1980 (Act 36 of 1980) merely
provides that pre-existing Board Standing Orders shall continue as "Revenue
Standing Orders" until altered, amended, or rescinded, representing a
transitional savings / continuity clause intended to prevent an administrative
vacuum upon the abolition of the Board of Revenue, which does not confer
legislative delegation upon the Government or Commissioner to invent or sustain
a substantive rule that divests citizens of vested private property title or rewrites
real property laws.
13. It is the further submission of the learned counsel that Section 9 of the
Tamil Nadu Board of Revenue Abolition Act, 1980 delegates rule-making power
to the Government to carry out the purposes of the Act subject to mandatory
publication in the Tamil Nadu Government Gazette and tabling before both
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Houses of the State Legislature, requiring any foundational alteration to revenue
or property classification affecting rights across the State has to adhere to this
rule-making discipline. However, bypassing the safeguards provided u/s 9
procedural via an executive G.O. renders the modification ultra vires .
14. It is the further submission of the learned counsel that Act III of 1905
(Tamil Nadu Land Encroachment Act, 1905) and the broader scheme of RSO 26
govern summary eviction strictly from Government lands / porambokes vesting in
the State, whereas sub-rule (15) introduces an illegal jurisdictional contradiction
by asserting that a plan-marked channel or pathway running inside a private
patta land is "Government land," which an executive standing order cannot
achieve because it cannot disassemble the private patta subdivisions through
administrative cartographic fiction, which if permitted, violates the the parent
statutory jurisdictional boundary.
15. It is the further submission of the learned counsel that RSO 26(1)
provides the jurisdictional threshold for the entire chapter, confining eviction and
penal mechanisms strictly to encroachment upon Government land and such
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being the case, through sub-rule (15) the foundational jurisdictional boundary
established under RSO 26(1) cannot be violated.
16. It is the further submission of the learned counsel that Sections 8 (2)
and (3) of the Tamil Nadu Land Encroachment Act, 1905 mandate that all rules
and orders made under the Act must be published in the Official Gazette and
placed before both Houses of the State Legislature, subjecting them to
modification or annulment. However, the impugned amendment in G.O. (1D)
No. 568 dated 23/10/2000 was never published in the Gazette and never placed
before the Legislature, which completely lacks statutory mandate.
17. It is the further submission of the learned counsel that Section 7 of the
Tamil Nadu General Clauses Act, 1891 prescribes mandatory procedural
safeguards for rules made after previous publication, including publication of
draft rules, notice specifying a date for objections, consideration of public
suggestions, and Gazette publication as conclusive proof of due making, meaning
the impugned G.O. completely bypassed previous publication and public
consultation, making the sub-rule a procedural and substantive nullity.
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18. It is further submitted that substantive private property rights flow
from registered documents such as the father's registered Will dated 22.01.1986
and civil court partition adjudications in O.S. No. 111 of 2001 on the file of the
Subordinate Court, Padmanabhapuram, supported by Advocate Commissioner
reports and sketches clearly delineating Survey Nos. 75 and 74, whereas revenue
survey sketch notations or labels like "Nilaviyal Santhu" are strictly for
fiscal/identification purposes and neither confer title on the State nor extinguish
vested private co-sharer title.
19. It is the further submission of the learned counsel that reclassifying or
treating a recognized, tax-assessed private patta survey subdivision as
"Government land" via RSO 26(15) violates the doctrine of legitimate expectation
and Article 14 of the Constitution of India as citizens who have enjoyed property
under valid registered instruments and civil partition decrees hold a legitimate
expectation that settled title will not be arbitrarily uprooted by executive manual
fiat.
20. It is the further submission of the learned counsel that permitting RSO
26(15) to treat private patta land as State property subverts the constitutional
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architecture of eminent domain, because if public access or a pathway is needed
over private holdings, the State is bound by statutory acquisition and
compensation mandates, and an executive standing order cannot serve as a
shortcut to expropriation.
21. It is the further submission of the learned counsel that u/s 4 of the
Indian Easements Act, 1882, an easement is a statutorily defined right which the
owner or occupier of certain land possesses for the beneficial enjoyment of the
land to do and continue to do something or to prevent and continue to prevent
something being done in or upon or in respect of certain other land not his own.
It is the further submission of the learned counsel that disputed questions of fact
with regard to easmentary rights between the land owner and private neighbour
cannot be adjudicated under Article 226 and must be decided exclusively by a
competent civil court after full trial and therefore the Revenue Department
cannot act as an easement or civil tribunal under the garb of RSO 26 (15).
22. Therefore, in fine, it is submitted that measured against Article 300A,
Section 10(2) of the 1980 Abolition Act, Section 9 of the 1980 Act, Section 8 of the
1905 Act, Section 7 of the General Clauses Act, RSO 26(1), and fundamental
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property jurisprudence, RSO 26(15) insofar as it annexes private patta land is
unconstitutional, ultra vires and ab initio void.
23. Per contra, learned Addl. Advocate General appearing for the
respondents submit that the petitioner's grievance essentially arises out of the
treatment of Survey No.C6/74, Kalkulam Village, as a plan-marked
pathway/Nilaviyal Santhu during 1967 settlement period and the consequential
recent action taken by the revenue authorities for protecting the pathway from
obstruction or encroachment. It is further submitted that the validity of RSO
26(15) and the question whether the particular property in Survey No.C6/74
answers the description contemplated by the said provision are two distinct
questions. A dispute regarding the application of a provision to a particular
property cannot by itself establish that the provision is constitutionally or
statutorily invalid.
24. It is the further submission of the learned Addl. Advocate General that
the challenge to RSO 26 (15) is highly belated, as RSO 26 (15) has its immediate
statutory and administrative history in the amendment process undertaken
pursuant to the letter of the Commissioner of Land Administration in
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Roc.No.24348/98 dated 01.07.1998, followed by Government approval in G.O.
(1D) No.568. Revenue Department, dated 23.10.2000. The provision has
therefore been in force for more than two decades before the filing of the
present writ petition in the year 2023. The underlying revenue treatment of plan-
marked pathways is much older and can be traced to the earlier Board
proceedings, including B.P.Mis.No.894 dated 30.05.1922 and the subsequent
proceedings culminating in B. P.Perm. 1039(E) dated 26.07.1966.
25. It is the further submission of the learned Addl. Advocate General that
the petitioner has not furnished any satisfactory explanation for the
extraordinary delay in either challenging the classification or challenging the
validity of a provision which has remained part of the revenue administration for
several decades. A subsequent dispute concerning the use or protection of a
particular pathway cannot, by itself, revive a stale challenge to the validity of the
provision itself. The petitioner may challenge a particular action, if otherwise
permissible in law, but such subsequent action cannot automatically furnish a
fresh cause of action to invalidate a long-standing statutory or administrative
provision. It is further submitted that the petitioner has sought for an in-rem
declaration striking down RSO 26 as amended, whereas the factual controversy
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relates to one specific property, namely Survey No.C6/74 to an extent of 40
sq.meters. The Court is therefore required to distinguish between the legality of
the provision generally and the factual question as to whether the particular land
in C6/74 is a plan-marked/public pathway to which the provision applies.
26. It is further submitted that petitioner himself relies upon the patta, the
Will, partition proceedings and other documents to establish his private claim
over the property. Those are essentially questions concerning the title and
character of the particular property, which are disputed questions relating to
facts, which cannot be challenged to strike down the provision of RSO 26 (15). It
is therefore the submission of the learned Addl. Advocate General that the
attempt to invalidate RSO 26 (15) at the threshold is liable to be rejected on the
ground that it is stale and proper-specific grievance.
27. It is the further submission of the learned Addl. Advocate General,
tracing the historical background relating to RSO 26 (15) as also the treatment of
plan marked pathways, submitted that the settlement/resurvey record shows the
existing physical and functional character of the land as a pathway and
recognised it by recording it during the settlement/resurvey process. It is
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therefore submitted that the classification as "Nilaviyal Santhu" is relevant as
official recognition of an existing pathway and not as the sole source by which the
pathway came into existence. It is further submitted that the length and and
continuous public use of a land as pathway determines the character of a
pathway. Long-standing public use is evidence of the existing public character of
the pathway, particularly where such use is supported by the survey records,
settlement records and the historical revenue treatment of plan-marked
pathways. The Board proceedings and the present revenue records therefore
have to be read together.
28. It is further submitted that once the land is established on the relevant
factual and revenue materials to be a public path, Section 2 of the Tamil Nadu
Land Encroachment Act, 1905 assumes significance. The provision expressly deals
with public roads, streets, lanes and paths and provides the statutory basis for
treating such public ways as Government property, subject to the qualifications
contained in the provision. It is therefore submitted that it is not the case that
RSO 26(15), by itself, converts an otherwise private property into Government
property. The case is that the land comprised in Survey No.C6/74 has a pre-
existing and independently recognised character as a public pathway and that the
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statutory framework, including Section 2 of the Land Encroachment Act and the
Revenue Standing Orders, seeks to recognises and protects that character.
29. It is further submitted that continuation of patta in the name of the
petitioners does not by itself negate the public character of S. No.C6/74. The
character of a particular portion of the land determines the use of the land and
patta entry cannot, by itself, conclude the character of a particular portion of
land. It is submitted that when S. No.C6/74 has been classified as ‘Nilaviyal
Santhu’ way back in the year 1967 and had been physically used as a pathway by
one and all even prior to the said year, merely because the patta stands in the
name of the petitioner cannot be the basis to determine the character of the
land, when the entire revenue and factual records speak otherwise.
30. It is the further submission of the learned Addl. Advocate General that
the contention of the petitioner that RSO 26(1) concerns only Government land
and it cannot support the operation of RSO 26(15) in respect of a pathway which
is situated within a patta holding, is wholly erroneous as the two provisions
should not be read in isolation or in a manner which renders the specific
provision concerning plan-marked pathways meaningless.
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31. It is further submitted that RSO 26(15) specifically addresses a plan-
marked channel or pathway running through patta land and its very purpose is to
deal with the special situation where a public pathway detail exists within a larger
survey holding. It is submitted that in the present case, the plan-marked channel
or pathway is supported by the separate survey identity, Nilaviyal Santhu
Classification, historical use and recognition of the existing public pathway in
C6/74 during settlement.
32. It is further submitted that the contention of the petitioner by relying
upon Section 9 RSO 26 (15) ought to have been laid before the Legislature is
wholly misconceived as the said procedure is applicable to statutory rules,
including publication. It is further submitted that the objection raised by the
petitioners as above proceeds on the assumption that the amendment to RSO 26
was an exercise of the rule-making power under Section 9 but it is on the basis of
Section 10(2), which specifically provides for the continuance and alteration,
amendment or the requirements applicable to the making of rules under Section
9 and rescission of the existing Revenue Standing Orders and it cannot be
mechanically imported into an amendment of an existing Revenue Standing
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Order undertaken under the specific statutory mechanism contained in Section
10(2).
33. It is the further submission of the learned Addl. Advocate General that
the constitutional challenge mounted by the petitioner founded upon Article
300A, on the premise that RSO 26(15) enables the State to convert patta land
into Government land without acquisition and payment of compensation is
grossly flawed. It is submitted that RSO 26 (15) is not an acquisition notification
asit does not purport to acquire or appropriate property, or transfer a private
title to Government. The respondents' case is based upon the pre-existing public
character of the plan-marked pathway and the statutory treatment applicable to
public paths.
34. It is further submitted that the constitutional question therefore
cannot be decided on the assumption that RSO 26(15) itself is the source by
which the State acquires private property. If a person establishes an
independent and legally enforceable title over a particular portion of land and
alleges an unlawful deprivation contrary to Article 300A, that individual question
has to be considered on its own facts and in accordance with the appropriate
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legal remedy and it cannot be said that the general Standing Order dealing with
plan-marked public pathways is unconstitutional.
35. It is further submitted that the constitutional protection against
deprivation of property does not prevent the State from protecting and
administering a public pathway whose character is established from the existing
survey, settlement and revenue records and its recognised public use. In the
present case, the respondents do not contend that RSO 26(15) itself cancelled
the patta or transferred the petitioner's property to the Government. The
character of Survey No.C6/74 had already been identified as a plan-marked
pathway even prior to the impugned amendment. As a ryot the petitioners’
right, if any, is subjective to the right of pathway which exists and runs with the
land. Once the land is established to be a public path by long usage through
survey and settlement records, Section 2 of the Tamil Nadu Land Encroachment
Act, 1905, provides the statutory consequence applicable to such public paths.
RSO 26(15) therefore operates for protecting such plan-marked pathways as part
of the administrative framework governing its usage and cannot be characterised
as an acquisition or deprivation of property.
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36. It is further submitted that the challenge under Article 14 also
proceeds on an incorrect premise. RSO 26(15) does not arbitrarily distinguish
between identifiable category, namely plan-marked channels and pathways
similarly situated private landholders. It addresses a specific and identifiable
category, viz., plan marked channels and pathways which serve public or
Government interests and whose obstruction or diversion affects the use for
which the pathway exists. Further, the classification has a rational connection
with the object of protecting public access and preserving plan-marked public
pathways. The petitioner's property is not being treated differently merely
because it belongs to an individual. It is being dealt with on account of the
particular character attributed to C6/74 in the survey and revenue records.
37. It is further submitted that the plea of legitimate expectation also
cannot confer upon the petitioner a substantive right to obstruct or appropriate a
pathway which has historically been recognised and used for public access. A
legitimate expectation cannot override the statutory and revenue framework
governing public pathways. It is therefore submitted that neither Article 14 nor
Article 300A is violated merely because RSO 26(15) recognises and provides for
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protection of plan-marked pathways situated within or passing through patta
holdings.
38. It is the further submission of the learned Addl. Advocate General that
the reliance placed upon the registered Will dated 22.1.1986, the partition
proceedings in O.S. No.111 of 2001 and the advocate commissioner’s report and
sketch together with other documents though establish the petitioner’s private
right over the property, which the respondents do not dispute, but the said
documents may be relevant for determining the inter se rights among the private
parties and that will not stand in the way of determining the statutory character
of a public pathway or extinguish rights, which are claimed by the Government
on behalf of the public and which is persisting.
39. In fine, it is the submission of the learned Addl. Advocate General that
the mere holding of patta cannot form the basis for negating the right of the
Government over the pathway when it is put to public use and it has been
maintaining its character for the last few decades and the petitioners cannot try
to challenge the constitutional validity of RSO 26 (15) after keeping silent for
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almost three decades from the coming into force of the said standing order and,
therefore, prays for dismissal of the present petition.
40. This Court gave its careful consideration to the submissions advanced
by the learned counsel appearing on either side and perused the materials
available on record.
41. Before proceeding to analyse the contentions, it is to be placed on
record that the petitioners have not questioned/challenged the rule making
power of the State to bring in the Revenue Standing Orders. The history behind
the coming into force of the Revenue Standing Orders would show that it has
been in existence in different forms exceeding a century with necessary
modifications. The grievance of the petitioners is only with regard to the
amendment made to RSO 26 (15), which was brought in through G.O. Ms.
No.568, Revenue Department on 23.10.2000. Therefore, this Court is not
venturing into the power of the State to bring in the Revenue Standing Orders;
suffice to only deal with the validity of RSO 26 (15) vis-à-vis the constitutional
mandate under Article 300-A read with the provisions of the other enactments to
which this Court’s attention was drawn.
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42. The historical background in the coming into operation of the Revenue
Standing Orders, which has been placed on record by the respondents, which is
borne out by record, for better appreciation, is captured hereunder :-
“The subject matter requires consideration in its proper
historical context. RSO 26(15) was not conceived in the year
2000 as a new mechanism for taking away private property.
The treatment of plan-marked details such as pathways,
irrigation channels and cart tracks has a long history in the
revenue administration. The proceedings relied upon by the
respondents refer to the earlier Board Proceedings Mis.No.894
dated 30.05.1922 and the subsequent proceedings including
B.P.Rt.No.2606(L) dated 29.04.1966 and B.P.Perm. 1039(E)
dated 26.07.1966.
The earlier Board proceedings of 1922 themselves dealt
with the treatment of encroachments upon plan-marked
details such as pathways, irrigation channels and cart tracks.
The subsequent Board proceedings of 1966 examined the
question in greater detail and rejected the assumption that a
plan-marked pathway would cease to have its
Government/public character merely because it was not
separately demarcated on the ground or separately subdivided
as poramboke.
The 1966 proceedings are particularly relevant to the
present case. The Board considered the treatment of plan-
marked pathways and cart tracks in the settlement records
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and observed that, during settlement, deductions were made
in respect of unprofitable areas and plan-marked details such
as ridges, irrigation channels, pathways and cart tracks. The
Board consequently held that the mere inclusion of such
details within a survey field did not amount to an
abandonment of Government rights over such details.
It is also material to notice that the very proceedings of the
Board of Revenue in B.P.Perm. 1039(E), dated 26.07.1966, did
not treat the plan-marked detail as an inflexible boundary
which could never be altered by the Ryot. The Board
specifically recognised that there could be cases where the
Ryot, through whose holding a plan-marked detail passed, had
shifted the detail from its original course so as to make it run
along one or more sides of his field, with a view to
consolidating his holding or facilitating irrigation of portions
which would otherwise be severed. The Board expressly
observed that such diversion or alteration of the course need
not be treated as an encroachment. Thus, the historical
scheme itself recognised the legitimate enjoyment and
consolidation of the Ryot's holding, while at the same time
preserving the character and public purpose of the plan-
marked detail.
The historical treatment of plan-marked pathways was not
founded upon the proposition that the mere existence of a
plan- marked detail would prevent the Ryot from making
reasonable use of his holding. The distinction drawn by the
Board was between a legitimate alteration made for
consolidation or enjoyment of the holding and an interference
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which would obstruct or defeat the public pathway or other
protected plan-marked detail. RSO 26(15), therefore, has to be
understood in this historical and functional context and not as
a provision which automatically deprives a pattadar of all
rights over the surrounding holding.
The historical background of the Ryotwari settlement is
also material. The Ryotwari system proceeded upon the survey
and settlement of individual holdings for the assessment and
collection of land revenue. The settlement records themselves
recognised that a Ryotwari holding could contain plan-marked
portions such as ridges, irrigation channels, pathways and
cart-tracks which were not ordinarily available for cultivation.
This makes it clear that the Ryot had no right or title over the
said portion of land. The patta issued is only subjective to such
pr-existing right which runs with the land. The Descriptive
Memoirs forming part of the Resettlement Registers/A-
Registers specifically unproductive portions while fixing the
assessment. Thus, the mere inclusion of a pathway or channel
within a survey field and the consequential continuance of the
patta over the holding cannot, historically or legally, be
understood as conferring upon the pattadar an unrestricted
proprietary right to obstruct appropriate the plan-marked
detail. The 1966 proceedings of the Board of Revenue in
B.P.Perm. 1039(E), dated 26.07.1966, expressly proceeded
upon this historical settlement position and recognised the
continued distinct character of plan-marked pathways, cart-
tracks and irrigation channels.
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7. The settlement/resurvey record shows the existing
physical and functional character of the land as a pathway and
recognised it by recording it during the settlement/resurvey
process. The classification as "Nilaviyal Santhu” is therefore
relevant as official recognition of an existing pathway and not
as the sole source by which the pathway came into existence.
8. Long and continuous public use is also relevant in
determining the character of a pathway. Long-standing public
use is evidence of the existing public character of the pathway,
particularly where such use is supported by the survey records,
settlement records and the historical revenue treatment of
plan- marked pathways. The Board proceedings and the
present revenue records therefore have to be read together.
The historical treatment demonstrates that plan-marked
pathways were recognised as distinct details within survey
holdings, the settlement records recognise the pathway in the
present case, the land is separately identified as C6/74, and
the actual use of the land corresponds with the revenue
classification as Nilaviyal Santhu.
43. From the above, it is clear that the manner in which the lands are dealt
with by the Revenue is governed by the various proceedings issued by the Board
under the Revenue Standing Orders, which dates back pre-independence. In the
above context of the coming into force of the Revenue Standing Orders, vide the
proceedings of the Board of Revenue dated 26.7.1996, vide Letter in RoC.
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No.24348/98 Q dated 1.7.1998, amendment was sought to be made to RSO 26
(15) which was amended vide G.O. Ms. No.568 dated 23.10.2000. Therefore, on
and from 23.10.2000, the aforesaid amendment had come into force amending
RSO 26 (15), which has not been challenged till the year 2023.
44. The facts as narrated by the petitioner in the affidavit would reveal
that by a registered Will dated 22.1.1986, the father of the deceased petitioner
had bequeathed his properties in favour of his three sons and after the demise of
his father, the properties devolved on his three sons. In the year 2001, a suit for
partition in O.S. No.111/2001 was filed before the Subordinate Court,
Padmanabhapuram by the siblings of the deceased petitioner in which an
Advocate Commissioner appointed by the Court had filed his report along with
sketches on 22.7.2003 showing the properties in Survey Nos.C-6/75 and C-6/74.
45. It is to be pointed out here that inspite of the fact that RSO 26 (15) was
amended vide G.O. Ms. No.568 dated 23.10.2000, which is much prior to the
filing of the partition suit, however, the said amendment was not questioned by
the deceased petitioner or his siblings even after filing of the partition suit or the
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decree thereafter. Only in the year 2023, through the present writ petition, the
deceased petitioner had questioned the amendment made to RSO 26 (15).
46. There is no quarrel with the fact that it is even the admitted case of the
petitioners that the subject property in Survey No.C6/74 had been carved out
only for the beneficial enjoyment of the property in S. No.C6/75, meaning
thereby that it is for the use of the deceased petitioner, his siblings and also the
other owners of the adjoining property. It is also the admitted case of the
petitioners that even in the revenue records the subject property is classified as
‘Nilaviyal Santhu’, which is substantiated by the Town Survey Land Register. It is
not denied by the petitioners that the said property is used as a pathway/cart-
track by the public and the same is evidenced by the other suit filed by the
neighbours, which, it is alleged, has since been withdrawn with liberty to file a
writ petition.
47. The situations in which the constitutional validity of law, viz., an Act,
Rules, Statute, Regulation, proceedings, etc., could be put in issue to test its vires
was dealt with in Naresh Chandra Agrawal - Vs – The Institute of Chartered
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Accountants of India & Ors. (C.A. No.4672/2012 – Dated 8.2.2024) , wherein the
Apex Court held thus :-
“21. In State of Tamil Nadu and Anr. v. P.
Krishnamurthy and Ors. (2006) 4 SCC 517 , this Court
recollected the following principles while adjudging the
validity of subordinate legislation, including regulations:
15. There is a presumption in favour of constitutionality
or validity of a subordinate legislation and the burden is
upon him who attacks it to show that it is invalid. It is also
well recognized that a subordinate legislation can be
challenged under any of the following grounds:
(a) Lack of legislative competence to make the
subordinate legislation.
(b) Violation of fundamental rights guaranteed under
the Constitution of India.
(c) Violation of any provision of the Constitution of India.
(d) Failure to conform to the statute under which it is
made or exceeding the limits of authority conferred by the
enabling Act.
(e) Repugnancy to the laws of the land, that is, any
enactment.
(f) Manifest arbitrariness/unreasonableness (to an
extent where the court might well say that the legislature
never intended to give authority to make such rules) .
(emphasis supplied)
48. Of the six available grounds for challenging the validity of RSO 26 (15),
it is quite clear that the scope of the challenge raised in this petition could be
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restricted to one ground in the instant case; that the Standing Order is in
violation of the fundamental rights guaranteed under the Constitution.
Therefore, it becomes imperative to examine whether the said RSO 26 (15)
violates the fundamental rights of the petitioners guaranteed under Article 300-A
of the Constitution.
49. Article 300-A mandates that no person shall be deprived of his
property save by authority of law. In the present case, it is the stand of the
petitioners that the amendment to RSO 26 (15) by means of G.O. Ms. No.568
dated 23.10.2000 takes away the right of the petitioners over the said Survey
No.C-6/74 and vests it in the Government without following the process of law
and relating to acquisition and, therefore, the said provision, according to the
petitioners, is ultra vires the Constitution.
50. In the light of the right guaranteed under Article 300-A of the
Constitution, reference to RSO 26 (15) is necessary to adjudicate whether it is
ultra vires the Constitution and, therefore, for better appreciation the same is
quoted hereunder :-
"15. Encroachments on plan-marked details:- A plan-
marked channel or pathway running in a patta land is a
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Government land. Eviction of encroachment in such lands need
be invoked only in cases where the encroacher has interfered
with the plan marked detail so as to close its entrance to and
exit from his lands. In the case of pathways and cart tracks
which have been used by the public till recently, the ryot
should not be allowed to shift the course of the details to suit
his own convenience. However, such diversions of plan marked
channel from its original course, with a view to consolidate his
holding or to facilitate irrigation of the portions which would
be otherwise severed need not be treated as encroachment."
51. Amendment had been brought to RSO 26 (15) to take care of
encroachments on plan-marked details vide G.O. Ms. No.568 dated 23.10.2000,
wherein, it provided that a plan-marked channel or pathway running in a patta
land is a Government land, where eviction of encroachment shall be invoked only
in cases where the encroacher has interfered with the plan-marked detail so as to
close its entrance to and exit from his lands and further where the pathways and
cart tracks have been used by the public, the ryot shall not be allowed to shift the
course of the details to suit his own convenience. But if such diversions of plan-
marked channel from its original course has been done with a view to consolidate
the holding or to facilitate irrigation of the portions which would be otherwise
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severed, the said RSO provides that the same need not be treated as
encroachment.
52. Article 300-A of the Constitution, as noted above, provides that no
person shall be deprived of his property save by authority of law . In the light of
the above constitutional mandate, could the amendment to RSO 26 (15) be
termed to be constitutionally violative, as it is alleged that it offends Article 300-A
which is the only issue that requires to be considered.
53. The historical background of the Revenue Standing Orders, which have
been spelt out by the respondents and as it is borne out by record. True it is that
RSO 26 (15) was not conceived in the year 2000 as a new mechanism for taking
away private property, but the system of treating plan-marked details such as
pathways, irrigation channels and cart tracks have been in vogue in the revenue
administration dating back to the year 1922 and subsequent proceedings of the
Board of the year 1966. It is further borne out by record that as early as in 1966,
the character of plan-marked pathways, irrigation channels and cart-track was
examined in detail and it was decided that a plan-marked pathway would not
cease to have its Government/public character merely because it was not
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separately demarcated on the ground or separately subdivided as poramboke.
The said view has been carried on in the Boards proceedings ever-since and it has
culminated in the present amendment. The historical background, as extracted
above, therefore, gives a clear picture as to the manner in which the treatment of
plan-marked pathways, irrigation channels and cart-track have progressed
through the various stages in the Board proceedings ultimately culminating in the
present amendment. Further, the said standing order has not faced any
challenge till date from any person citing take over of the said portion for public
usage and keeping it under the umbrella of the Government.
54. A pathway or a cart-track is carved out from a land, which is done not
only for utilisation by the landholders for access from and to their lands, but also
by all the general public so as to reach their property. The creation of the
pathway, cart-track and irrigation channels and earmarking of land for the same
is only for the use of the public at large, including the landholder. However,
when the piece of pathway/cart-track/irrigation channel is carved from a larger
chunk of land, which belongs to one person, though it is put to use for the benefit
of the public at large, the said piece of pathway/cart-track/irrigation channel
assumes the character of a public utility, though in essence the land from which
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the pathway/cart-track/irrigation channel is carved out, the title to the same
rests with the landholder but the character of the land would be noted as a
pathway/cart-track/irrigation channel in the revenue records and classified as
belonging to the Government, just like patta, which gives possessory rights to the
user of the land rather than title. In the same fashion, a
pathway/cart-track/irrigation channel, is used by the general public, but carved
out of the lands of the landholder, the possessory rights to the same shifts to the
Government by deeming it to be a patta-holder, for the benefit of public at large
while the right and title to the land rests with the land holder.
55. It is therefore unambiguously clear that the land, which is the subject
matter of the present litigation is in usage as a pathway/cart-track/irrigation
channel and has been carved out even in the suit filed for partition and the same
is carried out in the revenue records and its usage is not disputed by the
petitioners. Such being the case, though the right and title to the said land rests
with the petitioner, but the same is being maintained by the Government, since
the said land is shown as pathway/cart-track/irrigation channel in the plan-
marked detail and used as such by the general public for more than two decades.
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56. In the aforesaid backdrop of the logical conclusion that is arrived at in
the manner in which the character of a land is determined, more particularly with
reference to pathway/cart-track/irrigation channel, when the amendment to RSO
26(15) is looked at, it gives three clear prescriptions for considering whether
eviction with regard to any encroachments needs to be made on the plan-marked
details, viz.,
i) Eviction of encroachment need be invoked only in cases
where the encroacher has interfered with the plan
marked detail so as to close its entrance to and exit from
his lands;
ii) In the case of pathways and cart-tracks which have been
used by the public till recently, the ryot should not be
allowed to shift the course of the details to suit his own
convenience;
iii) diversions of plan marked channel from its original
course, with a view to consolidate his holding or to
facilitate irrigation of the portions which would be
otherwise severed, need not be treated as
encroachment.
57. From the aforesaid amendment, clear prescription has been made that
where any encroachment is made on plan-marked details, eviction of such
encroachment should be resorted to only when the encroacher interferes with
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the plan-marked detail so as to close its entrance to and exit from his lands; or
where the said pathway/cart-track is used by the public, the ryot should not be
allowed to shift the course of the details to suit his own convenience. However,
there is a clear separation in the amendment, which provides that interference
shall not be treated as encroachment when diversions of plan-marked channel
from its original course, has been done with a view to consolidate the holding or
to facilitate irrigation of the portions which would otherwise be severed.
58. By the above amendment, it is clear that with respect to lands, which
have been carved out for making a pathway/cart-track/irrigation channel, though
the title to the lands vests with the title holder, but the said portion of the lands,
which have been marked for public use, would be under the control of the State
in larger public interest and so long as the title holder does not in any manner
interfere in the usage of the lands by the general public, any deviations made by
the landholder on the said plan-marked lands for the purpose of facilitating
irrigation of the portions would not be deemed to be encroachment. This also
shows that the larger interest of the community with regard to irrigation
activities have been secured by allowing the landholder to make deviations in the
plan-marked lands if such deviations facilitate irrigation.
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59. The amendment, in clear and unambiguous term, has not taken away
the right and title of the landholder from the said lands, but only has preserved
the said demarcated space, which have been put to use for the public in larger
public interest by carving out the pathway/cart-track/irrigation channels, and
interference of the titleholder to the said lands has not been barred except
where the titleholder interferes with the usage of the said lands by encroaching
upon the same thereby affecting public interest.
60. It is not as if the amendment to RSO 26 (15) has robbed the petitioners
of their right and title over the lands in issue. It is to be pointed out that any
pathway/cart-track/irrigation channel that is carved out of a larger chunk of land
and sub-divided is for the benefit of the larger public and it is not confined to the
particular individual/title-holder alone. The land shifts to the coffers of the
Government as an usufruct, though the title rests with the title-holder. The
Government maintains the land and classifies it as its land with usage rights,
which enures to the benefit of the general public. In this analogy, the land, which
is the subject matter in issue has been rightly classified as ‘Nilaviyal Santhu’,
which means that it is classified as public property and individual land owners
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cannot claim exclusive ownership over it, even if it is mentioned in their private
sale deeds or registered documents. Only in the light of the above stated
position, necessary classification and entries have been made in the Registers
maintained by the Revenue, which cannot be said to be erroneous or illegal.
61. Though the provisions of Article 300-A of the Constitution and also
various other enactments relating to property jurisprudence and their
interpretation thereof vis-a-vis RSO 26(15), insofar as it annexes private patta
land, have been pressed into service to declare RSO 26 (15) as unconstitutional,
ultra vires and ab initio void , however, this Court on a clear and holistic
appreciation of RSO 26(15) vis-à-vis Article 300-A of the Constitution and the
other provisions as discussed above, is of the considered view that there is no
violation of any constitutional mandate by RSO 26 (15) so as to render the said
provision liable to be struck down as ultra vires. Further, the law on easements
also have to be appreciated in larger public interest and it cannot be shrinked
only to tailor the needs of the petitioners. Individual interest would be
subservient to larger public interest and when the said pathway has been in use
by the general public for more than two decades and the amendment to RSO 26
(15) has also withered away any attack for more than two decades, merely
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because, the petitioners have a grievance with regard to ownership rights over
the said pathway cannot be the basis for this Court cannot to turn the clock to
restore the said pathway by declaring the amendment, which has been brought
into the Standing Orders even before the partition suit was filed, the partition
having taken place under the said Standing Orders, viz., RSO 26 (15), the pathway
having been carved out of the lands, which were partitioned for public use, the
petitioners cannot now seek for declaration of the said amendment as ultra vires
Article 300-A , as they have, with open eyes, carved the pathway for being used
by the partitioners as well as the general public.
62. Seen from any angle of the issue in relation to the various provisions,
which have been pressed into service, even a bare perusal of the RSO 26 (15)
clearly shows that the Standing Order is only regulatory in nature, which
regulates the use of the land, which has been earmarked and classified for a
particular purpose and so long as it does not violate the right guaranteed by the
Constitution with regard to title, such earmarking and classification cannot be
said to be in violation of Article 300-A of the Constitution and, therefore, the
contention advanced in this regard deserves to be rejected.
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63. It is also borne out by record through the typed set of documents, filed
by the petitioners in which the Town Survey Land Register extract forms part. A
perusal of the said record clearly shows that the title to the said land stands in
the name of the deceased petitioner and that the land is classified as ‘Nilaviyal
Santhu’. The above land has been used for the said purpose since the division of
the property on the basis of the partition, which is not disputed by the
petitioners. Such being the case when the petitioners with open eyes have
created the demarcation and created the pathway, which has been used for
more than two decades by the general public in the locality, the petitioners are
estopped from challenging RSO 26 (15), which has been in force for more than
two decades, as any other construction would have a cascading effect on the
easmentary rights of the general public in the said area.
64. One other aspect which stares writ large on the face of the record is
the fact that the amendment was made to RSO 26 (15) through G.O. Ms. No.568,
Revenue Department dated 23.10.2000. On the said date, through the Will
executed by the father of the deceased petitioner, the lands in his holding were
bequeathed to the deceased petitioner and his siblings and after the demise of
his father, O.S. No.111 of 2001 was filed for partition in which an Advocate
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Commissioner was appointed, who had inspected the property and submitted a
report along with a sketch of the lands. Even at that point of time when partition
was made in the said suit, the aforesaid amendment had come into which is
admitted. However, no challenge was made to the said amendment at that point
of time. Even if the pathway had been carved out at the time of partition or after
partition, no challenge had been made to RSO 26 (15) by the petitioners. Only
about two decades later, in the year 2023, the present writ petition had come to
be filed challenging the vires of the amendment to RSO 26 (15), which had been
done through G.O. Ms. No.568, Revenue Department, dated 23.10.2000.
65. No explanation whatsoever has been given by the petitioners for their
silence and abstainment from challenging the said RSO 26 (15) for more than two
decades. When the lands have, by usage, been used by the general public and
that the classification of the land is shown as ‘Nilaviyal Santhu’, which has also
not been questioned for more than two decades the delay in approaching the
court challenging the vires of RSO 26 (15), is fatal, moreso when the lands have
been carved out for the pathway in the partition suit and have been used by the
general public. However, for reasons best known to the petitioner, the present
petition has been filed questioning the vires of the said amendment to RSO 26
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(15) at this belated point of time, which cannot be entertained as the usage over
the long period of time had recharacterised the character of the land for public
use and at this extreme point of time, the same cannot be interfered with by this
Court, as it would run against the interests of the general public who are the
users of the said pathway.
66. For the reasons aforesaid, this Court is of the considered view that no
case has been made to grant any declaration as sought for and this Court holds
that RSO 26(15) is intra vires the Constitution and, accordingly, this writ petition
fails and the same stands dismissed. Consequently, connected miscellaneous
petitions are closed. There shall be no order as to costs.
(M.D.I.J.) (N.D.K.J.)
16.10.2026
Index : Yes / No
GLN
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To
1. The Secretary to Government
Revenue Department
Government of Tamil Nadu
Chennai.
2. The Commissioner of Land Administration
Chepauk, Chennai 600 005.
3. The Commissioner of Revenue
Administration & Disaster Management
Chepauk, Chennai 600 005.
4. The Commissioner of Survey & Settlement
Chepauk, Chennai 600 005.
5. The Commissioner of Land Reforms
Chepauk, Chennai 600 005.
6. The District Collector
Kanyakumari District.
7. The District Revenue Officer
Nagercoil, Kanyakumari District.
8. The Revenue Divisional Officer
Padmanabhapuram, Thakkalai
Kanyakumari District.
9. The Tahsildar
Kalkulam Taluk
Kanyakumari District.
10.The Commissioner
Padmanabhapuram Municipality
Thakkalai, Kanyakumari District.
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https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/10/2026 10:49:32 am )

____________
W.P. (MD) No.26554/2023
M.DHANDAPANI, J.
AND
N.DILIPKUMAR, J.
GLN
PRE-DELIVERY ORDER IN
W.P. (MD) NO.26554 OF 2023

Pronounced on
16.10.2026
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https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/10/2026 10:49:32 am )