Pathway inside patta land stays with the State: Madurai bench upholds Revenue Standing Order 26(15)
A division bench of Justices M. Dhandapani and N. Dilipkumar held that a plan-marked channel or pathway running through private land is a public utility whose possessory rights shift to the Government while title stays with the landholder, and that a 2023 challenge to a rule amended in 2000 came two decades too late.
A strip of land that the State puts at forty square metres, in Kalkulam village, Kanyakumari district, has produced a ruling on who controls the pathways and irrigation channels that run through private farmland across Tamil Nadu. The Madurai bench of the Madras High Court on 16 October 2026 refused to strike down Revenue Standing Order 26(15), the provision under which the revenue department treats a plan-marked channel or pathway inside patta land as Government land. Justice M. Dhandapani, writing for a division bench that included Justice N. Dilipkumar, held that the Standing Order takes no title away from anyone, that it merely regulates land already earmarked for public use, and that heirs who waited twenty-three years to challenge a rule amended in 2000 could not be heard to complain.
A family pathway, a neighbours' suit and a writ in rem
The land at New Survey No. C6/74 stood in the revenue records in the name of Koonakani Pillai, classified as Nilaviyal Santhu, a revenue classification for a pathway. It lay north of his larger holding in Survey No. C6/75. By a registered Will dated 22 January 1986 he left his properties to his three sons, Mathavan Pillai, Radhakrishnan and Velayutham Pillai. In 2001 the brothers filed a partition suit, O.S. No. 111 of 2001, before the Subordinate Court at Padmanabhapuram, in which an Advocate Commissioner inspected the land and filed a report with sketches on 22 July 2003 showing both survey numbers. The family's case was that C6/74 had been carved out for the beneficial enjoyment of all the co-sharers of C6/75, that its classification described only how it was used, and that it would never vest in the Government or the local body.
The trouble began with the neighbours. In 2018 the owners of the adjoining land sued Mathavan Pillai and the Padmanabhapuram Municipality in the District Munsif Court, O.S. No. 66 of 2018, for a permanent injunction against any construction on C6/74. No interim order was granted. A memo was then filed in that suit describing C6/74 as Government poramboke on which Mathavan Pillai had encroached. The neighbours withdrew the suit on 10 August 2023 with liberty to move the High Court, and filed W.P. (MD) No. 20876 of 2023 seeking removal of the encroachment, citing earlier Division Bench orders to the effect that Nilaviyal Santhu is Government poramboke.
Mathavan Pillai responded with a writ of his own, filed in 2023 under Article 226, asking the court to declare RSO 26(15) ultra vires the Constitution. The provision had been amended by G.O. (1D) No. 568, Revenue Department, dated 23 October 2000, approving a proposal of the Commissioner of Land Administration dated 1 July 1998, which in turn drew on a Board of Revenue proceeding of 26 July 1966. Mathavan Pillai died while the petition was pending; his heirs Nagammal, Sreevalli and Pradeep were substituted on 24 September 2026, the day the matter was reserved.
The amended clause, which the bench quoted in full, reads in its opening sentence: “A plan-marked channel or pathway running in a patta land is a Government land.” It goes on to say that eviction of encroachment on such land need be invoked only where the encroacher has interfered with the plan-marked detail so as to close its entrance and exit from his lands; that in the case of pathways and cart tracks used by the public till recently, the ryot should not be allowed to shift the course of the detail to suit his convenience; but that diversion of a plan-marked channel from its original course to consolidate a holding or to facilitate irrigation of portions that would otherwise be severed need not be treated as encroachment.
The case against an executive order that calls private land Government land
Mr N. Gurusamy, for the petitioners, built a wide-ranging attack. Article 300A, he argued, permits deprivation of property only by authority of law, and law in that provision means an enactment of a competent legislature; RSO 26(15) is an executive instruction and cannot be used to treat a validly assessed patta subdivision like C6/74 as Government property or to authorise summary eviction. The Standing Orders themselves descend from Board proceedings under Regulations of 1803 and 1804, continued after the Tamil Nadu Board of Revenue Abolition Act, 1980, only by Section 10(2) of that Act, a transitional savings clause that confers no power to make substantive rules divesting title. Section 9 of the 1980 Act, which does confer rule-making power, requires Gazette publication and tabling before the legislature, and the 2000 amendment went through neither. Sections 8(2) and (3) of the Tamil Nadu Land Encroachment Act, 1905, impose the same discipline on rules under that Act, and Section 7 of the Tamil Nadu General Clauses Act, 1891, requires previous publication.
Counsel also pointed to RSO 26(1), which confines the chapter on encroachment to Government land, and argued that sub-rule (15) could not expand that jurisdiction by what he called administrative cartographic fiction. If the rule survived, he said, the State would never need to acquire land for a road; the revenue department could simply mark a channel or pathway on a field map and claim the land. Title flowed from the registered Will and the partition decree, not from survey notations, which exist for fiscal purposes. Reclassifying tax-assessed private land as Government land violated Article 14 and legitimate expectation. And disputes about easements between private neighbours, under Section 4 of the Indian Easements Act, belonged to a civil court after trial, not to the revenue department acting under RSO 26(15).
Mr Abdul Hameed, Additional Advocate General, assisted by Mr G. Mohan Kumar, separated two questions the petition had merged: whether RSO 26(15) is valid, and whether C6/74 answers its description. A dispute about the second could not establish the first. The provision had been in force since 2000 and the treatment of plan-marked pathways went back to Board proceedings of 30 May 1922 and 26 July 1966; the petitioners had offered no explanation for the delay, and a fresh dispute about one pathway could not revive a stale challenge. The factual controversy concerned a single property of forty square metres.
On substance, the State's position was that RSO 26(15) is not an acquisition notification and does not purport to transfer private title to Government. The settlement and resurvey records of 1967 had recognised an existing physical pathway; the classification was official recognition of a path already there, not the source of it; and long public use, supported by survey, settlement and revenue records, fixes the character of a pathway. Once the land is established as a public path, Section 2 of the 1905 Act supplies the statutory consequence, since it deals expressly with public roads, streets, lanes and paths. Continuation of patta in the petitioners' name did not negate that public character, because patta records possession rather than concluding the character of every portion of a holding. Section 9 of the 1980 Act, counsel argued, governs statutory rules; the 2000 amendment was made under the separate mechanism in Section 10(2) for altering existing Standing Orders. The Will, partition proceedings and Commissioner's report established private rights among the family, which the State did not dispute, but could not extinguish rights the Government claimed on behalf of the public.
Possession to the Government, title to the ryot
The bench first narrowed the field. The petitioners had not questioned the State's power to make Revenue Standing Orders at all, a system that had existed in different forms for over a century; their grievance was only with the 2000 amendment to sub-rule (15). Drawing on Naresh Chandra Agrawal v. Institute of Chartered Accountants of India, which restated the six grounds from State of Tamil Nadu v. P. Krishnamurthy on which subordinate legislation can be attacked, the court held that the challenge here could be tested on one ground only: whether the Standing Order violated the right guaranteed by Article 300A.
Justice Dhandapani accepted the historical account placed on record by the State as borne out by the record, and set it out at length. The treatment of plan-marked details such as pathways, irrigation channels and cart tracks went back to Board Proceedings of 1922. The 1966 proceedings examined the question in detail and rejected the idea that a plan-marked pathway lost its public character merely because it was not separately demarcated on the ground or subdivided as poramboke; during settlement, deductions had been made for such unprofitable areas, so their inclusion within a survey field did not amount to abandonment of Government rights. The same 1966 proceedings recognised that a ryot might shift a channel to consolidate his holding, and said that need not be treated as encroachment. The ryotwari settlement itself, the court said, proceeded on the footing that a holding could contain plan-marked portions not available for cultivation, with the patta issued subject to that pre-existing right running with the land.
From this the bench drew a general proposition. A pathway, cart track or irrigation channel carved out of a larger holding serves not just the landholder but everyone who needs to reach their property through it. Though title to the land from which it is carved rests with the landholder, the strip assumes the character of a public utility; it is noted as such in the revenue records and classified as belonging to the Government. The court drew an analogy with patta, which gives possessory rights to the user rather than title: in the same way, possessory rights over the strip shift to the Government, which is deemed the patta-holder for the benefit of the public, while right and title remain with the landholder. Elsewhere the judgment described the land as shifting to the Government as an usufruct.
The court also recorded that in the quarter-century since the amendment, nobody had challenged the Standing Order on the ground that it took over a portion of private land for public use and placed it under the Government. It accepted the State's reading that RSO 26(1), which confines the chapter to Government land, could not be read in isolation so as to render the specific provision on plan-marked pathways meaningless.
Read against that framework, the bench found that the amended sub-rule lays down three prescriptions: eviction only where the encroacher has closed the entrance and exit of the plan-marked detail; no shifting of the course of a pathway or cart track used by the public; and no treatment of a diversion made to consolidate a holding or facilitate irrigation as encroachment. The amendment, the court held, had in clear terms taken away no right or title; it preserved a demarcated space already put to public use and barred the title-holder's interference only where it affected the public. It even secured the community's irrigation interests by letting the landholder deviate the channel for that purpose. The court called the provision regulatory in nature, regulating the use of land earmarked and classified for a particular purpose, and held that so long as it did not touch the constitutional guarantee of title, the earmarking and classification did not violate Article 300A.
What the petitioners themselves admitted
The facts the court relied on came largely from the petitioners' own pleadings. It was their admitted case that C6/74 had been carved out for the beneficial enjoyment of C6/75, which meant for the use of Mathavan Pillai, his brothers and the other owners of adjoining property. It was admitted that the revenue records classified it as Nilaviyal Santhu, a fact borne out by the Town Survey Land Register extract in the petitioners' own typed set of documents, which also showed title standing in the deceased petitioner's name. And the petitioners did not deny that the public used the land as a pathway or cart track, a use evidenced by the neighbours' suit. The land had been in such use for more than two decades, the court found, and was maintained by the Government because the plan-marked detail showed it as a pathway.
On easements, the bench said the law had to be appreciated in the larger public interest and could not be shrunk to suit the petitioners' needs. “Individual interest would be subservient to larger public interest”, it held. The pathway had been in public use for more than two decades; the amendment had withstood any attack for the same period; the partition had taken place under the amended Standing Order and the pathway had been carved out of the partitioned lands for public use. The petitioners had, with open eyes, created the demarcation and the pathway, and were estopped from challenging RSO 26(15), since any other construction would have a cascading effect on the easementary rights of the general public in the area.
Delay was treated as independently fatal. The amendment of 23 October 2000 predated the partition suit of 2001 and the Commissioner's report of 2003; neither Mathavan Pillai nor his siblings questioned it then, or after the decree, or at any time until 2023. No explanation was offered for the silence. When the land had by usage become a public path, and its classification had gone unquestioned for over two decades, the delay in approaching the court could not be entertained, the more so because interference now would run against the interests of the people who use the pathway. Usage over that period, the court said, had recharacterised the land for public use.
Order
The bench held that no case had been made for the declaration sought and that RSO 26(15) is intra vires the Constitution. W.P. (MD) No. 26554 of 2023 was dismissed, the connected miscellaneous petitions in W.M.P. (MD) Nos. 22828, 22830 and 25891 of 2023 were closed, and there was no order as to costs. The matter was reserved on 24 September 2026 and pronounced on 16 October 2026. The tenth respondent, the Commissioner of Padmanabhapuram Municipality, did not appear.