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S. Kamaraj v. Government of Tamilnadu - Writ Petition No.2109 of 2002 and Writ Petition No. 2401 of 2002  RD-TN 250 (12 April 2002)
In the High Court of Judicature at Madras
The Hon'ble Mr. Justice P. SATHASIVAM
Writ Petition No.2109 of 2002 and Writ Petition No. 2401 of 2002
W.P.M.Ps.No.2913, 3326, 5017 to 5019 & 9158 of 2002
S. Kamaraj .. Petr. In WP.2109 of 2K2
2.P. Paulsami Nadar
4.M. Parimala Selvam
6.A. Gnana Athisiya Selvam
10.S. Jawaharlal Nehru
11.K. Sakthivel Pandiyan
12.N. Subramaniya Nadar
14.A. Yacoob Nadar
16.N. Kulasekarapandi Nadar
17.V. Rajambal .. Petrs. In WP.2401 of 2K2
1.Government of Tamilnadu
rep. By its Secretary
Fort St. George, Chennai 9.
3.The Divisional Engineer
Grade II rep. By its
President, Tenkasi Taluk
Tirunelveli District. .. Respondents in both Wps.,
5.The Inspector of Police
Tenkasi Taluk .... 5th Respondent in
Tirunelveli District. W.P.No.2109/2K2
Petitions filed under Article 226 of the Constitution of India
praying for issuance of writ of mandamus as stated therein.
For petitioners : Mr. B.S. Gnanadesikan
For respondents : Mr. P.S. Jayakumar
Since the issue raised in both the writ petitions is one and the same, they are being disposed of by the following common order.
2. S. Kamaraj, has filed W.P.No.2109 of 2002 seeking to issue a writ of mandamus directing the respondents not to interfere with his lawful possession of the building in Door No.10/780 to 7783 in Survey No.348/1 in Pavoorchatram Village, Kulasekarapatti, Tenkasi Taluk, Tirunelveli District.
3. In W.P.No.2401 of 2002, V. Shanmugam and 16 others joined together and prayed for similar relief as claimed in W.P.No.2109 of 2002.
4. The case of the petitioners is briefly stated hereunder: According to the petitioners, they were in occupation of 32 cents of land in Survey No.348/1 in Pavoorchatram Village, Kulasekarapatti, Tenkasi Taluk, Tirunelveli District. The land in question was in occupation of the petitioners and their predecessors for more than 50 years. The 4th respondent - Kulasekarapatti Panchayat collected ground rent for the land occupied. They constructed pucca building with solid foundation in the land in question. All of them are residing in the houses constructed. The buildings were assessed to house tax and all of them are paying house tax to the 4th respondent. They also paying profession tax to the 4th respondent for the business they are carrying on in the said premises. They are having electricity and telephone connection to their buildings and paying the charges to the respective authorities till date. While so, all of a sudden, the officials of the Highways Department, Tahsildar, Revenue Divisional officer came to the spot to demolish the buildings constructed by them on the plea that they have been directed to remove all encroachments. They resisted and highlighted their continuous possession for the last 50 years and the investment made by them. Because of the huge crowd gathered at the scene, they were left the place without doing anything. Again, they came on 25.01.2002 and started demolishing some portions of the buildings, hence having no other remedy filed the above writ petitions.
5. The second respondent - Collector, Tirunelveli District has filed a counter affidavit in W.P.No.2109 of 2002. It is stated that the petitioner, S. Kamaraj and 17 others of Pavoorchatram Village have encroached upon the Government land in Survey No.348/1 measuring to an extent of 0.37.5 hectares and classified as Oorani poramboke by way of constructing RCC / tiled roof buildings and they were conducting business therein. Since the above land has been classified as Oorani poramboke - a water source poramboke, the encroachment of the petitioners was treated as highly objectionable and penalty was levied and orders issued to vacate the said encroachments every year. But, they have not vacated and went on enlarging their occupation by constructing additional buildings. Notices under Section 7 of the Tamil Nadu Land Encroachment Act, 1905 (herein after referred to as "the Act") were served on the encroachers on 25.07.2001. As the encroachers refused to receive the notices, they were served by affixture on a conspicuous place of their business premises in the manner prescribed. No reply was received from the petitioners till the expiry period of the notice and even after the due date. Finally, notice under Section 6(2) of the Act was issued on 10.10.2001 and served on 14.10.2001, by affixture as they refused to receive the notices. After issuance of notice under the Tamil Nadu Land Encroachment Act the eviction of encroachments in Government poromboke land were carried out on 18.01 .2001 and 20.01.2002. The entire eviction process were over by 20.01 .2002 and there was no structure in the above land on 21.01.2002. Without disclosing the real facts, the petitioners approached this Court and obtained an interim order. For the benefit of the public, widening the road and for provision of bus stand etc., the land in question is absolutely required.
6. The petitioners have filed a reply affidavit disputing the stand taken by the respondents and reiterating the earlier stand.
7. In the light of the above pleadings, I have heard the learned counsel for petitioners as well as respondents.
8. The points for consideration in these writ petitions are: " 1. Whether the show cause notice under Section 7 and notice under Section 6 (2) of the Tamil Nadu Land Encroachment Act were served on the petitioners, before evicting them from the premises in question?
2. What is the relief to be granted in favour of the petitioners? "
9. I have already stated that it is the definite case of the petitioners that they were in occupation of 32 cents of land out of 93 cents in Survey No.348/1 in Pavoorchatram Village, Kulasekarapatti, Tenkasi Taluk. According to them, their forefathers and themselves were in occupation for more than 50 years. It is also their case that they constructed pucca building and using their front portion for commercial purpose. The buildings were also assessed to house tax and they are paying house tax to the 4th respondent. They obtained electricity and telephone connection to their buildings. It is also stated that profession tax is also being collected from the persons who are carrying on business in the premises, by the 4th respondent till date. These factual details have not been specifically denied in the counter affidavit filed by the Collector, Tirunelveli District. It is true that the encroached land in Survey No.348/1 is a Government land. In the counter it is stated that the said land is classified as Oorani poramboke. Even though it is stated that the petitioners are not encroachers because of their occupation of the land for nearly 50 years and constructed pucca buildings 35 years back with huge investment, the fact remains that the land belongs to Government. In such a circumstance, the respondents are at liberty to evict them in accordance with law.
10. There is no dispute that before passing an order under Subsection (2) of Section 6 of the Act, it is mandatory on the part of the second respondent to issue show cause notice under Section 7. " 6. Liability of person unauthorisedly occupying land to summary eviction, forfeiture of crops etc.,-(1) Any person unauthorisedly occupying any land for which he is liable to pay assessment under Section 3 or Section 3-A may be summarily evicted by the Collector or subject to his control, by the Tahsildar or Deputy Tahsildar or any other officer authorised by the State Government in this behalf ( hereinafter referred as the Authorised Officer) and any crop or other product raised on the land shall be liable to forfeiture and any building or other construction erected or anything deposited thereon shall also, if not removed by him after such written notice as the Collector or subject to his control, the Tahsildar or Deputy Tahsildar or authorised Officer may deem reasonable, be liable to forfeiture. Forfeitures under this section shall be adjudged by the Collector or subject to his control by the Tahsildar, or Deputy Tahsildar, or authorised Officer and any property so forfeited shall be disposed of as the Collector or subject to his control the Tahsildar or Deputy Tahsildar or authorised Officer may direct. (2)An eviction under this section shall be made in the following manner namely:-
By serving notice in the manner provided in Section 7 on the person reputed to be in occupation or his agent requiring him within such time as the Collector or the Tahsildar or Deputy Tahsildar or Authorised Officer may deem reasonable after receipt of the said notice to vacate the land, and, if such notice is not obeyed, by removing or deputing a subordinate to remove any person who may refuse to vacate the same, and if the officer removing any such person shall be resisted or obstructed by any person, the Collector or the Tahsildar, or Deputy Tahsildar or Authorised Officer shall hold a summary inquiry into the facts of the case, and if satisfied that the resistance or obstruction was without any just cause and that such resistance or obstruction still continues, may issue a warrant for the arrest of the said person and on his appearance commit him to close custody in the office of the Collector or of any Tahsidlar or Deputy Tahsildar or Authorised Officer for such period not exceeding thirty days as may be necessary to prevent the continuance of such obstruction or resistance or may send him with a warrant in the form of the Schedule for imprisonment in the civil jail of the district for the like period. "
" Section 7. Prior notice to person in occupation.- Before taking proceedings under Section 6 the Collector or Tahsildar or Deputy Tahsildar or Revenue Inspector or any Authorised Officer or [any other officer specified by the State Government in this behalf (not being an authorised officer)] (hereinafter referred to as the 'specified officer, as the case may be shall cause to be served on the person reputed to be in unauthorised occupation of land being the property of Government a notice specifying the land so occupied and calling on him to show cause before a certain date why he should not be proceeded against under Section 6. Such notice shall be served in the manner prescribed in Section 25 of the Tamil Nadu Revenue Recovery Act, 1864, or in such other manner as the State Government by rules or orders under Section 8 may direct: Provided that no such notice shall be necessary in the case of any person unauthorisedly occupying any land, if he had been previously evicted from such land under Section 6 or if he had been previously evicted from such land under Section 6 or if he has previously vacated such land voluntarily after the receipt of a notice under Section 5B or under this section:
Provided further that where the notice under this section is caused to be served by any Revenue Inspector or [any specified officer] he shall require the person reputed to be in unauthorised occupation of the land to show cause against such notice to the Collector, Tahsildar, [Deputy Tahsildar or authorised officer having jurisdiction, as the case may be] and shall also make a report in writing containing such particulars as may be specified in rules or orders made under Section 8 to the Collector, Tahsildar, Deputy Tahsildar or authorised person having jurisdiction, as the case may be. "
11. The reading of the above provisions make it clear that though the authority under the Act is empowered to evict the encroachers, it is incumbent on him to issue prior notice to the person in occupation under Section 7, to show cause why action under Section 6 should not be taken against him. The said notice shall caused to be served on the person reputed to be in unathorised occupation of land, the notice must also contain certain date that why he should not be proceeded against under Section 6. It is also clear that the notice to be served on the encroacher in the manner prescribed in Section 25 of the Tamil Nadu Revenue Recovery Act, 1864 (in short "R.R. Act"). After affording such opportunity, if such notice is not obeyed, the person concerned may be removed by the officer authorised. In case if there is any resistance or obstruction or objection, the Collector or the Tahsildar or Deputy Tahsildar or authorised Officer has to hold summary enquiry into the facts of the case and depending on the merits of their claim, further order has to be passed for custody of the person.
12. As stated earlier, it is the specific claim of the petitioners that they were not served with show cause notice either under Section 7 nor an order under Section 6 (2) of the Act. Learned Government Advocate relying on the statement of the Collector, Tirunelveli in his counter affidavit and placing the xerox copy of the records contended that, since the encroachers refused to receive the notices, they were served by affixture on a conspicuous place of the business premises in the manner prescribed. The xerox copy of the records show that there is an endorsement by the Tahsildar stating that since the encroachers refused to receive, the same were affixed in their business premises. No doubt, the xerox copies show that some known persons have signed as witness near the above statement in support of the stand taken by the respondents. I have already referred to the fact that the show cause notice under Section 7 is to be served in the manner prescribed in Section 25 of the R.R. Act. Section 25 of the said Act is as follows: " Before a Collector, or other officer empowered by the Collector in that behalf, proceeds to attach the land of the defaulter or buildings thereon, he shall cause a written demand to be served upon the defaulter, specifying the amount due, the estate or land in respect of which it is claimed, the name of the party in arrear, the batta due to the person who shall serve the demand, and the time allowed for payment, which shall be fixed with reference to the distance from the land on which the arrear is due to the place at which the money is to be paid. Such demand shall be served by delivering a copy to the defaulter; or to some adult male member of his family at his usual place of abode, or to his authorised agent, or by affixing a copy thereof on some conspicuous part of his last known residence, or on some conspicuous part of the land about to be attached. "
13. The later part of the Section makes it clear that notice shall be served by delivering a copy to the encroacher or to some adult male member of his family at his usual place of abode, or to his authorised agent, or by affixing a copy thereof on some conspicuous part of his last known residence, or on some conspicuous part of the land about to be attached. In the counter affidavit or in the records there is no material to show that any attempt was made to serve notice on the adult male member of his family. The perusal of the records ( xerox copies) produced by the Government Advocate does not show that the respondents have fully complied with the mandate of Section 25 of R.R. Act.
14. Now, I shall consider various decisions relied on by Mr. B.S. Gnanadesikan, learned counsel for the petitioners to show that how those provisions have to be complied with and the effect of noncompliance.
15. In the Division Bench case of V. Arunagiri vs. The Divisional Engineer, National Highways, Thiruvannamalai reported in 1999 (1) C. T.C. 1, Shivaraj Patil,J., (as His Lordship then was) speaking for the Bench has held,
" 10. ........ Even if the appellants were the encroachers or trespassers, their buildings cannot be demolished without following the necessary procedures as contemplated under the Act and without compliance with the requirements of Sections 6 and 7 of the Act. ... "
16. In the case of Kathalingam vs. State of Tamilnadu reported in 1 999 (III) C.T.C. 636, K. Govindarajan,J., after considering various earlier decisions with reference to notice under Section 7, enquiry and order under Section 6 has held that,
" Section 7 of the Act makes it mandatory that if there is obstruction or person in occupation resisting removal from land, Collector should hold summary enquiry to satisfy himself about resistance or obstruction. After satisfying himself that the Collector failed to hold summary enquiry, directed the Government to redeliver possession of land in question. "
17. In the case of Habibullash vs. State of Tamilnadu reported in 1 994 M.L.J. 229 A.R.Lakshmanan,J., (as he then was) has held, " The prior notice to be issued under Sec.7 should specify a date before which the person in unauthorised occupation should be asked to show cause as to why he should not be proceeded against. It is obligatory on the part of the authority issuing notice under Sec.7 to specify 'a certain date'. In contra distinction, Sec.6 (2) uses the expression "service of a notice on the person reputed to be in occupation requiring him within such time" as the Collector may deem reasonable to vacate the land. Thus, it is clear that prior notice under Sec.7 should contain 'a certain date' while a notice under Sec.6 92) to specify "such time" as the Collector or his subordinate may deem reasonable. Thus, the legislature has deliberately used two different expressions in Secs.7 and 6 of the Act. If a prior notice issued under Sec.7 does not contain 'a certain date', it would be in violation of the mandatory requirement of the Section. "
The perusal of file does not disclose that notice under Section 7 said to have been issued does not contain 'a certain date', accordingly, the same is in violation of mandatory requirement of the Section.
18. In the case of Sathish vs. Tahsildar, Sirkali reported in 1998 (III) C.T.C. 215, a Division Bench of this Court has held, " If there is resistance or objection, a summary enquiry has to be conducted under Sub-clause 92) of Section 6 of the Act."
19. In the case of N. Periasamy vs. Sub-Collector, Tiruppur reported in A.I.R. 2000 Madras 241, V.Kanagaraj,J., has held, " 12. As we have seen in the judgments supra, mere service of S.7 notice is not sufficient to specify the needs of law nor even in the case where it is served, as it is claimed on the part of the learned Additional Government Pleader here, the further question that is to be gone into is whether the manner in which it has been served, as held by different upper forums of law in the aforesaid judgments, is relevant. Furthermore, the enquiry is also contemplated to be held by the evicting Officer and then now the eviction notice has to be served in the presence of the petitioner or in his absence by affixture or in the presence of neighbours with their signatures and those procedures have to be meticulously adhere to."
20. In the case of Hasmavalli vs. Tah Tahsildar, Vridhachalam reported in 1990 Writ Law Reporter 151, the Division Bench has held that,
" The language of S.7 of the Act is unambiguous when it says that before taking proceedings under S.6, the Authority concerned shall cause to serve on the person reported to be in unauthorised occupation of land being the property of Government a notice specifying the land so occupied and calling on him to show cause before a certain date why he should not be proceeded against under Ss.6 and 7 also contemplates as to how such notice shall be served. It is not possible to belittle the requirements of this provision and reduce them to an empty formality. When a power is vested with an authority under the statute, that power must be exercised strictly in accordance with the procedure prescribed therefor, and any departure therefrom cannot be easily tolerated. "
21. In the case of Ramaswamy vs. Tahsildar, Saidapet, Madras reported in A.I.R. 1992 Madras 367, another Division Bench had an occasion to consider the service of notice in the manner provided under Section 5 of the Tamilnadu Revenue Recovery Act. After extracting the said provision, the Bench has concluded,
" As we would seen from the extract made above, there could be service by delivering a copy to the defaulter, or to some adult male member of his family at his usual place of abode, or to his authorised agent, or by affixing a copy thereof on some conspicuous part of his last known residence, or on some conspicuous part of the land about to be attached. So far as the refusal of notice is concerned, such refusal and any endorsement to that effect are not contemplated as sufficient service by S.25 of the Tamil Nadu Revenue Recovery Act,1864. In the matter of service of notice under S.7 of the Act, when the specific provision of s.25 of the Tamil Nadu Revenue Recovery Act, 1864 has been invoked, we have to go by the express verbalism found in that provision on the question of service and it is not possible to stretch it so as to bring in any contingency other than those set forth in the said provision, as amounting to proper service. ..... "
22. From the above discussion it is clear that even though the land belongs to the Government and the petitioners have put up buildings unauthorisedly, in view of their long use (according to the petitioners for the last 50 years, they were paying ground rent and for the last 30 years after construction of building in the said land paying house tax to the 4th respondent) and in view of the statutory provisions in the Tamil Nadu Land Encroachment Act, which are mandatory before passing an order of eviction, I am of the view that the respondents have to fully comply with those provisions.
23. I have already observed that though it is recorded that the petitioners refused to receive those notices, as rightly argued by the learned counsel for petitioners, in the light of their long use, enjoyment and improvement in the property in question, it is highly improbable that they would ignore the notice and failed to submit their objection as claimed by the respondents. As a matter of fact, if there is any resistance, the same should be construed as an objection and in that event it is incumbent on the part of the Collector to conduct a summary enquiry and pass appropriate orders.
24. Mr. B.S. Gnanadesikan, learned counsel for the petitioners by drawing my attention to the specific averments in the affidavit, has contended that at the time of using machinaries for demolishing their buildings, all of them resisted and objected to the persons concerned. In such a circumstance, in the light of the factual position narrated above and in view of the statutory provisions, I hold that the District Collector or the Officer subordinate to him ought to have conducted an enquiry before proceeding with the eviction and accordingly, the entire action of the respondents cannot be sustained. I am satisfied that disregard to the statutory compliance and unmindful of the law laid down in various decisions, the respondents interfered with the possession of the petitioners. For able eviction by the Revenue Authorities without following the legal requirements is bad in law. In such a circumstance, there will not be any difficulty in allowing the writ petitions. However, Mr. B.S. Gnanadesikan, learned counsel for the petitioners would contend that though the petitioners have prayed for limited relief directing the respondents not to interfere with their possession, inasmuch as the respondents have exceeded their jurisdiction in taking possession of the premises forcibly from the petitioners without following the procedure known to law, necessary direction may be issued to the respondents to hand over back the land in question within reasonable time to be fixed by this Court.
25. In support of his above claim, he referred to the decisions of this Court in the cases of Meera Nireshwalia vs. State of Tamilnadu and T. Rajalakshmi vs. The Coimbatore City Municipal Corporation reported in 1990 W.L.R. 313 and 1992 M.L.J. 568 respectively. In the case Shoan Lal vs. Union of India reported in A.I.R. 1967 S.C. 529, the Supreme Court after holding that one Jagan Nath had been evicted from a premises in contravention of law and his eviction was illegal, therefore a writ of mandamus could issue to or an order in the nature of mandamus could be made against the Union of India to restore possession of the property to the said Jagan Nath had been evicted. In the decision reported in 1990 W.L.R. 313 (cited supra), Mishra,J., has held that,
" A writ court's jurisdiction in these matters is more ex debito justitiae than as a rule of law as Courts as sentinels of the people's rights, cannot close their eyes to matters which strictly do not fall within the realm of law, or in cases where law is thrown to winds and those who are expected to obey, observe, and follow law, decide to violate it. "
26. Following the decision of Mishra,J., in the latter case, namely, 1990 W.L.R. 313 (cited supra), Bakthavatchalam,J., after holding that the Corporation has exceeded its jurisdiction in taking possession of the premises from the petitioner, without following the procedure known to law, issued a writ of mandamus to the respondent / Corporation to hand over back the premises to the petitioner. Since, I have concluded that in these cases the respondents have exceeded their jurisdiction and have thrown the rule of law to winds, the petitioners are entitled to such direction.
27. In the light of what is stated above, both the writ petitions are allowed and mandamus is issued to the respondents to hand over back the premises / land to the respective petitioners on or before 26.0 4.2002. No costs. 28. As regards the claim for compensation, all the petitioners are given liberty to approach the appropriate forum. It is open to the respondents, if they so desire, that the encroachments are to be removed in relation to the petitioners, they can do so, but by following the procedure as contemplated under the provisions of the Act, in particular Sections 7 and 6 of the Act or any other law. In that event, it is open to the petitioners to contest the same as per their rights and stand available to them in law.
29. In view of the disposal of the main writ petitions, connected WPMPs., are closed.
Government of Tamilnadu
Fort St. George, Chennai 9.
3.The Divisional Engineer
4.The Inspector of Police
Common Order in
W.P.Nos.2109 & 2401 of 2002
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