N. Periasamy Alias Koothanar And Others v. The Sub-Collector, Tiruppur And Another

1. All the above writ petitions have been filed praying to issue a Writ of Mandamus or any other appropriate writ, order or direction in the nature of a writ, forbearing the respondents and their subordinate officials from in any manner evicting the petitioners from the properties mentioned in the respective petitions, All located at Trichy Main Road, Selvarajapuram. Chinthamani Pudur Post, Palladam Taluk, Coimbatore District or demolishing the said buildings except under due process of law and to pass such other appropriate orders as this Court may deem fit and proper in the circumstances of the case.

2. The case of the petitioners is that the respondents without serving the necessary notices nor following the procedures, demolished some houses adjacent to the properties concerned with the above writ petitions on 17-9-1992 and when they attempted to lay hands on these houses, wherein the petitioners are either residing or have set up their trade or business, apprehending demolishing in an unauthorised manner at the hands of the respondents, the petitioners have resorted to file the above writ petitions seeking protection against taking arbitrary possession of their properties or demolishing the same by the respondents. It has been made clear in the petition that without resorting to the process of law, let not there be any disturbance to their possession or demolition of their properties. Facts may differ to a little extent regarding the nature of possession by the respective petitioners in all the above petitions and the rights of parties accrued all these days. But, their common legal grievance is that unless the procedure contemplated under the Tamil Nadu Encroachment Act, 1905 (Act II of 1905), the respondents cannot disturb them from out of their possession or evict them by any other means.

3. The learned Counsel for the petitioners in all the above writ petitions would contend that so far as W.P No. 14790 of 1991 is concerned, the father of the petitioner was in occupation of the land by constructing a titled shed and the Tahsildar, Tiruppur ordered eviction by his proceedings in B.M 21/76, dated 31-5-1967 holding that the land encroached by them is classified as “vari Poromboke” and hence it is objectionable;” that thereupon he preferred an appeal to the Sub Collector, Pollachi, but the same was rejected on 12-3-1968; that in the revision preferred before the revisional authority/District Revenue Officer, he called for a report from the Assistant Collector, Pollachi and after inspection, the Assistant Collector, Pollachi reported that “the encroachment is in a higher level, that normal floods will not affect the structure, that the portion of the odai at this place is fairely large and that sizable quantity of rain water will be flowing in it and that the encroachment is unobjectionable and may be allowed to continue.” The District Revenue Officer, citing the inspection note of the Assistant Collector, Pollachi writes in his order dated 8-5-1969 that “I have also inspected the encroachment. It is in a higher level and does not cause any hindrance to the vari. It is therefore treated as unobjectionable.”

4. The learned counsel for the petitioners would exhort that the conditions on ground have not undergone any change nor alterations effected and the position that was prevalent at the time that the District Revenue Officer passed his orders is still prevalent as of the rights of the petitioner and no interference need be necessary on the part of the lower revenue officials and it is their duty rather to respect the order of the learned District Revenue Officer; that in derogation of the said order or repugnant to the letter and spirit of the same the lower officials are bereft of any power to be exercised and the acts attempted to be perpetrated to evict the petitioner in this regard is nothing short of an act quite opposed to the law and rules. Nor, as it is in the rest of the above writ petitions, any opportunity had been afforded for this petitioner also to be heard, so as to set out valid defence.

5. Regarding to other writ petitions, the learned counsel for the petitioners would contend that neither the S. 7 notice nor the eviction order had been served on the petitioners and even though the order of the District Revenue Officer does not connect the properties covered under these three writ petitions, since they too are located within the same precincts, the remarks offered by the District Revenue Officer in W.P No. 14790 of 1991 would apply these cases as well; that these are all the cases, where without any opportunity and in violation of the high principles of natural justice, the respondents are attempting to dispossess the petitioners and unless this Court interferes by restraining the respondents from in any manner interfering with the peaceful possession and enjoyment of the respective properties borne by the writ petitions thereby restraining the respondents from domolishing the structures, all the petitioners will be subjected to unnecessary loss and untold hardships.

6. The learned counsel for the petitioners would also cite a judgment of the Division Bench of this Court delivered in Hamsavalli v. The Tahsildar, Vridhachalam reported in 1990 Writ LR 151 wherein the judgment of the High Court of Andhra Pradesh delivered in Abbayya v. State of Andhra Pradesh reported in AIR 1960 Andh Pra 134 has been referred to and it has been held therein that—

“More service of notice periodically under S. 7 is ineffective and does not give rise to a cause of action.”

7. The other judgment cited by the learned counsel for the petitioners is one delivered in P. Ramaswamy v. The Assistant Engineer, Highways and Rural Works Department, Nagapattinam reported in (1977) 1 Mad LJ 162 wherein it is held:

“Section 7 provides that before taking proceedings under S. 6, the person sought to be evicted should be served with a notice under S. 7. In this case, there being no notice under S. 7 served on the petitioners, the initiation of notice for summary eviction under S. 6 cannot be a proper compliance with the provisions of the said statute. Therefore the impugned memorandum issued by the respondent stands vitiated.”

8. The other judgment cited in support of the case of the petitioners for the same point is one delivered by the Division Bench of this Court in D. Sathish v. Tahsildar, Sirkali reported in 1998 (3) CTC 215 : (AIR 1998 Madras 291) wherein it is held (para 3 of AIR):

“The non-issuance of notice was held to vitiate the proceedings taken under S. 6 of the Act by this Court in Hamsavalli v. Tahsildar, Vridhachalam, AIR 1990 Madras 350. The notice reads that in the event of not vacating within 15 days including the superstructure and the crops on the property are liable to be confiscated. It is not same thing as calling upon him to show cause before a certain date why he should not be proceeded against under S. 6 of the Act. Section 6 of the Act empowers the authority to take such action to confiscate anything found on the land including crops or other products, raised or any building erected thereon, if not removed within stipulated time. The wordings of the impugned notice are fully in compliance with the requirements of S. 6, rather than insisting for showing cause why he should not be proceeded against under S. 6 of the Act. Sub-clause (2) of S. 6 of the Act provides that by serving a notice in the manner provided under S. 7 on the person reputed to be in occupation in the event of refusing to vacate, the officer so authorised may remove any such person, after holding a summary inquiry into the facts of the case, if he is satisfied that the resistance or obstruction was without any just cause and take such appropriate action against such person, including penal action.”

9. It is further held therein that (para 4)

“……there is nothing to indicate in the order that a summary inquiry was conducted as contemplated under sub-clause (2) of S. 6 of the Act, since the substance of the notice is directing to vacate the land within the stipulated time and therefore, it cannot be considered as a notice under S. 7 of the Act and there is non-compliance of the requirements of law as has been contemplated under the Act.”

10. Emphasizing on the point as to in what manner the service of the notice should be effected, the learned counsel for the petitioners would cite two more judgments, the first one delivered in Thangamuthu Gounder v. The Secretary Government of Tamil Nadu Social Welfare Department, Fort St. George, Madras reported in 1998 (2) CTC 625 and the second one is one delivered in P. Ramasamy v. The Tahsildar, Saidapet Taluk, Madras reported in 1992 Writ LR 459 : (AIR 1992 Madras 367). So far as the former judgment is concerned, it has been held therein that

“If, the notice has been served by affixture, naturally the endorsement should contain the reason for such affixure and also the same ought to have been attested by the neighbouring land owners…….”

11. It has been further held therein that

“So far as the notice for the award enquiry is concerned, it is the contention of the respondents that during enquiry under S. 5-A, it has been found that the petitioner is not the owner of the property and hence, no notice has been served for the award enquiry. It is not the jurisdiction of the Tahsildar to go into the title of the contesting claimants and give a finding in respect of title. If there is dispute over the title, it must be heard with regard to the ascertainment of the compensation and after ascertaining the compensation, the amount has to be deposited and reference has to be made under S. 30 of the Land Acquisition Act. When the Tahsildar himself has concluded that the petitioner has no title and as such, he is not entitled for any notice for the award enquiry, I am of the view that the entire proceedings is vitiated by assumption of the jurisdiction, which is not vested with the enquiry Tahsildar.”

12. In the latter judgment, a Division Bench of this Court emphasized that

“It is provided under S. 7 of the Tamil Nadu Land Encroachment Act 9 of 1965 (sic. Act 3 of 1905) that as regards the manner of service of notices under the Act is concerned, such notice shall be served in the manner proscribed in S. 25 of the Tamil Nadu Revenue Recovery Act, 1864 or in such other manner as the State Government by rules or orders under S. 8 may direct. According to S. 25 of the Revenue Recovery Act (1864) 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 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, 1854 has been invoked, we have to go by the express verbatism 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.”

13. Citing the above judgments, the learned counsel for the petitioners in all the writ petitions would conclude his argument saying that it is wholly unreasonable and illegal on the part of the respondents to have resorted to evict the petitioners in the manner not only bereft of any legal force or authority but also it is unbecoming on the part of the authorities concerned, that the District Revenue Officer's order cited supra still holds good so far as the entire area is concerned and since there was no sufficient time for the petitioners to exhaust their statutory remedy, they were left with no option but to resort to this Court for emergent orders to be obtained in safeguarding their possession and would pray for allowing all the above writ petitions.

14. On the contrary, the learned Additional Government Pleader appearing on behalf of the respondents would vehemently contend that it is an admitted fact on the part of the petitioners that S. 7 notices were served on them at some point of time and that in spite of such alert being made, the petitioners had been lethargic and never resorted to any legal protection based on the notices served on them and there is no point in loitering too much about non-service of the eviction order that was anticipated to have been passed thereafter, The learned Additional Government Pleader would also contend that it is a case of unauthorised occupation and admittedly barring the petitioner in W.P No. 14542 of 1992, wherein an assignment is said to have been made in favour of the petitioner concerned, as per the proceedings of the District Revenue Officer, Coimbatore on 23-1-1971 thereby assigning an extent of five cents of land in favour of the petitioner concerned: that all the other three petitioners are unauthorised occupants and they have no locus-standi to agitate anything in a valid manner and since the Tahsildar is directed to decide the matter summarily, the action that was instituted on his part was quite legal and the same cannot be termed otherwise than in in adherance with the Tamil Nadu Land Encroachments Act, 1905 and would thus justify the acts initiated and attempted to be perpetuated on the part of the respondents.

15. 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.

16. So far as these writ petitioners are concerned, the respondents do not at all seem to have attempted to follow these legal procedures that are to be observed mandatorily. Time and again, this Court has passed many judgment and orders tellingly pointing out that even not only for those in whose favour certain rights have accrued regarding the property in their occupation but also even in the case of unauthorised occupation or in the case of a recent occupier, the procedures laid down under the Tamil Nadu Land Encroachments Act, 1905 should be meticulously followed without which no evidence or assuming of possession could take place muchless in any other manner. In spite of that, the respondents have been so careless in their attempt to evict the petitioners and hence, at any cost, the manner in which the respondents have acted, cannot be approved since they are not in adherance of the procedures laid down by law and propounded by Courts.

17. The prayer of the petitioners is specific in the sense that they have sought protection only from being evicted at the hands of the respondents, except under due process of law and their apprehension is quite natural and genuine. Since there is clear cut violation of the principles of natural justice in not affording sufficient and reasonable opportunities for the petitioners either to make their reasonable representation or to participate in the enquiry that is to be held prior to resorting to evict them, the interference sought for by the petitioners has become imminent and quite necessary and in the above circumstances, it has become incumbent on the part of this Court to answer the prayers of all the petitioners in the writ petitions in the affirmative.

18. In result, all the above writ petitions succeed and they are allowed.

19. The respondents and their subordinate officials are hereby restrained from in any manner evicting the petitioner in W.P No. 14542 of 1992 from the buildings bearing Door Nos. 13/60M, 13/60M1, 13/60M2 and 13/60M3 (situated in S.F Nos. 426/1 and 426/2 of Kannampalayam Village), the petitioner in W.P No. 14626/92 from the buildings bearing Door Nos. 13/68 and 13/68-A: the petitioner in W.P No. 14790 of 1992 from the building bearing Door No. 13/60 and the petitioner in W.P No. 14791 of 1992 from the buildings bearing Door Nos. 13/59, 13/59-A, 13/59-B, 13/59-C and 13/59-D; or demolishing the said buildings all located at Trichy Main Road, Selvarajapuram, Chinthamani Pudur Post, Palladam Taluk, Coimbatore District, except under the procedures established by the Tamil Nadu Land Encroachments Act, 1905.

20. Consequently, W.M.P No. 20628 of 1992 and W.M.P No. 18940 of 1993 are closed.

21. However, in the circumstances of the case, there shall be no order as to costs.

22. Order accordingly.