Madras High Court
J. Udhayakumar vs The Block Development Officer on 26 February, 2025
Author: M.Sundar
Bench: M.Sundar
W.P. No.6573 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.02.2025
CORAM:
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MRS. JUSTICE K. GOVINDARAJAN THILAKAVADI
W.P.No.6573 of 2025 and W.M.P. No.7233 of 2025
J. Udhayakumar Petitioner
vs.
The Block Development Officer
Panchayat Union
Thurinjapuram
Tiruvannamalai Respondent
Writ Petition filed under Article 226 of the Constitution of India
seeking a writ of certiorari calling for the records of the respondent
dated 23.01.2025 made in Na.Ka.No.UA3/307/2025 and quash the
same.
For petitioner Mr. K. Venkatasubban
for M/s. Sarvabhauman Associates
For respondent Mr. S. Arumugam
Government Advocate
ORDER
[made by M.SUNDAR, J.]
Captioned main 'writ petition' (hereinafter 'WP' for the sake of
brevity) has been filed assailing a 'notice signed by sole respondent on
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23.01.2025 and bearing reference Na.Ka.No.UA3/307/2025'
(hereinafter 'impugned notice' for the sake of convenience and clarity).
2. Mr. K. Venkatasubban, learned counsel for writ petitioner,
is before us.
3. Learned counsel submitted that the impugned notice is
only a show cause notice but the respondent is putting the writ
petitioner under the pain of dispossession / coercive action without
even considering the writ petitioner's response much less making an
order under Section 6 of 'the Tamil Nadu Land Encroachment Act,
1905 (Tamil Nadu Act III of 1905)' (for brevity 'said 1905 Act').
4. Issue notice to sole respondent.
5. Mr. S. Arumugam, learned Government Advocate, accepts
notice for sole respondent and submits, on instructions, that there is
encroachment and therefore, said 1905 Act has been resorted to.
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W.P. No.6573 of 2025
6. Though it was not argued by learned counsel for writ
petitioner, we find from our records that sole respondent is not
competent to issue a notice under Section 7 of said 1905 Act and this
Court has dealt with the same point in W.P.Nos.1344,1347,1348 and
1372 of 2025 vide order dated 22.01.2025 which reads as follows:
'IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.01.2025
CORAM:
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MR.JUSTICE K.RAJASEKAR
W.P.Nos.1344,1347,1348 and 1372 of 2025
and
W.M.P.Nos.1592,1596,1599 and 1622 of 2025
C. Muniyammal Petitioner in WP No.1344/2025
K. Sivakumar Petitioner in WP No.1347/2025
D. Saravanan Petitioner in WP No.1348/2025
P.V. Raghuraman Petitioner in WP No.1372/2025
vs.
1. The District Collector
Vengikkal
Tiruvannamalai
Tiruvannamalai District
2. The Tahsildar
Polur Taluk Office
Polur
Tiruvannamalai District
3. The Block Development Officer
Polur Panchayat Block
Tiruvannamalai District
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W.P. No.6573 of 2025
4. The Revenue Inspector
Santhavasal
Polur Taluk
Tiruvannamalai District
5. The President
Padavedu Village Panchayat
Padavedu, Polur Taluk
Tiruvannamalai District Respondents in all WPs
W.P.No.1344 of 2025 filed under Article 226 of The Constitution
of India praying to issue a writ of certiorarified mandamus, to call for the
records on the file of the 5th respondent herein vide his impugned notice
dated 15.06.2023 issued under Section 7 of the Chennai III Act 1905 and
quash the same as highly illegal and further for a direction to the 2nd
respondent herein to survey the lands comprised in S.No.271/B, situated in
Padavedu Village and if found proper for dwelling to issue patta in favour
of the petitioner in view of the petitioner's representations dated
06.06.2022 and 02.07.2023.
W.P.No.1347 of 2025 filed under Article 226 of The Constitution
of India praying to issue a writ of certiorarified mandamus, to call for the
records on the file of the 5th respondent herein vide his impugned notice
dated 15.06.2023 issued under Section 7 of the Chennai III Act 1905 and
quash the same as highly illegal and further for a direction to the 2nd
respondent herein to survey the lands comprised in S.No.271/B, situated in
Padavedu Village and if found proper for dwelling to issue patta in favour
of the petitioner in view of the petitioner's representations dated
16.06.2022 and 02.07.2023.
W.P.No.1348 of 2025 filed under Article 226 of The Constitution
of India praying to issue a writ of certiorarified mandamus, to call for the
records on the file of the 5th respondent vide his notice dated 15.06.2023
issued under Section 7 of the Chennai III Act 1905 and quash the same as
illegal and further for a direction to the 2nd respondent to survey the lands
comprised in S.No.271/B, situated in Padavedu Village and if found
proper for dwelling to issue patta in favour of the petitioner in view of the
petitioner's representations dated 07.09.2022 and 02.07.2023.
W.P.No.1372 of 2025 filed under Article 226 of The Constitution
of India praying to issue a writ of certiorarified mandamus, to call for the
records on the file of the 5th respondent in the notice dated 15.06.2023
issued under Section 7 of the Chennai III Act 1905 and quash the same as
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W.P. No.6573 of 2025
illegal and further for a direction to survey the lands comprised in
S.No.271/B, situated in Padavedu Village and if found proper for dwelling
to issue patta in favour of the petitioner in view of the petitioner's
representations dated 26.05.2022 and 02.07.2023.
For petitioner in all WPs Mr. J. Ashok
For respondents in all WPs Mr. V. Ravi
Special Government Pleader
assisted by
Mr. M.S. Arasakumar
Government Advocate
COMMON ORDER
[made by M.SUNDAR, J.] Captioned four main 'Writ Petitions' {hereinafter 'WPs' in plural and 'WP' in singular for the sake of brevity} have been filed assailing four separate notices, all dated 15.06.2023, issued by R5 [The President, Padavedu Village Panchayat, Padavedu, Polur Taluk, Tiruvannamalai District] under Section 7 of 'the Tamil Nadu Land Encroachment Act, 1905 (Tamil Nadu Act III of 1905)' {hereinafter 'said 1905 Act' for the sake of brevity} which shall hereinafter be collectively referred to as 'impugned notices' for the sake of convenience and clarity.
2. Notwithstanding very many averments and grounds in the writ affidavit, Mr. J. Ashok, learned counsel on record for writ petitioners, predicated his campaign against impugned notices on one point and that one point is that impugned notices have been issued by an authority, who does not have power to issue the notice under Section 7 of said 1905 Act.
3. Issue notice to respondents.
4. Mr. V. Ravi, learned Special Government Pleader, accepts notice for all respondents.
5. Learned Special Government Pleader, on instructions, submitted that R5 is vested with power to issue notice under Section 7 of said 1905 Act.
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6. Considering the limited scope of the captioned main WPs, main WPs were taken up in the Admission Board with the consent of learned counsel on both sides.
7. Before we proceed further, we deem it appropriate to record certain facts, trajectory the captioned matters have taken thus far and facts that unfurled in hearing qua captioned WPs and an adumbration in this regard as follows:
(i) The subject matter of impugned notices is 'lands in S.No.271/B, Padavedu Village, Polur Taluk, Tiruvannamalai District' {hereinafter 'said lands' for the sake of brevity};
(ii) R5 in the captioned main WPs had earlier filed a writ petition in W.P.No.36811 of 2024 with a prayer to mandamus R1 to R4 before us (to be noted, R1 to R4 in the captioned main WPs are R1 to R4 in W.P.No.36811 of 2024 also) to remove alleged encroachment/s in said lands on the ground that the said lands have been classified as 'Kuttai Poromboke'. To be noted, writ petitioner in captioned W.P.No.1344 of 2025 [C.Muniyammal, Wife of Chinnakulandai], writ petitioner in W.P.No.1347 of 2025 [K. Sivakumar, Son of Kuppan], writ petitioner in W.P.No.1348 of 2025 [D.Saravanan, Son of Dhanapal] and writ petitioner in W.P.No.1372 of 2025 [P.V. Raghuraman, Son of Vasu] are RR 15, 10, 13 and 8 respectively in W.P.No.36811 of 2024. This W.P.No.36811 of 2024 came to be disposed of by this Court in and by an order dated 04.12.2024 which reads as follows:Page Nos.6/20
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(iii) Aforementioned 04.12.2024 order of this Court speaks for itself and it now comes to light that 'notices already issued' are inter alia impugned notices;
(iv) Impugned notices were not brought to the notice of this Court when 04.12.2024 order was made though it was submitted that notices have already been issued and that notices already issued were notices under Section 131(2) of 'the Tamil Nadu Panchayats Act, 1994 (Tamil Nadu Act 21 of 1994)' {hereinafter 'said Act' for the sake of brevity, convenience and clarity}. Therefore, this Court, in paragraph no.8 of aforereferred 04.12.2024 order, after recording the submission that notices have already been issued, in paragraph no.9, directed notices under said 1905 Act to be issued by R2 but it now comes to light that notices had already been issued under said 1905 Act and that the same have been issued by R5;
(v) It is also submitted that writ petitioners have responded to impugned notices vide identical responses, all dated 02.07.2023. To be noted, responses placed before us are unsigned and there are no acknowledgments. One of the identical responses i.e., response dated 02.07.2023 in the first captioned WP, viz., W.P.No.1344 of 2025 is as follows:Page Nos.13/20
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8. A careful perusal of the aforementioned narrative which captures facts, trajectory thus far and what unfurls from the case files, brings to light that as early as in July of 2023 (02.07.2023), writ petitioners have responded to impugned notices and have specifically raised the point that R5 cannot issue the impugned notices and that such a plea is taken on legal advice.
9. Be that as it may, it is categorically submitted by learned counsel for writ petitioners in all four captioned WPs that after writ petitioners' identical responses dated 02.07.2023 to impugned notices, no orders have been made under Section 6 of said 1905 Act. This categoric submission is recorded.
10. We find from our research that a similar question arose in W.P.(MD)No.16494 of 2023 [Viswanathan Vs. District Collector and others] and a Hon'ble Division Bench of Madurai Bench of this Court, in and by an order dated 10.07.2023, has recorded the stated position of learned State Counsel made on instructions that there is no Government Order specifically authorizing Block Development Officer [BDO] or Village Panchayat President to initiate action under Section 7 of said 1905 Act. It appears that Viswanathan case has been given a legal quietus as we find from our further research that the matter does not appear to have been carried to Hon'ble Supreme Court.
(underlining done by us for ease of reference)
11. We are informed by learned Special Government Pleader that the tenure of office of R5 has also lapsed on 05.01.2025.
12. Before we proceed further, we deem it appropriate to capture the obtaining legal position or in other words, the obtaining Section 7 of said 1905 Act. Section 7 of said 1905 Act reads as follows:
'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 authorized 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.Page Nos.15/20
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Provided that no such notice shall be necessary in the case of any person unauthorisedly occupying any land, if he has 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 5-B 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 or 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 or Deputy Tahsildar or authorised officer having jurisdiction, as the case may be.'(putting in a portion of extract in different font and underlining of same is by this Court for ease of reference).
13. In the aforesaid Section 7 of said 1905 Act, the expression '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' was substituted in place of 'any officer of the Highways Department, not below the rank of a Section Officer and not being an authorised officer'. This is in and by way of Amendment Act captioned 'The Tamil Nadu Land Encroachment (Amendment) Act, 1975 (Tamil Nadu Act No.20 of 1975)' {hereinafter 'said 1905 Amendment Act' for the sake of brevity}. We find that said 1905 Amendment Act is a conditional legislation. This is vide sub-section (2) of Section 1 which reads as follows:
Page Nos.16/20https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/03/2025 03:51:33 pm ) W.P. No.6573 of 2025 '1. Short title and commencement - (1) ................... (2) It shall come into force on such date as the State Government may, by notification, appoint.'
14. The said 1905 Amendment Act received assent of President on 02.07.1975, it was published in Gazette on 08.07.1975 and it kicked in (came into force) on and from 01.10.1976.
15. Be that as it may, following Viswanathan case supra, we deem it appropriate to set aside the impugned notices but we make it clear that all rights and contentions of R2 [The Thasildar, Polur Taluk Office, Tiruvannamalai District] are preserved for issuing fresh notice/s under Section 7 of said 1905 Act.
16. Learned Special Government Pleader submits that R2 will issue fresh notice under Section 7 of said 1905 Act as expeditiously as the official business of R2 would permit but in any event within one week from today i.e., by 29.01.2025. This submission of learned Special Government Pleader is recorded.
17. When Section 7 notice is issued by R2, it is open to writ petitioners to send signed responses under due acknowledgment (if so advised and if so desired) within the time specified therein. Thereafter, an order under Section 6 of said 1905 Act or other proceedings as adumbrated in said 1905 Act shall follow.
18. Learned Special Government Pleader, adverting to earlier order dated 04.12.2024 and current scenario, submits that the entire exercise will be completed as expeditiously as the business of R2 would permit but in any event within eight weeks from today i.e., on or before 19.03.2025.
19. We make it clear that impugned notices are set aside solely on lack of jurisdiction (qua R5) point and we are not expressing any view or opinion on the merits of the matter i.e., on the merits of encroachment or contra contention of writ petitioners. Therefore, when fresh Section 7 notices are issued, the matter will be considered on its own merits and in accordance with law untrammeled by any observation made in this order.
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(M.S., J.) (K.R.S., J.)
22.01.2025'
Paragraph 10 of aforementioned order is of relevance.
7. In the light of the narrative thus far, the following order is made:
i. Impugned notice is set aside solely on the ground of lack of jurisdiction on the part of sole respondent;
ii. As a corollary to the above, we deem it appropriate to write that we have not expressed any view or opinion on the merits, much less on the alleged encroachment;
iii. We preserve all the rights and contentions of the State to initiate proceedings afresh by issue of notice by a competent authority i.e., orders qua Section 7 of said 1905 Act; and iv. When the above is resorted to, we equally preserve all the rights and contentions of the writ petitioner to send a suitable response and the procedure contemplated under said 1905 Act shall be followed.
8. This Court has repeatedly held that said 1905 Act is a self Page Nos.18/20 https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/03/2025 03:51:33 pm ) W.P. No.6573 of 2025 contained Code. The reason inter alia is that there is a provision to have the alleged encroacher show caused under Section 7 of said 1905 Act followed by an order (considering the cause shown). The order under Section 6 is appealable under Section 10 (District Collector is the appellate authority) and there is a provision for further revision to the Government under Section 10-A (Section 10-A(3) to be precise) of said 1905 Act. Pending appeal / revision, there is a provision for making interim prayer vide Section 10-B of said 1905 Act. Therefore, said 1905 Act is a self contained Code in every sense of the expression.
9. In the light of the narrative thus far, captioned WP is allowed albeit with aforementioned observations and preservation of rights in the aforesaid manner. Consequently, captioned writ miscellaneous petition thereat is disposed of as closed. There shall be no order as to costs.
(M.S., J.) (K.G.T., J.)
26.02.2025
cad
Index : Yes/No
NC : Yes/No
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W.P. No.6573 of 2025
M.SUNDAR, J.
and
K. GOVINDARAJAN THILAKAVADI, J.
cad
To:
The Block Development Officer
Panchayat Union
Thurinjapuram
Tiruvannamalai
W.P. No.6573 of 2025
26.02.2025
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