Madras High Court
Thankamma Koshy vs The Government Of Tamil Nadu on 18 October, 2016
Author: R.Mahadevan
Bench: Sanjay Kishan Kaul, R.Mahadevan
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 18.10.2016 Coram: The Honourable Mr.SANJAY KISHAN KAUL, CHIEF JUSTICE and The Honourable Mr.Justice R.MAHADEVAN W.P.No.6818 of 2014 Thankamma Koshy ... Petitioner Versus 1.The Government of Tamil Nadu rep. by its Secretary, Revenue Department, Fort St.George, Chennai 600 009. 2.The District Collector, Kancheepuram District. 3. The District Revenue Officer, Kancheepuram District. 4.The Tahsildar, Alandur Taluk and Nanganallur Kancheepuram District, Chennai 600065. 5.The Revenue Inspector, Office of the Revenue, Alandur Pirka, Alandur Taluk, Chennai 600 065. ... Respondents Petition filed under Article 226 of the Constitution of India praying for the issue of a Writ of Certiorari, to call for the records of the 4th respondent's proceedings under Section 7 of the Tamil Nadu Land Encroachment Act, 1905 (Tamil Nadu Act 3 of 1905) dated 20.01.2012 and affixed on the petitioner's outer gate on 01.03.2012 and the records of the 5th respondent's proceedings, under Section 6 of the Tamil Nadu Land Encroachment Act, 1905 (Tamil Nadu Act 3 of 1905) dated 30.01.2012 and affixed on the petitioners outer gate on 04.03.2012 and to quash the same as illegal and invalid. For Petitioner ::: Mr.Ashok Menon For Respondents ::: Mr.T.N.Rajagopalan Special Government Pleader for R.1 to R.5 O R D E R
(The Order of the Court was made by The Hon'ble The Chief Justice) The petitioner and her husband claimed to have purchased the vacant land in GST Road, St.Thomas Mount, Chennai 600 016 with premise No.4/17 vide a registered sale deed dated 04.01.1971. A dwelling unit is stated to have been constructed on the same, for which the approval was granted by the Executive Officer of the cantonment board in 1972. The peaceful existence of the petitioner and her family is stated to have been disturbed by the visit of the Chennai Metro Rail Limited employees on 15.02.2012 at about 11.00 am, who sought to take over possession of 800 square feet of her land for the purpose of Chennai Metro Rail. The petitioner filed W.P.No.4024 of 2012 seeking forbearance of the respondents from in any manner disturbing the peaceful possession of the petitioner of any part of her premises. Interim order of status quo was granted on 21.02.2012.
2. Notice is stated to have been affixed on the outer gate of the petitioner's premises on 01.03.2012 at about 8.30 p.m by the 5th respondent, which is dated 20.01.2012, purportedly under Section 7 of the Tamil Nadu Encroachment Act, 1905 asking the petitioner, if she was so interested, to appear before the 5th respondent or 2nd respondent on any date before 27.01.2012. The notice called upon the petitioner to disclose why she should not be dispossessed. Another notice is stated to have been affixed on the outer gate of the petitioner's premises on 04.03.2012 at about 8.00p.m., purportedly being an order of the 4th respondent passed under Section 6 of the said Act, calling upon the petitioner to vacate the house within seven days.
3. Writ Petition No.4024 of 2012 ultimately came to be disposed of on 07.03.2012 as the petitioner undertook to hand over possession of the land to the extent required by the Chennai Metro Rail Ltd., while insofar as the notices under Sections 7 and 6 of the said Act are concerned, the petitioner was left free to proceed in accordance with law.
4. Thus, the present writ petition has been filed seeking to quash the notice issued under Section 7 of the said Act dated 20.01.2012 and the order passed under Section 6 of the said Act dated 30.01.2012.
5. No counter affidavit has been filed for the last four years, despite opportunity granted. Thus, the factual averments would be treated as unrebutted.
6. The first aspect which emerges is that as per the petitioner, the notice under Section 7 of the said Act, though purportedly dated 20.01.2012, was affixed on the outer gate of the petitioner's premises on 01.03.2012, while the time for the petitioner to make her representation was only till 27.01.2012, thus negating the very purpose of the notice under Section 7 of the said Act. This being the position, naturally the subsequent order passed under Section 6 of the said Act against the petitioner must go.
7. We would have let the matter rest at that and remitted the matter back in pursuance to the notice under Section 7 of the said Act, but for certain other material facts.
8. Learned senior counsel accepts that a sale deed has been registered in favour of the petitioner. It is his submission that the larger part of the land measuring 6588 Sq.Ft., comes under the category of 'time expired lease land.' This land was originally leased out for 99 years to one C.L.Chinnu Mudali and the lease had expired even on 01.07.1923. Thereafter, there was no renewal, but also there were no steps taken to take over possession. Various persons came into possession of the property and have been residing there in pursuance to the registered document of title. Suffice to say, this would give rise to various rights, including the possibility of the defence of adverse possession, were proceedings to be initiated for recovery of possession. In these facts, the process of seeking dispossession of the petitioner through recourse to the provisions of the said Act cannot thus be appreciated.
9. The result is that both the notice under Section 7 of the said Act dated 20.01.2012 and the order under Section 6 of the said Act dated 30.01.2012 are quashed and in case the respondents are desirous of obtaining possession of the land, they will have to take recourse to civil proceedings for cancellation of the sale deed executed in favour of the petitioner and other relief and that would naturally be subject to all defences as are available to the petitioner as to title or by way of adverse possession, as the petitioner may choose.
10. The writ petition accordingly stands allowed, leaving the parties to bear their own costs. Consequently, connected miscellaneous petition is closed.
Index:Yes/no (S.K.K.,CJ) (R.M.D.,J.) Internet:Yes 18.10.2016
ksr
To
1.The Secretary, Revenue Department,
Fort St.George, Chennai 600 009.
2.The District Collector, Kancheepuram District.
3. The District Revenue Officer, Kancheepuram District.
4.The Tahsildar, Alandur Taluk and Nanganallur
Kancheepuram District, Chennai 600065.
5.The Revenue Inspector, Office of the Revenue,
Alandur Pirka, Alandur Taluk, Chennai 600 065.
The Hon'ble The Chief Justice
and
R.Mahadevan, J
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ksr
W.P.No.6818 of 2012
18.10.2016