Madras High Court
D. Sathish vs Tahsildar, Sirkali Taluka And Others on 11 July, 1997
Equivalent citations: 1998(3)CTC215, AIR 1998 MADRAS 291
ORDER Judgement pronounced by C. Shivappa, J.
1. The appellant had challenged the order of the learned single judge, dated 20.6.1994, passed in W.P.No.10440 of 1994. In the writ petition, the appellant herein challenged the order passed under Section 6 of the Tamil Nadu Encroachment Act, 1905 (hereinafter referred to as the Act), on the ground that no prior notice was issued under Section 7 of the Act.
2. It is contended in this Appeal that the finding of the learned single judge that "though the impugned notice purports to be a notice under Section 6 of the Act, in substance, it is really a notice under Section 7 of the Act" is wrong.
3. Before taking proceedings under Section 6, the Collector of Tahsildar, or Deputy Tahsildar, or Revenue Inspector, or any authorised officer or any other officer specified by the State Government in that behalf shall cause to be served on the person reputed to be an unauthorised occupant, of a land, a notice specifying the land so occupied and calling on him to show cause why action should not be taken against him under Section 6 of the Act. But such notice need not be served in the case of any person unauthorisedly occupying the land, if he had previously been 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 Section 7. The non-issuance of notice was held to vitiate the proceedings taken under Section 6 of the Act by this Court in Hamsavalli v. Tahsildar, Vridhachalam, . 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 Section 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 Section 6, rather than insisting for showing cause why he should not be proceeded against under Section 6 of the Act. Sub-Clause(2) of Section 6 of the Act provides that by serving a notice in the manner provided under Section 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.
4. The learned single judge, in the order, has stated that nothing is stated in the affidavit whether any reply has been given by the petitioner to the said notice. When it is the contention of the appellant/petitioner that the impugned notice is under Section 6 of the Act and not under Section 7, the question of showing cause does not arise. While ordering confiscation in the event of not handing over, there is nothing to indicate in the order that a summary inquiry was conducted as contemplated under sub-clause (2) of Section 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 Section 7 of the Act and there is non-compliance of the requirements of law as has been contemplated under the Act.
5. The finding of the learned single judge that the impugned notice is the one under Section 7 is not sustainable and the same is liable to be set aside because, forcible eviction by revenue authorities without following the legal requirements is bad in law. The authorities are at liberty to take such steps in accordance with law, after complying with the requirements of Section 7 of the Act. The writ appeal is therefore allowed.