Madras High Court
P.Kalyanram vs The District Collector on 22 January, 2025
Author: M.Sundar
Bench: M.Sundar
W.P.No.1293 of 2025
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.No.1293 of 2025
and
W.M.P.No.1541 of 2025
P.Kalyanram
S/o.Pannalal ... Petitioner
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.
4. The Revenue Inspector
Santhavasal
Polur Taluk
Tiruvannamalai District.
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W.P.No.1293 of 2025
5. The President
Padavedu Village Panchayat
Padavedu, Polur Taluk
Tiruvannamalai District. ... Respondents
Prayer :
Writ Petition 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
10.07.2023 issued under Section 6 of the Chennai III Act 1905 and quash
the same as highly illegal and further for a direction directing 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 19.08.2022
and 14.07.2023.
For Petitioner : Mr.J.Ashok
For Respondents : Mr.V.Ravi,
Special Government Pleader
assisted by
Mr.M.S.Arasakumar
Government Advocate
ORDER
[Order of the Court was made by M.SUNDAR, J.,]
Read this in conjunction with and in continuation of common order
made today (22.01.2025) in three writ petitions namely, W.P.Nos.1291, 1296
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W.P.No.1293 of 2025
and 1300 of 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.1291, 1296 & 1300 of 2025
and
W.M.P.Nos.1537, 1545 & 1550 of 2025
S.Vijayakumar
S/o.Subramani ...
Petitioner
in W.P.No.1291 of
2025
P.Palani
S/o.Ponnusamy ...
Petitioner
in W.P.No.1296 of
2025
G.Yasotha ...
Petitioner
in W.P.No.1300 of
2025
Vs.
1. The District Collector
Vengikkal
Tiruvannamalai
Tiruvannamalai District.
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W.P.No.1293 of 2025
2. The Tahsildar
Polur Taluk Office
Polur
Tiruvannamalai District.
3. The Block Development Officer
Polur Panchayat Block
Tiruvannamalai District.
4. The Revenue Inspector
Santhavasal
Polur Taluk
Tiruvannamalai District.
5. The President
Padavedu Village Panchayat
Padavedu, Polur Taluk
Tiruvannamalai District. ...
Respondents
in all WPs
Prayer :
Writ Petition No.1291 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 directing 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 13.05.2022 and 02.07.2023.
Writ Petition No.1296 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
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W.P.No.1293 of 2025
Chennai III Act 1905 and quash the same as 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 05.07.2022 and 02.07.2023.
Writ Petition No.1300 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 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 08.08.2022 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
[Order of the Court was made by M.SUNDAR, J.,] Captioned three main 'Writ Petitions' {hereinafter 'WPs' in plural and 'WP' in singular for the sake of brevity} have been filed assailing three 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 Page Nos.5/22 https://www.mhc.tn.gov.in/judis W.P.No.1293 of 2025 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.
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 is 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.1291 of 2025 [S.Vijayakumar, Son of Subramani], writ petitioner in W.P.No.1296 of 2025 [P.Palani, Son of Ponnusamy] and writ petitioner in W.P.No.1300 of 2025 [G.Yasotha] are R11, R9 and R18 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.6/22
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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 afore-referred 04.12.2024 order, after recording the submission that notices have already been issued, in paragraph No.9, directed notices under said 1905 Act 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 namely, W.P.No.1291 of 2025 is as follows:
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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 three 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.
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 Page Nos.16/22 https://www.mhc.tn.gov.in/judis W.P.No.1293 of 2025 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 (Tamil Nadu Act II of 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 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 Page Nos.17/22 https://www.mhc.tn.gov.in/judis W.P.No.1293 of 2025 follows:
'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.
Captioned WPs are disposed of in the aforesaid manner. Consequently, Writ Miscellaneous Petitions thereat are disposed of Page Nos.18/22 https://www.mhc.tn.gov.in/judis W.P.No.1293 of 2025 as closed. There shall be no order as to costs.'
2. Considering the limited scope of the captioned 'Writ Petition' {hereinafter 'WP' for the sake of brevity} with the consent of learned counsel for writ petitioner and learned State Counsel, main WP was taken up in the Admission Board with the consent of both sides.
3. The difference in the captioned matter i.e., difference qua aforementioned three WPs is that notice / order under Section 6 of said 1905 Act has been directly issued without resorting to Section 7 of said 1905 Act but the jurisdictional point will stand governed by S.Vijayakumar and two others case [W.P.Nos.1291, 1296 and 1300 of 2025] which in turn follows Viswanathan case. Therefore, the impugned notice / order dated 10.07.2023 issued by R5 is set aside without expressing any view or opinion on the merits of the matter and in all the other aspects, the aforementioned S.Vijayakumar and two others case will apply. In other words, paragraphs and time lines in S.Vijayakumar and two others case will apply to the instant case also.
Page Nos.19/22https://www.mhc.tn.gov.in/judis W.P.No.1293 of 2025 Captioned WP disposed of in the aforesaid manner. Consequently, connected Writ Miscellaneous Petition is disposed of as closed. There shall be no order as to costs.
(M.S.,J.) (K.R.S.,J.)
22.01.2025
Index : Yes / No
Neutral Citation : Yes / No
Speaking order / Non-speaking order
mk
P.S. Though captioned WP is disposed of, Registry is directed to list the captioned WP under the cause list caption 'FOR REPORTING COMPLIANCE' on 02.04.2025.
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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.
4. The Revenue Inspector Santhavasal Polur Taluk Tiruvannamalai District.
5. The President Padavedu Village Panchayat Padavedu, Polur Taluk Tiruvannamalai District.
Page Nos.21/22https://www.mhc.tn.gov.in/judis W.P.No.1293 of 2025 M.SUNDAR, J., and K.RAJASEKAR, J., mk W.P.No.1293 of 2025 22.01.2025 (4/4) Page Nos.22/22 https://www.mhc.tn.gov.in/judis