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2010 DIGILAW 482 (MAD)

S. Xavier v. The District Collector

2010-02-03

B.RAJENDRAN, PRABHA SRIDEVAN

body2010
Judgment :- MRS. PRABHA SRIDEVAN, J. The petitioners in both the writ petitions claim to be agriculturists, each of them cultivating an extent of 0.39.5 ares of land comprised in Survey No.135/1, Karkalathur Village, Sivagangai District. Both the writ petitioners claim that their ancestors were cultivating the above said lands without any interruption. They have received B Memos and they also paid the amounts therein, accordingly. According to the petitioners, their lands are irrigated by the adjacent Chinnakaraiyan, Periyakaraiyan Kanmai. The kanmai was damaged during the year 1957 and during the settlement survey, it was wrongly classified as "Punja Land". They gave representation to the Government to reclassify it as Nanja land but till date no action has been taken by the 1st respondent. In 1971, a dispute arose between the farmers of the petitioners village and the farmers of the adjacent Marudavayal Village. A suit was filed in O.S.No.480/1971 to restrain the farmers of the petitioners village from intercepting the water that flows through the disputed land. The trial court decreed the suit, against which an appeal was filed by the ryots of the petitioners village. The appeal was allowed. According to the petitioners, in the appeal, the appellate judge has given a finding that there is no Odai in Survey No.135/1. Learned counsel for the petitioners submits that one of the defendants in the suit is the father of the petitioner in W.P.(MD)No.1136/2010. 2. Thereafter, on 28.08.2009, a notice under section 7 of the Tamil Nadu Land Encroachment Act, 1905 (in short "the Act") was issued. The grievance of the petitioners is that the notice does not specify to which authority the explanation to the show cause notice should be submitted and therefore they could not submit their explanations and consequently notice under Section 6 was also issued directing eviction and classifying the land as Odai Poramboke. 3. According to the learned counsel for the petitioners, the actual classification of the land has not been taken note of by the respondents and further, because Section 7 notice did not specify to whom the explanation has to be given, they have been denied the right of making their submissions to protect their possession. 4. Learned Special Government Pleader took notice. 4. Learned Special Government Pleader took notice. 5.On a reading of a copy of Section 7 notice, enclosed in the typed set of papers, we find that the objection of the learned counsel for the petitioners that the notice does not specify to whom the reply to the show cause should be given is correct. Therefore, the learned Special Government Pleader submitted that the respondents will consider the explanation that is now been given. 6. Sections 6 and 7 of the Act read as follows: "6.Liability of person unauthorisedly occupying land to summary eviction, forfeiture of crops etc.-(1) Any person unauthorisedly occupying any land for which he is liable to pay assessment under section 3 or section 3-A may be summarily evicted by the Collector or subject to his control, by the Tahsildar, Deputy Tahsildar or any other officer authorised by the State Government in this behalf (hereinafter referred as the Authorised Officer) and any crop or other product raised on the land shall be liable to forfeiture and any building or other construction erected or anything deposited thereon shall also, if not removed by him after such written notice as the Collector or subject to his control, by the Tahsildar, Deputy Tahsildar or authorised Officer may deem reasonable, be liable to forfeiture. Forfeitures under this section shall be adjudged by the Collector or subject to his control by the Tahsildar, Deputy Tahsildar or authorised Officer and any property so forfeited shall be disposed of as the Collector or subject to his control the Tahsildar, Deputy Tahsildar or authorised officer may direct. Forfeitures under this section shall be adjudged by the Collector or subject to his control by the Tahsildar, Deputy Tahsildar or authorised Officer and any property so forfeited shall be disposed of as the Collector or subject to his control the Tahsildar, Deputy Tahsildar or authorised officer may direct. (2)An eviction under this section shall be made in the following manner namely:- By serving a notice in the manner provided in section 7 on the person reputed to be in occupation or his agent requiring him within such time as the Collector or the Tahsildar or Deputy Tahsildar or Authorised Officer may deem reasonable after receipt of the said notice to vacate the land, and, if such notice is not obeyed, by removing or deputing a subordinate to remove any person who may refuse to vacate the same, and if the officer removing any such person shall be resisted or obstructed by any person, the Collector or the Tahsildar, Deputy Tahsildar or authorised officer shall hold a summary inquiry into the facts of the case, and if satisfied that the resistance or obstruction was without any just cause and that such resistance or obstruction still continues, may issue a warrant for the arrest of the said person and on his appearance commit him to close custody in the office of the Collector or of any Tahsildar or Deputy Tahsildar or authorised officer for such period not exceeding 30 days as may be necessary to prevent the continuance of such obstruction or resistance or may send him with a warrant in the form of the schedule for imprisonment in the civil jail of the district for the like period: Provided that no person so committed or imprisoned under this section shall be liable to be prosecuted under sections 183, 186 or 188 of the Indian Penal Code in respect of the same facts. (3)Any authorised officer taking proceedings under this section shall 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 having jurisdiction. 7. (3)Any authorised officer taking proceedings under this section shall 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 having jurisdiction. 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 authorised 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. Such notice shall be served in the manner prescribed in section 25 of the Tamil Nadu Revenue Recovery Act, 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 had 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, Deputy Tahsildar or authorised person 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, Deputy Tahsildar or authorised person having jurisdiction, as the case may be." 7. Therefore, when notice is served by the Revenue Inspector, the person to show cause against the notice is Collector, Tahsildar, Deputy Tahsildar or authorised person having jurisdiction, as the case may be and, therefore, the notice should indicate to which authority the person receiving the notice must show cause. If this is not satisfied, the valuable right of the individual is taken away. 8. If this is not satisfied, the valuable right of the individual is taken away. 8. In these circumstances, we allow the writ petitions and direct the 2nd respondent to consider the reply dated 31.12.2009, given by the petitioner in W.P.(MD)No.1136/2010 and the reply, dated 05.01.2010, given by the petitioner in W.P.(MD)No.1137/2010 and pass orders in accordance with law. Until the 2nd respondent passes orders, no steps shall be taken pursuant to the impugned notices under Section 6, which we have have now set aside. The Government shall also ensure that Notice Forms are in accordance with the provisions of the Act. Connected M.P.(MD)NO.1 of 2010 in both the writ petitions are closed. No order as to costs.