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2013 DIGILAW 103 (MAD)

Rani v. Vesaiyan @ Mookan

2013-01-04

T.MATHIVANAN

body2013
ORDER This memorandum of civil revision has been directed against the order rejecting the plaint, dated 17.12.2013 and made in an unnumbered suit on the file of the learned District Munsif at Harur. 2. The revision petitioner herein is the plaintiff in the unnumbered suit whereas the respondents 1 to 5 are the defendants 1 to 5 therein. 3. The revision petitioner seems to have filed the above unnumbered suit on the file of the learned District Munsif, Harur as against the respondents herein seeking the relief of permanent injunction restraining the respondents/defendants not to evict her from the suit property against law. 4. When the suit came to be numbered on 17.12.2003, the learned District Munsif, Harur has rejected the plaint on the ground that the civil court does not have jurisdiction to entertain the suit as it is barred by the provisions of Section 14 of the Tamil Nadu Encroachment Act, 1905, amended by Act 1 of 1996. 5. Challenging the correctness of this order, the present revision is filed by the revision petitioner. 6. Heard Mr. S. Kanniah, learned counsel appearing for the petitioner/plaintiff and Mr.T. Jayaramaraj, learned Govt. Advocate appearing for the respondents 2 to 5. Despite of service of notice, the first respondent has not chosen to appear. 7. What Mr.S.Kanniah, learned counsel for the revision petitioner would contend is that no proceedings are pending against the revision petitioner under the Land Encroachment Act and therefore, the trial Court has committed a serious error in holding that the suit is barred by Section 14 of the Tamil Nadu Land Encroachment Act. 8. It is apparent from the records that nothing is available to show that certain proceedings were initiated as against the petitioner as contemplated under Section 6 of the Tamil Nadu Land Encroachment Act, 1905. 9. The learned Govt. Advocate has also conceded this fact. 10. Keeping in view of the above context, this Court finds that it may better to extract the provisions of Section 14 of the Tamil Nadu Land Encroachment Act, 1905. It reads as under:- "14. 9. The learned Govt. Advocate has also conceded this fact. 10. Keeping in view of the above context, this Court finds that it may better to extract the provisions of Section 14 of the Tamil Nadu Land Encroachment Act, 1905. It reads as under:- "14. Bar of jurisdiction of Courts -Notwithstanding anything contained in any law for the time being in force no order passed or proceeding taken by any officer or authority or the State Government under this Act shall be called in question in any court, in any suit or application and no injunction shall be granted by any court in respect of any action taken or to be taken by such officer or authority or the State Government in pursuance of any power conferred by or under the Act." 11. As afore stated, hitherto, the respondents have neither passed any order nor initiated any proceedings as against the revision petitioner/plaintiff under any of the provisions of the Tamil Nadu Land Encroachment Act, 1905 much less under Section 6 of the Act. 12. It is more significant to note here that the revision petitioner/plaintiff has not questioned any order passed or proceedings taken by the respondents in the present suit. 13. What Section 14 of the Act says is that no order passed or proceedings taken by any officer or authority or the State Government shall be called in question in any court, in any suit or application and no injunction shall be granted by any court in respect of any action taken or to be taken by such officer or the authority or the State Government in pursuance of any power conferred by or under this Act. 14. In the unnumbered suit, the revision petitioner/plaintiff has sought a bare injunction against the respondents. 15. 14. In the unnumbered suit, the revision petitioner/plaintiff has sought a bare injunction against the respondents. 15. According to the petitioner, her father-in-law had been in possession of the suit property for more than 50 years and subsequently, her husband had been in possession and enjoyment of the suit property and after his demise the revision petitioner/plaintiff herself has been in possession and enjoyment of the suit property for about 20 years continuously without any interruption and therefore, she claims that necessary penal taxes have been paid to the Government and under these circumstances, on the instigation of the first respondent/defendant, the remaining respondents being V.A.O., Revenue Inspector, Kadathur, the Tahsildar, Pappireddi Patti, have taken the law into their hand and deliberately attempted to raze the existing crops in the land and thereby, made an attempt to evict the revision petitioner/plaintiff. 16. Section 6 of the Act contemplates, "Liability of person unauthorisedly occupying land to summary eviction, forfeiture of crops, etc." 17. Sub-section 2 of Section 6 contemplates the "Mode of Eviction". 16. Section 6 of the Act contemplates, "Liability of person unauthorisedly occupying land to summary eviction, forfeiture of crops, etc." 17. Sub-section 2 of Section 6 contemplates the "Mode of Eviction". It enacts as under:- "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 reported to be in occupation or his agent requiring him within such time as the Collector (or the Tahsildar or Deputy Tahsildar or the authorized 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 or Deputy Tahsildar or authorized 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 authorized 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, 1860 (Central Act XLV of 1860), in respect of the same facts." 18. As per Section 7 of the Act prior notice is very much essential. 19. But in so far as the instant case on hand is concerned, the learned Govt. Advocate has submitted that no such prior notice was required to be given to the petitioner/ plaintiff under Section 7 of the Tamil Nadu Land Encroachment Act, 1905. 20. The remedy of permanent injunction which is sought for by the petitioner/ plaintiff is to be granted only by common law. Advocate has submitted that no such prior notice was required to be given to the petitioner/ plaintiff under Section 7 of the Tamil Nadu Land Encroachment Act, 1905. 20. The remedy of permanent injunction which is sought for by the petitioner/ plaintiff is to be granted only by common law. Under these circumstances, it cannot be stated that the civil court does not have jurisdiction to entertain the suit as no order or proceeding passed by the respondents has been questioned in this suit. 21. This Court also finds that it may be better to have reference to the decision of the Division Bench of this Court in V. Arunagiri and others vs. The Divisional Engineer, National Highways, Thiruvannamalai and another ( 1999 (1) MLJ 308 ). 21a. In the said decision, the Division Bench of this Court, in paragraph 14 has held that, "having regard to the facts which are not in dispute in these appeals and in the light of the law laid down in the aforementioned decisions, we are of the view that the respondents cannot take action against the appellants to demolish their houses, which are in their occupation, without issuing notice under Section 7 of the Act, so as to pass an order under Section 6 of the Act to evict them or to demolish their houses. 22. Keeping in view of the above facts, the impugned order passed by the learned trial Judge rejecting the plaint itself is absolutely wrong because sufficient opportunity ought to have been given to the plaintiff to put forth her case in complete shape and the other side have also to be given an opportunity to rebut the claim made by the petitioner/plaintiff. Without giving sufficient opportunity and without considering the nuance of the provisions of Section 14 of the Act, the learned District Munsif has erroneously concluded that the civil court did not have jurisdiction to entertain the suit. For the foregoing reasons, the revision petition is liable to be allowed. Accordingly, the revision petition is allowed and the learned District Munsif, Harur, is hereby directed to take the suit on his file and number the same and proceed further in accordance with law. However, there will be no order as to costs. Connected C.M.P. is closed.