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2025 DIGILAW 695 (MAD)

Vinoth Subramaniyan S/o. Subramaniyan v. District Collector Collector Office Erode

2025-01-30

K.RAJASEKAR, M.SUNDAR

body2025
ORDER : [Order of the Court was made by M.SUNDAR, J. ,] Captioned five main 'Writ Petitions' {hereinafter 'WPs' for the sake of brevity} have been filed with prayers for issue of writ of certiorari qua 'five notices / orders, all signed by R6 on 10.01.2025' {hereinafter 'impugned orders' collectively for the sake of brevity, convenience and clarity}. 2. Adverting to five impugned orders, Mr.P.V.Balasubramaniam, learned Senior Counsel, instructed by Mr.Roshan Atiq .M, counsel on record for writ petitioners submits that all five impugned orders were served on the respective noticees (writ petitioners) on 22.01.2025. In his campaign against impugned orders, learned Senior Counsel submits that impugned orders are wholly without jurisdiction as R6 is not one of four authorities, who are empowered to issue / pass impugned orders. 3. Issue notice. 4. Mr.T.K.Saravanan, learned Government Advocate accepts notice for all 7 respondents and submits on instructions that R6 is not an 'authorized officer' within the meaning of Section 6 of 'the Tamil Nadu Land Encroachment Act, 1905 (Tamil Nadu Act III of 1905)' {hereinafter 'said 1905 Act' for the sake of brevity}. This fair submission makes the legal drill qua captioned main WPs simple and inter alia therefore, with the consent of learned counsel on both sides, main WPs are taken up in the Admission Board itself. 5. As regards Section 6 of said 1905 Act, the same reads 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 or Deputy Tahsildar or any other officer authorized by the State Government in this behalf (hereinafter referred to as the 'authorized 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, the Tahsildar or Deputy Tahsildar or authorized 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 or Deputy Tahsildar or authorized officer and any property so forfeited shall be disposed of as the Collector or subject to his control, the Tahsildar or Deputy Tahsildar or authorized officer may direct. (2) Mode of eviction. - 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 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. (3) Any authorized 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.' 6. (3) Any authorized 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.' 6. A careful perusal of sub-section (2) of Section 6 of said 1905 Act makes it clear that a Section 6 order cannot be made without being preceded by a notice under Section 7 of said 1905 Act which 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 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.' 7. A careful perusal of aforementioned Section 6 of said 1905 Act brings to light that only four authorities can make an order under Section 6 and they are : (i) Collector; (ii) Tahsildar subject to control of Collector; (iii) Deputy Tahsildar subject to control of Collector; (iv) Authorized officer being any other officer authorized by the State Government in this behalf. 8. Scanned reproduction of 5 impugned orders are as follows: Impugned order in W.P.No.2935 of 2025: Impugned order in W.P.No.2939 of 2025: Impugned order in W.P.No.2941 of 2025: Impugned order in W.P.No.2946 of 2025: Impugned order in W.P.No.2949 of 2025: 9. A bare perusal of impugned orders makes it clear that the same have been issued under Section 6 of said 1905 Act and that the same have been issued by R6, who is admittedly not an authorized officer. To be noted, R6 is obviously, not the other three i.e., Collector, Tahsildar or Deputy Tahsildar. Therefore, impugned orders have been made wholly without jurisdiction warranting interference in writ jurisdiction and necessitating certiorari prayer being acceded to. 10. Be that as it may, we also find that impugned orders were preceded by notices under Section 7 of said 1905 Act, all Section 7 notices also have been signed by R7. An order under Section 6 of said 1905 Act cannot be made without being preceded by a notice under Section 7 of said 1905 Act and this is adumbrated in sub-section (2) of Section 6 of said 1905 Act. In the case on hand, learned State Counsel fairly submits, on instructions that R7 is neither an 'authorized officer' nor a 'specified officer not being an authorized officer' within the meaning of Section 7 of said 1905 Act. This submission is also recorded. Therefore, we find that Section 7 notices which preceded by impugned orders are also wholly without jurisdiction. 11. Before we write the operative portion of this common order, we deem it appropriate to record the submission of learned State Counsel that survey has been conducted and encroachments have been found. This submission is also recorded. Therefore, we find that Section 7 notices which preceded by impugned orders are also wholly without jurisdiction. 11. Before we write the operative portion of this common order, we deem it appropriate to record the submission of learned State Counsel that survey has been conducted and encroachments have been found. It is also further say of learned State Counsel that action under 'the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007 (Tamil Nadu Act 8 of 2007)' {hereinafter 'Tanks Act' for the sake of convenience, clarity and brevity} and 'the Tamil Nadu Protection of Tanks and Eviction of Encroachment Rules, 2007' {hereinafter 'Tanks Rules' for the sake of convenience, clarity and brevity} thereunder is warranted. 12. In this view of the matter, we make it clear that all rights and contentions of respondents and / or any other State authority i.e., State in general stand preserved for initiating suitable action against writ petitioners either under Tanks Act and Tanks Rules thereunder and / or any other appropriate / applicable Statute/s. If such proceedings are commenced, we make it clear that the same will proceed on its own merits and in accordance with law untrammeled by this order and rights and contentions of noticees / writ petitioners or any other noticees will also stand preserved for responding to such notices. We make it clear that this is a rider observation. 13. As learned State Counsel has submitted that encroachments have been noticed in survey, State will do well to kick start removal of encroachments proceedings as expeditiously as the business of R7 would permit but in any event, within a fortnight from today i.e., by 13.02.2025. Ergo, the sum sequitur of the discussion and dispositive reasoning thus far is that captioned five main WPs are allowed albeit with aforementioned observation in the form of a rider. Consequently, captioned five Writ Miscellaneous Petitions thereat are disposed of as closed. There shall be no order as to costs.