This court dismissed a writ petition challenging an order under the Tamil Nadu Land Encroachment Act, 1905, upholding the operation of the alternative remedy rule and finding no merit in the petitioner's claims regarding procedural lapses.
The writ petition and the connected WRAT were dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
W.P.No.33808 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.11.2024
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE K.RAJASEKAR
W.P.No.33808 of 2024 and
W.M.P.No.36622 of 2024
in
W.P.No.33808 of 2024
K.Rajendren S/o.Kailasa Gounder ... Petitioner
Vs.
Prayer :
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Writ Petition filed under Article 226 of The Constitution of India praying to issue a Writ of Certiorarified Mandamus to call for the records of the impugned order in Na.Ka.V9/171020/2024 dated 20.08.2024 passed by the first respondent and quash the same and consequently, direct the respondents to mutate the revenue records and issue patta to the petitioner for the property situated in Survey Nos.136/1 and 136/2 admeasuring a total extent of 10 acres and 2 cents situated at Kolavoi Village, Veppur Taluk, Cuddalore District.
For Petitioner : Ms.N.Fidelia For Respondents : Mr.M.S.Arasakumar Government Advocate
O R D E R
[Order of the Court was made by M.SUNDAR, J. ,]
This is the third round of litigation in this Court on the same subject
matter.
pertains to 'land admeasuring 10 acres and 2 cents or thereabouts (together with a residential house thereon) in Survey Nos.136/1 and 136/2, Kolavai Village, Veppur Taluk, Cuddalore District' [hereinafter 'said Property' for the Page Nos.2/16
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sake of brevity].
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notice 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} was issued; that Section 7 of said Act is in the nature of 'Show Cause Notice' {'SCN'}; that noticee (writ petitioner) responded through his lawyer; that thereafter, an order was made by R3 under Section 6 of said Act and this order is dated 21.06.2023; that this order under Section 6 of said Act came to be made by R3 after giving an opportunity to writ petitioner and after taking statements from writ petitioner; that this order dated 21.06.2023 under Section 6 of said Act was assailed by writ petitioner obviously, under Section 10 of said Act; that in the interregnum, writ petitioner filed W.P.No.12142 of 2023 in this Court assailing Section 7 notice dated 18.05.2022; that this writ petition was disposed of on 20.04.2023 inter alia directing the third respondent to consider the writ petitioner's response; that it is to be noted that this W.P.No.12142 of 2023 is the first round of litigation; that thereafter, writ petitioner filed another writ petition in W.P.No.34572 of 2023 with a prayer to quash Section 6 order namely, order dated 21.06.2023 but another Division Bench by an order dated 12.03.2024 disposed of the writ petition saying that the appeal has to be heard out; that
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the appeal (obviously appeal under Section 10 of said Act) has since been heard out and an order dated 20.08.2024 bearing reference No.Na.Ka.V9/171020/2024 has been made; that this '20.08.2024 order' made by R1 shall hereinafter be referred to as 'impugned order' for the sake of convenience and clarity; that captioned WP has been filed assailing the impugned order.
matter has taken in this Court, including the earlier two rounds of litigation,
now proceeds to capture arguments of learned counsel for writ petitioner.
served on the writ petitioner;
(ii) In making impugned order, personal hearing has not
been held;
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for all three respondents.
impugned order has been made after thoroughly examining records and after thoroughly analyzing the facts and circumstances of the case.
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RDO in the year 1973 not being served on the writ petitioner. As already alluded to supra, in capturing factual matrix, this cancellation order was thereafter followed by a notice dated 13.11.1992 and that 13.11.1992 notice was neither challenged nor put to test. This means that way back in 1972 itself the matter has attained legal quietus. In any event, it is to be noted that learned State Counsel contended that it is only after communicating the cancellation of auction proceedings, notice dated 13.11.1992 was issued. It is also to be noted that the writ petitioner's predecessor or writ petitioner has not taken any steps for allotment or any other form of confirmation of auction or auction purchase which is said to have been made on 20.02.1969. This also buttresses the position that cancellation of auction has been given legal quietus.
'10. Appeal - An appeal shall lie
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(a) to the Collector from any decision or order passed by a
Thasildar or Deputy Tahsildar under this this Act, and
to such officer as may be specified by the State Government
in this behalf (hereinafter referred to as the appellate authority) from any decision or order passed by an authorised officer under this Act and different appellate authorities may be specified for different classes of cases; and
(b) to the District Collector from any decision or order of a
Collector passed otherwise than on appeal, and
(c) to the Commissioner of Land Administration from any decision or order of a District Collector passed otherwise than on appeal.'
is no provision for personal hearing. However, a further careful perusal of the impugned order makes it clear that there is thorough examination of all aspects of the matter. There is one other perspective to this point. As already alluded to supra, while making Section 6 order, (against which the appeal has been preferred) i.e., order dated 21.06.2023 R3 has afforded an Page Nos.8/16
W.P.No.33808 of 2024
opportunity to the writ petitioner and R3 has also recorded statements of
writ petitioner. This is clear from the order itself which is as follows:
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legal drill parameters of Section 10 of said Act. We also find the order to be sound and clear besides being well reasoned. The Revenue outgoing which the writ petitioner has relied on really does not aid the writ petitioner in writ petitioner's campaign against the impugned order as Section 3 of said Act provides for levy of assessment on land unauthorizedly occupied. In other words, even with regard to land which encroached upon, the State has adequate Statutory power to levy and collect assessments. This by itself will not confer any right on the writ petitioner. It is clear from the proviso to
Section 3 of said Act. Section 3 of said Act reads as follows:
'3. Levy of assessment on lands unauthorisedly occupied -
Any person who shall unauthorisedly occupy in any area other than the transferred territory any land which is the property of Government, shall be liable to pay by way of assessment
(i) if the land so occupied forms an assessed survey number or part thereof, the full assessment of such number for the whole period of his occupation or a part thereof proportionate to the area occupied, as the case may be, provided that, for special reasons, the Collector or subject to his control, the Tahsildar or Deputy Tahsildar may impose the full assessment of such number or any lesser sum irrespective of the area occupied;
(ii) if the land so occupied be unassessed, an assessment on the area occupied calculated for the same period at the rate imposed on lands of a similar quality in the neighbourhood, or at the highest dry or wet rate of the village, as the case be, or when no such rates exist may, in such manner as may be prescribed in rules or orders under Section 8:
Provided that payment of assessment under this section shall not confer any right of occupancy.'
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that this is a fit case to impose self-restraint qua alternative remedy and hold
that alternative remedy rule which is a rule of discretion also goes against the writ petitioner.
Index : Yes / No Neutral Citation : Yes / No Speaking order / Non-speaking order mk
M.SUNDAR, J., and K.RAJASEKAR, J.,
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mk
To
W.P.No.33808 of 2024
14.11.2024
Page Nos.16/16
3 issues framed by the court
Whether the writ petition challenging the order under Section 6 of the Tamil Nadu Land Encroachment Act, 1905 has merits.
Whether the rule of alternative remedy bars the issuance of writ in this case.
Whether the impugned order suffers from lack of personal hearing or procedural infirmity.
6 provisions across 2 enactments
K.Rajendren
The District Collector Cuddalore
The Revenue Divisional Officer Cuddalore
The Tahsildar Veppur
M.Sundar
K.Rajasekar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
