Dismissed

C.Nallaiyan v. the Secretary to Government

Madras HC5 Dec 2024WP/37028/2024

Case brief

AI extract

What is this about?

Writ petition challenged a Section 7 encroachment notice and sought mandamus to frame rules and declare land as patta land. Court held the notice be treated as a show cause notice, allowed further reply, and held mandamus premature pending Section 6 proceedings; dismissed the petition.

What did the court decide?

Notice sustained but to be treated as show cause notice; writ petitioner may file additional reply by 12.12.2024; no costs

C.Nallaiyan Vs the Secretary to Government — Land Acquisition | Madras HC (2024)

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W.P.No.37028 of 2024

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 05.12.2024

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CORAM

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THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE K.RAJASEKAR

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W.P.No.37028 of 2024 and

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W.M.P. No.39999 of 2024 in W.P. No.37028 of 2024

C.Nallaiyan

... Petitioner

1.The Secretary to Government, Revenue Department, Fort St. George, Chennai – 9.

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2.The Secretary to Government, Law Department, Fort St. George, Chennai – 9.

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3.The District Collector, Salem, Salem District.

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4.The Tahsildar, Omalur Taluk, Salem District.

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5.The Revenue Inspector, Karuppur, Omalur Taluk, Salem District. ... Respondents

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Writ Petition filed under Article 226 of The Constitution of India

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Page Nos.1/11

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https://www.mhc.tn.gov.in/judis

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W.P.No.37028 of 2024

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praying to issue a Writ of Certiorarified Mandamus to call for the records relating to proceeding/notice dated 20.11.2024 passed by the fifth respondent, quash the same and consequently direct the respondents 1 and 2 to frame a Rule under Section 8(c) (d) (e) (f) and (g) of the Land Encroachment Act, 1905 for declaring the land in Survey No.16/3 and 16/4 an extent of 1.13.50 Hecs. at Vellalapatti Village, Omalur Taluk, Salem District as unobjectionable/patta land by considering the petitioner's representation dated 25.11.2024.

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For Petitioner : Mr.M.Elango For Respondents : Mr.V.Ravi, Special Government Pleader

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ORDER

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[Order of the Court was made by M.SUNDAR, J .,]

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Captioned 'Writ Petition' (hereinafter 'WP' for the sake of

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brevity) has been filed assailing a 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} and a scanned reproduction of the same is as follows:

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Page Nos.2/11

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W.P.No.37028 of 2024

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Page Nos.3/11

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W.P.No.37028 of 2024

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Adverting to the 'aforesaid notice dated 20.11.2024' (hereinafter 'impugned notice' for the sake of convenience and clarity), Mr.M.Elango, learned counsel on record for writ petitioner submitted that the impugned notice though issued under Section 7 of said 1905 Act instead of show causing the writ petitioner, has called upon the writ petitioner to remove the alleged encroachment within

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Page Nos.4/11

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https://www.mhc.tn.gov.in/judis

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W.P.No.37028 of 2024

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seven days.

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Issue notice to the respondents.

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Mr.V.Ravi, learned Special Government Pleader accepted notice for all five respondents. Learned Special Government Pleader submitted that seven days mentioned in the impugned notice is for the writ petitioner to respond as the notice clearly mentions about further proceedings under Section 6.

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Owing to the limited scope of the captioned WP, with the consent of learned counsel on both sides, the main WP was taken up in the Admission Board.

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Learned counsel for writ petitioner predicated his arguments on three points and they are as follows:

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(i) As already alluded to supra, Section 7

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notice instead of show causing the writ petitioner to show cause before a particular date has straight

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Page Nos.5/11

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W.P.No.37028 of 2024

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away called upon the writ petitioner to remove the alleged encroachment;

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(ii) the notice pertains to lands comprised in Survey No.16/3 (admeasuring 0.60.5 hectares) and Survey No.16/4 (admeasuring 0.53.0 hectares) in Vellalapatti Village, Omalur Taluk, Salem District is being held by the writ petitioner by way of a grant from the Government and is therefore saved under Section 2(1)(e) of said 1905 Act;

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(iii) the second proviso to Section 7 provides for a report in writing from the Revenue Inspector according to the Rules and Rules have not been framed under said 1905 Act.

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We carefully considered the three points.

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As regards the first point, we record the submission of learned State counsel that seven days time has been granted for the writ petitioner to show cause. This means that the impugned notice shall now be treated as a 'Show Cause Notice' ('SCN') and the writ

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Page Nos.6/11

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petitioner shall send an additional reply on or before 12.12.2024, if so advised and so desired. To be noted, writ petitioner has already sent a reply dated 25.11.2024. If additional reply is not sent, reply sent on 25.11.2024 shall be treated as reply. This douses the first point argument.

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The second point pertains to saving of said lands vide Section 2(1)(e) of said 1905 Act. We are of the considered view that the writ petitioner has only been show caused and therefore this point can be raised by the writ petitioner in response to the SCN and authorities will obviously consider the same on its own merits and in accordance with law. This puts an end to Point No.2.

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The third point turns on second proviso to Section 7 which talks about a report from the Revenue Inspector (R5 in the case on hand). The argument that Rules have not been framed does not hold water as careful perusal of second proviso to Section 7 makes it clear that the report will be either in accordance with the Rules or communication under Section 8 to the Collector. In any event, this second proviso to Section 7 talks only about inter se report qua the revenue authorities and therefore this point does not hold water. Page Nos.7/11

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The narrative, discussion and dispositive reasoning thus far

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make it clear that certiorari prayer cannot be answered in the affirmative but we put in a rider that the impugned notice shall now be treated as SCN. As regards the mandamus limb, all that is subject to proceedings/orders under Section 6 of said 1905 Act (which is appealable/revisable vide statutory appeal/revision) and therefore the mandamus limb does not arise at this SCN stage.

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Apropos, we make the following order:

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12.1 Impugned notice being notice dated

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20.11.2024 issued by R5 shall now be treated

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as SCN ;

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12.2 It is open to the writ petitioner to show cause (show further cause) within seven days from today i.e., by 12.12.2024. We are

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saying further cause as writ petitioner has

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Page Nos.8/11

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already shown cause vide reply dated 25.11.2024. If the writ petitioner does not reply within seven days, the 25.11.2024 reply already sent will be treated as reply;

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12.3 Post seven days, order under section 6 shall be made. If an order under Section 6 is made, depending on the nature of the order, the matter will either be given quietus or there can be further proceedings under said 1905 Act i.e., appeal/revision under Section 10/10-A as this Court has repeatedly held that said 1905 Act is a self contained Code;

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12.4 As the impugned notice shall now be

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treated as SCN, further proceedings qua removal of alleged encroachment (if any) shall obviously be subject to and depending on the orders under Section 6 and further proceedings, if any.

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Page Nos.9/11

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Ergo, sequitur is, certiorari limb of the prayer is not

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answered in the affirmative as impugned notice is sustained albeit with a rider that the same will now be treated as SCN and the mandamus limb is dismissed as premature. Captioned WP is dismissed. Consequently, captioned Writ Miscellaneous Petition (WMP) also perishes and the same is also dismissed. There shall be no order as to costs.

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(M.S.,J.) (K.R.S.,J.) 05.12.2024

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Index : Yes / No Neutral Citation : Yes / No mmi

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1.The Secretary to Government, Revenue Department, Fort St. George, Chennai – 9.

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2.The Secetary to Government, Law Department, Fort St. George, Chennai – 9.

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3.The District Collector, Salem, Salem District.

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4.The Tahsildar, Omalur Taluk, Salem District.

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Page Nos.10/11

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https://www.mhc.tn.gov.in/judis

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W.P.No.37028 of 2024

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5.The Revenue Inspector, Karuppur, Omalur Taluk, Salem District.

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M.SUNDAR, J., and K.RAJASEKAR, J.,

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mmi

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W.P.No.37028 of 2024

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05.12.2024

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Page Nos.11/11

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C.Nallaiyan v. the Secretary to Government

Case brief

What is this about?

What did the court decide?

C.Nallaiyan v. the Secretary to Government

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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