Allowed

M/s.Sri Vidya Township Private Limited v. The Virudhunagar District Collector

Madras HC7 Aug 2024WP(MD)/15965/2024

Case brief

AI extract

What is this about?

The Court quashed notices issued under the Tamil Nadu Land Encroachment Act,1905 against petitioner's patta land containing a pathway. The Court held that such land does not vest in the Government under the Act and authorities must follow land acquisition procedures for public purposes like channel laying.

What did the court decide?

Impugned notices under Sections 6 and 7 of the Tamil Nadu Land Encroachment Act,1905 set aside.

M/s.Sri Vidya Township Private Limited Vs The… — Landlord and Tenant | Madras HC (2024)

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W.P.(MD) No.15965 of 2024

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED : 07.08.2024

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CORAM:

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THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN

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AND

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THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI

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W.P.(MD) No.15965 of 2024

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M/s. Sri Vidya Township Private Limited, rep. By its Senior Executive/Authorised Representative, Mr.A.Jakiriya Ismail ... Petitioner

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-vs-

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1.The Virudhunagar District Collector, Virudhunagar District Collector Office, Virudhunagar.

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2.The Superintendent of Police, Aruppukottai Taluk, Virudhunagar District.

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3.The Tahsildar, Kariyapatti Taluk, Virudhunagar District.

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4.The Revenue Inspector, Kariyapatti Taluk, Mangulam Village, Virudhunagar District.

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5.The Head Surveyor, Kariyapatti Taluk, Vidurhunagar District.

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W.P.(MD) No.15965 of 2024

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6.The Surveyor, Kariyapatti Taluk, Mangulam Village, Vidurhunagar District.

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7.The Village Administrative Officer, Kariyapatti Taluk, Mangulam Village, Virudhunagar District. ... Respondents

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PRAYER: Writ Petition is filed under Article 226 of the Constitution of India, praying for issuance of a writ of certiorarified mandamus to call for the records pertaining to the impugned notices issued under Section 7 of the Land Encroachment Act,1905, by the fourth respondent in j.t.vz;.57/2024, dated 31.05.2024, and the consequential notice issued under Section 6 of the Land Encroachment Act,1905, by the third respondent in Na.Ka.No.m8/1894/2024, dated 06.06.2024 and quash the same and also direct the first respondent to take appropriate action against the erring officials based on the representation, dated 31.05.2024.

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W.P.(MD) No.15965 of 2024

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For Petitioner : Mr.J.Alaguram Jothi

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For Respondents 1 & 3 to 7 : Mr.S.P.Maharajan, Spl.Govt.Pleader.

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For Respondent 2 : Mr.B.Thanga Aravindh, Govt. Advocate (Crl.Side).

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ORDER

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(By R.Subramanian,J.)

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The challenge is to the notice issued under Section 7 of the Tamil

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Nadu Land Encroachment Act,1905, and the order passed under Section 6 of the said Act. The land in question is classified as Ryotwari Punjai and it is a patta land that stands in the name of the petitioner in the writ petition.

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It is the contention of the authorities that they can invoke power under the Tamil Nadu Land Encroachment Act,1905, since it is shown that there is a pathway on ground in the land.

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The Tamil Nadu Land Encroachment Act,1905, enacted in 1905, vests certain lands in the Government. Section 2 of the said Act, which provides for such vesting, reads as follows :

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W.P.(MD) No.15965 of 2024

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''2.Right of property in public roads, etc., waters and lands.

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(1) All public roads, streets, lanes and paths, the bridges, ditches, dikes and fences, on or beside the same, the bed of the sea and of harbours and creeks below high water mark, and of rivers, streams, nalas, lakes and tanks, and [all back waters, canals and watercourses] and all standing and flowing water, and all lands, wherever situated, save in so far as the same are the property-

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(a) of any zamindar, poligar, mittadar, shrotriemdar or inamdar or any person claiming through or holding under any of them, or

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(b) of any person paying Kist, kattubadi, jodi, poruppu or quitrent to any of the aforesaid persons, or

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(c) of any person holding under ryotwari tenure [including that of a janmi in the Gudalur taluk of the Nilgiris district] [and in the transferred territory] or in any way subject to the payment of landrevenue direct to Government, or

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(d) of any other registered holder of land in proprietary right,

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W.P.(MD) No.15965 of 2024

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(e) of any other person holding land under grant from [the Government] otherwise than by way of licence,

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and, as to lands, save also in so far as they are temple site or owned as house-site or back yard, are and are hereby declared to be [the property of Government] except as may be otherwise provided by any law for the time being in force, subject always to all rights of way and other public rights and to the natural and easement rights of other land-owners, and to all customary rights legally subsisting.

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(2) All public roads and streets vested in any local authority shall, for the purposes of this Act, be deemed to be [the property of Government] ''

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Therefore, it is clear that the patta land in which the pathway or cart track is shown to be running as on ground, does not vest in the Government to enable the Government to take action under Section 6 of 7 of the Tamil Nadu Land Encroachment Act,1905. It will be open to the persons, who have a right over the cart track, to seek appropriate relief before the Civil Court concerned to establish their right of pathway. The Government cannot invoke the provisions of the Act to evict such encroachment or obstruction.

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W.P.(MD) No.15965 of 2024

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It is claimed by the learned Government Pleader that huge amount has been sanctioned for laying channel across the lands and the officers wanted to measure the lands, which was prevented by the land owners.

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Section 12 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act,2013, empowers the officers to survey the land and if there is any obstruction during such survey, the officers can always seek the assistance of law enforcing agency. Eviction notice under the provisions of the Tamil Nadu Land Encroachment Act,1905, is not a method, by which the survey under Section 12 could be undertaken.

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An attempt has been made by the learned Government Pleader to rely upon Clause 15 of Standing Order 26 of the Board of Revenue. The Standing Orders of the Board of Revenue will have force of a legislation. Once the land does not vest in the Government, the power to remove encroachment cannot be exercised. The scope of Clause 15 of Standing Order 26 is completely different. The purpose of eviction is not for providing an access to the people. It is for a completely different purpose to lay a channel over the land. In such event, the Government will have to necessarily exercise the power of eminent domain and acquire the land. Unless the land is acquired, the Government cannot use it for a different purpose. Even Clause 15 of

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W.P.(MD) No.15965 of 2024

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Standing Order 26 enables the owner to change the course of the path with a view to consolidate his/her holdings. That would definitely mean that the owner of the land, over which a pathway is used by the public lies, is entitled to change its course for the purpose of consolidated holdings. Therefore, the notices issued under Section 6 as well as Section 7 of the Land Encroachment Act,1905, are liable to be quashed.

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We also notice that the proceedings have been taken at a very great speed. The notice under Section 7 is dated 31.05.2024 and it is not known as to when it was served. The order under Section 6 has been passed within six days on 06.06.2024. Such hasty action by the Revenue Officers, who are normally very slow, puts us in great doubt as to the motive behind such actions. No period is fixed under Section 7. However, the said provision requires a notice to be served in the manner prescribed under Section 25 of the Tamil Nadu Revenue Recovery Act,1864. The minimum purpose of notice under Section 7 is to comply with the principles of natural justice. Even while considering the constitutional validity of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act,2007, a Division Bench of this Court in

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T.S.Senthil Kumar v. Government of Tamil Nadu, 2010 (3) MLJ 771 , has

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held that even if the Act does not contain any provision for issuance of notice before removal of encroachment, the principles of natural justice should be

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W.P.(MD) No.15965 of 2024

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read into enactment, in cases where the enactment seeks to achieve the object of removal of encroachments. Therefore, we have no doubt in our mind that the opportunity contemplated under Section 7 should be a meaningful opportunity and not a fake opportunity or an opportunity for the sake of it. The notices issued suffer vice of denial of principles of natural justice also.

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Hence, this Writ Petition stands allowed and the impugned notices will stand set aside. No costs. Consequently, the connected W.M.P. (MD) Nos.13892 and 13893 of 2024 are closed. It is open for the authorities to acquire the land and use it for whatever purpose they want, after complying with the principles of natural justice.

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The learned Government Pleader would submit that the petitioner should cooperate with the authorities for measuring the land for the purpose of acquisition. He would also submit that the authorities will visit the land on 14.08.2024, for which the petitioner is required to cooperate with the authorities in measuring the land.

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(R.S.M.,J.) (L.V.G.,J.) 07.08.2024

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NCC : Yes / No Index : Yes / No Internet : Yes / No dixit

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W.P.(MD) No.15965 of 2024

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