Dismissed¶52

Nachimuthu v. the District Collector

Madras HC28 Jan 2025WP/2176/2025

Case brief

AI extract

What is this about?

Certiorari dismissed at admission — alternate remedy. Tamil Nadu Land Encroachment Act 1905 (TN Act III of 1905) held self-contained code; Section 6 order by Tahsildhar Perundurai (Erode); Section 7 show cause; Section 10 statutory appeal to District Collector; Section 10-A(3) Government revision; Section 10-B stay/interim prayer; 'Natham' land classification argument; notices said to require Tamil Nadu Survey and Boundaries Act 1923; Whirlpool exceptions applied and found inapplicable; Art. 226 Madras HC; WMPs dismissed, no costs.

What did the court decide?

None; writ petitions and connected Writ Miscellaneous Petitions dismissed with no order as to costs; petitioners relegated to statutory appeals before the District Collector (R1). ¶52

Nachimuthu Vs the District Collector — Writ and Judicial Review | Madras HC (2025)

What the court decided

AI extract

Outcome

None; writ petitions and connected Writ Miscellaneous Petitions dismissed with no order as to costs; petitioners relegated to statutory appeals before the District Collector (R1).

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Issue for consideration

Whether lands classified as 'Natham' can be construed as encroachment(s) punishable under the Tamil Nadu Land Encroachment Act, 1905 (point pressed by petitioners' counsel; not decided by this Court, left to statutory appeal). +2 more

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Ratio / Principle

The Tamil Nadu Land Encroachment Act, 1905 (Tamil Nadu Act III of 1905) is a self-contained Code: the alleged encroacher is shown cause under Section 7 followed by an order considering the cause shown; the Section 6 order is appealable under Section 10 to the District Collector; there is further revision to the Government under Section 10-A (precisely Section 10-A(3)); and interim prayers/stay pending appeal or revision lie under Section 10-B.

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Key takeaways

The writ petitioners have an effective alternate remedy: the points canvassed against the impugned orders can be effectively raised in statutory appeals before the first respondent (District Collector), and stay is available pending such appeals under Section 10-B of the 1905 Act.ratio¶47
Alternate remedy is a rule of discretion, not absolute; the case on hand is not wholly lacking in jurisdiction and therefore falls within none of the four Whirlpool exceptions (enforcement of fundamental rights; violation of natural justice; wholly without jurisdiction; challenge to vires of an Act); accordingly the writ petitions fail.ratio¶48

Detailed headnote1 paragraphs

Madras High Court (M. Sundar & K. Rajasekar, JJ.; order authored by M. Sundar, J.), 28.01.2025 — Three writ petitions (Art. 226, certiorari) by landholders of Perundurai, Erode against Tahsildhar's orders dated 26.12.2024 under Section 6 of the Tamil Nadu Land Encroachment Act, 1905 (Tamil Nadu Act III of 1905) were dismissed at Admission Board stage on the ground of effective alternate remedy. Holding: the 1905 Act is a self-contained Code — Section 7 show-cause, Section 10 appeal to the District Collector, Section 10-A(3) revision to the Government, and Section 10-B interim prayer/stay pending appeal/revision; all points urged (lands classified 'Natham'; notices should have issued under the Tamil Nadu Survey and Boundaries Act, 1923; antecedent disposal of Sasikala's W.P.No.17333 of 2024 on 04.07.2024) can be effectively raised in statutory appeal before the District Collector (R1). The case fell within none of the four Whirlpool exceptions, not being wholly without jurisdiction. WMPs likewise dismissed; no costs; merits left undecided.

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W.P.Nos.2176, 2178 & 2185 of 2025

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 28.01.2025

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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.Nos.2176, 2178 & 2185 of 2025 and

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W.M.P.Nos.2532, 2533 & 2537 of 2025

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Nachimuthu S/o.Marimuthu ... Petitioner in W.P.No.2176 of 2025

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Sivagami W/o.Magendran ... Petitioner in W.P.No.2178 of 2025

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Madheswari W/o.Loganathan ... Petitioner in W.P.No.2185 of 2025

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Vs.

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The District Collector Erode District Erode.

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The Tahsildhar Perundurai Erode District.

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Sasikala W/o.Arjunan ... Respondents in all WPs

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Page Nos.1/7

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

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W.P.Nos.2176, 2178 & 2185 of 2025

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Prayer :

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Writ Petition No.2176 of 2025 filed under Article 226 of The Constitution of India praying to issue a Writ of Certiorari, to call for records pertaining to the impugned order passed against the petitioner by the 2nd respondent dated 26.12.2024 under Section 6 of the Tamil Nadu Act III of 1905 and quash the same.

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Writ Petition No.2178 of 2025 filed under Article 226 of The Constitution of India praying to issue a Writ of Certiorari, to call for records pertaining to the impugned order passed against the petitioner by the 2nd respondent dated 26.12.2024 under Section 6 of the Tamil Nadu Act III of 1905 and quash the same.

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Writ Petition No.2185 of 2025 filed under Article 226 of The Constitution of India praying to issue a Writ of Certiorari, to call for records pertaining to the impugned order passed against the petitioner by the 2nd respondent dated 26.12.2024 under Section 6 of the Tamil Nadu Act III of 1905 and quash the same.

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For Petitioner in all WPs : Mr.J.Titus Enock

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C O M M O N O R D E R

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

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Captioned main 'Writ Petitions' {hereinafter 'WPs' for the sake of

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brevity} have been filed with certiorari prayers assailing 'three notices / Page Nos.2/7

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

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W.P.Nos.2176, 2178 & 2185 of 2025

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orders, all dated 26.12.2024 made by R2 [The Tahsildhar, Perundurai, Erode District] under 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}' {hereinafter 'impugned orders' for the sake of brevity, convenience and clarity}.

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Notwithstanding very many averments / grounds in writ affidavits, Mr.J.Titus Enock, learned counsel on record for writ petitioners predicated his submission on two points and they are as follows:

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(i) Lands, which are subject matters of impugned orders

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have been classified as 'Natham' and therefore, it cannot be construed as encroachment/s under Section 1905 Act;

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(ii) One Sasikala, who claims to be owner of said lands earlier filed a writ petition in W.P.No.17333 of 2024 on the file of this Court with a prayer to survey said lands and the said writ petition was disposed of by Hon'ble single Judge on 04.07.2024 with a direction to consider Sasikala's representation dated 05.06.2024.

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Page Nos.3/7

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

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W.P.Nos.2176, 2178 & 2185 of 2025

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It is case of learned counsel for writ petitioners that notices should

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have been issued under the Tamil Nadu Survey and Boundaries Act, 1923

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(Tamil Nadu Act No.VIII of 1923).

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We carefully considered arguments in the Admission Board.

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We find that both points can be discussed together and common

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dispositive reason can be given. We do so.

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This Court has repeatedly held that 'the Tamil Nadu Land Encroachment Act, 1905 (Tamil Nadu Act III of 1905)' which is being referred to as 'said 1905 Act' is a self contained Code. The reason inter-alia is that there is a provision to have the alleged encroacher show caused under section 7 followed by an order (considering the cause shown). The order under section 6 is appealable under section 10 [District Collector is the appellate authority] and there is a provision for further revision to the Government under Section 10-A [Section 10-A(3) to be precise] of said 1905 Act. Pending appeal / revision, there is a provision for making interim prayer vide Section 10-B of said 1905 Act. Therefore, said 1905 Act is a self contained Code in every sense of the expression.

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Page Nos.4/7

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

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W.P.Nos.2176, 2178 & 2185 of 2025

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The above means that writ petitioners have the remedy of filing statutory appeals against impugned orders and such statutory appeals will lie to R1. We find that points canvassed by writ petitioners in their campaign against impugned orders can be effectively raised in statutory appeals before R1. To be noted, there is a provision for stay pending statutory appeals vide Section 10-B of said 1905 Act.

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The narrative thus far means that writ petitioners have effective alternate remedy. Alternate Remedy is no doubt not an absolute rule and it is a rule of discretion. Considering the case on hand, we find that it is not a case wholly lacking in jurisdiction and therefore, it does not fall under anyone of Whirlpool exceptions {Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai reported in CDJ 1998 SC 371} . To be noted, four exceptions are (a) enforcement of fundamental rights; (b) violation of NJP; (c) wholly without jurisdiction and (d) vires of an Act is challenged. As already alluded to supra, we find that it is not a case where impugned orders have been made wholly without jurisdiction. To be noted, it is nobody's case that it falls in other three exceptions. Therefore, we are of the considered view that captioned main WPs do not pass muster in the

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Page Nos.5/7

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

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W.P.Nos.2176, 2178 & 2185 of 2025

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Admission Board. Captioned WPs fail and the same are dismissed. Consequently, Writ Miscellaneous Petitions are also dismissed. There shall

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be no order as to costs.

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(M.S.,J.)