H.Sivakumar Vs The Tahsildar

Writ Petition filed under Article 226 of The Constitution of India praying to issue a Writ of Certiorari to call for the entire records relating to the order dated 18.10.2021 issued under Section 6 of the Land Encroachment Act, 1905 (Act 3 of Chennai) on the file of the first respondent herein and quash the same.

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For Petitioner : Mr.L.P.Shanmugasundaram For Respondents : Mr.T.K.Saravanan, Additional Government Pleader for R1 Mr.P.Srinivas for R2

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ORDER

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

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Captioned main 'Writ Petition' [hereinafter 'WP' for the sake of brevity] has been filed with a prayer for writ of certiorari assailing an 'order dated 18.10.2021 made by R1 [Tahsildar, Uthagamandalam, The Nilgiris 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 order' for the sake of convenience and clarity}.

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Mr.L.P.Shanmugasundaram, learned counsel on record for writ petitioner, Mr.T.K.Saravanan, learned Additional Government Pleader for R1 and Mr.P.Srinivas, learned standing counsel for Ootacamund Municipality/R2 are before us. We heard out all the learned counsel.

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Though myriad grounds have been raised in the captioned WP

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and very many submissions have been made on merits, we find that the entire matter turns on a short point/question and that short point/question is whether the impugned order of R1 was preceded by a show cause notice under Section 7 of said 1905 Act.

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Learned counsel for writ petitioner emphatically submits that the writ petitioner was not served with show cause notice under Section 7 of said 1905 Act. To put it differently, learned counsel for writ petitioner submits that the writ petitioner was not given an opportunity before the impugned order was made by R1. Learned State counsel for R1 submitted to the contrary and drew our attention to counter affidavit of R1 dated 11.04.2022, more particularly paragraph 7 thereat, wherein there is a categorical assertion that the jurisdictional Revenue Inspector had issued a notice under Section 7 of said 1905 Act dated 30.09.2021. To be noted, copy of this 30.09.2021 notice under Section 7 of said 1905 Act has been annexed to the counter affidavit and a scanned reproduction of the same is as follows:

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Captioned WP gets further descoped and turns on a shorter point/micro question i.e., as to whether the aforesaid 30.09.2021 Page Nos.4/12

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notice under Section 7 of said 1905 Act was served on the writ petitioner. Though there is an acknowledgement/endorsement in the bottom of the notice (handwritten) and though the learned State counsel contends that this is acknowledgement evidencing the service on writ petitioner, the endorsement is not clear. In the counter affidavit of R1 also, the exact date of service of Section 7 notice on the writ petitioner has not been mentioned. To be noted, there is not even an averment that Section 7 notice has been duly served on the writ petitioner.

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Faced with the above situation, learned State counsel fairly submitted that without expending time qua aforesaid issue and aforereferred submission that Section 7 notice was not served on the writ petitioner/noticee, it would be desirable to dislodge the impugned order (without expressing any opinion on merits), permit the writ petitioner to now respond to the aforementioned Section 7 notice within a fortnight from today i.e., 21.07.2025. R1 can consider the response of the writ petitioner and pass orders afresh on its own merits and in accordance with law.

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The aforereferred submission of learned State counsel appeals to us and we find the same to be a very pragmatic approach considering the facts and circumstances of the case and the nature of the matter. Therefore, we accept this submission. Further, before we write the operative portion of this order, it is deemed appropriate to write that this Court, in C.Gopinathan case reported in 2025:MHC:1162 (order dated 29.04.2025 in W.P.Nos.8355 and 8357 of 2022 and W.M.P. Nos.8324 and 8237 of 2022 thereat), respectfully following Girnar principle, i.e., declaration of law made by a Constitution Bench of the Hon'ble Supreme Court in Girnar Traders (3) vs. State of Maharashtra reported in (2011) 3 SCC 1 , held that said 1905 Act is a self contained Code. Girnar principle is that if a statute provides for a complete machinery to deal with the purpose sought to be achieved by that law and its dependence on other legislations is either absent or minimal, such a statute is a self contained Code.

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The ecosystem of said 1905 Act, i.e., the purpose sought to be achieved by said 1905 Act is to lay down procedure for eviction of encroachment of lands belonging to the Government. As regards said 1905 Act, inter alia, there is a provision to have the alleged encroacher Page Nos.6/12

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show caused under Section 7 of said 1905 Act followed by an order under section 6 (considering the cause shown). The order under Section 6 is appealable. Section 10 is the appeal provision and interalia District Collector is the appellate authority and there is a provision for further revision to the Government under Section 10-A of said 1905 Act. Pending appeal / revision, there is a provision for making interim prayer vide Section 10-B of said 1905 Act. This order of Revisional Authority is obviously subject to judicial review. This is the legal architecture of the machinery put in place to deal with the purpose sought to be achieved by said 1905 Act. Such a three-tier machinery has been put in place to check unauthorised occupation of lands which are the properties of the Government (besides imposition of penal or prohibitory assessment or charge), after giving adequate and ample opportunity to a person who is alleged to be in occupation of public roads, streets, lanes and paths, bridges, ditches, dikes and fences, rivers, streams, nalas, lakes, tanks and such other properties of Government.

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9. The purpose sought to be achieved by said 1905 Act and the architecture of the machinery put in place to achieve the same when tested on the touchstone of Girnar principle leaves us with the view Page Nos.7/12

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that said 1905 Act is a self contained Code which provides for complete machinery to deal with the purpose sought to be achieved with no dependence on other legislations or at the highest minimal dependence on other legislations. Suffice to say that said 1905 Act is clearly a self-contained Code.

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In the light of the narrative, discussion and dispositive reasoning thus far, the following order is made:

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10.1 The impugned order being order dated

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18.10.2021 made by R1 [Tahsildar, Uthagamandalam,

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The Nilgiris District] is dislodged without expressing any view one way or the other on the merits of the matter. To be noted, impugned order is dislodged solely for the purpose of a de novo legal drill after giving an opportunity to writ petitioner;

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10.2 The aforereferred Section 7 notice dated 30.09.2021 (issued by jurisdictional Revenue Inspector)

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shall now be construed to have been served on the writ petitioner today (07.07.2025);

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10.3 Writ petitioner shall now respond to the aforereferred Section 7 notice within a fortnight from today i.e., on or before 21.07.2025;

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10.4 R1 or any other competent revenue authority shall consider the aforereferred response of the writ petitioner on its own merits and in accordance with law and make an order under Section 6 of said 1905 Act as expeditiously as the business of R1 permits;

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10.5 Though obvious, we make it clear that all contentions i.e., all question raised by the writ petitioner including the points raised in the captioned WP are left open for being raised by the writ petitioner when the writ petitioner's response being considered on its own merits and in accordance with law;

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10.6 The order made by R1 or any other competent revenue authority under Section 6 of said 1905 Act shall be served on the writ petitioner under due acknowledgement within seven working days from the

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date on which the order is made;

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10.7 Though obvious, we make it clear that coercive action (if any and if that be so) shall be subject to and depending on the further proceedings under said 1905 Act which this Court has repeatedly held that said 1905 Act is a self contained Code about which there is allusion elsewhere supra.

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Captioned main WP is disposed of in the aforesaid manner. As we have held that further coercive action (if any and if that be so) will be subject to legal drill under said 1905 Act, captioned Writ Miscellaneous Petition (WMP) thereat has become otiose and the same is disposed of as closed. There shall be no order as to costs.

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

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To

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