K.S.Subramaniam Vs the District Collector

seeking a writ of certiorarified mandamus calling for the records of the third respondent vide Section 6 of the Land Encroachment Act, 1905 dated 05.05.2025 and the consequential order of the third respondent

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dated 06.05.2025 and quash the same and accordingly, restrain the respondents from disturbing the petitioner of Thadapalli Village, from carrying out their traditional profession of weaving in the natham poramboke lands in Re-survey Nos.367/31 and 367/4 to a total extent of 0.36.94 hectares property situated at Thadapalli Village, Gobichettipalayam Taluk, Erode District as “Pavadi”.

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For petitioner Mr. P. Rajavel

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For respondents Mr. K. Suresh Government Advocate

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ORDER

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[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 seeking issue of a writ of certiorarified mandamus.

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In and vide the certiorari limb of the prayer, 'a notice/order signed by R3 (Tahsildar) on 05.05.2025' [hereinafter 'impugned order' for the sake of convenience and clarity] being a notice/order under Section 6 of 'the Tamil Nadu Land Encroachment Act (Act III of 1905)' [hereinafter 'said 1905 Act' for the sake of convenience and clarity]

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and another 'communication dated 06.05.2025 (signed on 06.06.2025) bearing reference Na.Ka9220/2023/A1 issued by R3 [hereinafter 'impugned communication' for the sake of convenience and clarity] have been called in question. To be noted, impugned communication is consequential qua impugned order.

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As regards the consequential mandamus limb of the prayer, writ petitioner has sought a mandamus qua respondents to restrain them from interfering with the writ petitioner carrying on his weaving profession in 'Survey Nos.367/31 and 367/4 in Thadapalli Village, Gobichettipalayam Taluk, Erode District' [hereinafter 'said lands' for the sake of convenience and clarity].

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Learned counsel for writ petitioner, adverting to an earlier judicial order dated 17.11.2023 made in W.P.No.32101 of 2023 by another Hon'ble Division Bench, submits that the State has taken a stand that there is no objection to said lands being used as 'pavadi' but the writ petitioner has been visited with impugned order followed by impugned communication from R3.

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5. Issue notice to respondents.

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Mr. K. Suresh, learned Government Advocate, accepts notice for respondents and submits, on instructions, that the impugned order has been made as barbed wire fence, toilet, name board of the society, have all been put up on said lands and that has necessitated proceedings under the said 1905 Act.

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The impugned order of R3 is an appealable order as appeal lies against the same vide Section 10 of said 1905 Act and the appellate authority is R1 (District Collector). This means that there is an effective and efficacious alternative remedy for the writ petitioner. This also means that the captioned main WP stands vastly descoped and therefore, with the consent of learned counsel for writ petitioner and learned State counsel for respondents, captioned main WP was taken up in the Admission Board.

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Learned counsel for writ petitioner submitted that on being visited with impugned order of R3, the writ petitioner addressed a

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representation dated 09.05.2025 to R3 with a copy marked to R1 and the postal receipt evidencing despatch of the representation on 10.05.2025 from Gobichettipalayam Post Office has been placed before us.

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A careful perusal of the aforereferred representation shows that the writ petitioner has not made any prayer for keeping in abeyance (stay) the impugned order.

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No template or specific format has been codified and put in place for statutory appeals under Section 10.

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In this regard, before proceeding further, 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

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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 selfcontained Code.

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The eco-system of said 1905 Act, i.e., the purpose sought to be achieved by said 1905 Act is to lay down a 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 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 inter alia 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

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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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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 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 thus far and the obtaining legal position, the following order is made:

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i. Impugned order signed on 05.05.2025 and impugned communication dated 06.05.2025 (signed on 06.06.2025) both issued by R3, are not dislodged. In

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other words, this Court is not acceding to the certiorari limb of the prayer;

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ii. This Court makes it clear that not acceding to certiorari limb of the prayer shall not be construed as this Court having sustained the impugned order and impugned communication on merits. This Court refrains from embarking upon the drill of testing the impugned order and impugned communication in the light of effective and efficacious alternative remedy available to the writ petitioner;

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iii. The aforereferred representation of writ petitioner dated 09.05.2025 together with postal receipt evidencing despatch on 10.05.2025 is as follows:

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iv. The aforereferred representation of writ petitioner dated 09.05.2025 shall now be treated by R1 as appeal;

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v. It is open to the writ petitioner to file a stay petition in the above appeal by resorting to Section 10-B. If the writ petitioner does so, the same shall be considered on its own merits and in accordance with law by R1;

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vi. As we do not accede to the certiorari limb of the prayer in the captioned main WP, the mandamus limb pales into insignificance (As already alluded to supra , the

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mandamus limb of the prayer is consequential qua certiorari limb);

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vii. Though obvious, we make it clear that all questions are left open with regard to writ petitioner, State or any other person concerned with said lands for the quasi judicial drill to ensue before R1;

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Captioned main WP is disposed of as closed albeit with preservation of rights, observations and directives in the aforesaid manner. Consequently, captioned writ miscellaneous petition thereat is also disposed of as closed. There shall be no order as to costs.

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(M.S., J.) (H.C., J.) 16.07.2025

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cad Index: Yes/No N.C. : Yes/No

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To