Ashok & Anr vs The District Collector & Ors

By consent, these writ petitions are taken up for final disposal and are disposed of by this common order.

The petitioners, in the affidavits filed in support of the writ petitions, would aver that they belong to below poverty line category and eking out their livelihood by doing menial jobs and would claim that they are in possession and occupation of a portion of the lands in S.No.404/3 and also put up superstructures, which are subjected to statutory levies and they are also beneficiaries of welfare schemes formulated by the Government of Tamil Nadu and they have also been issued with Aadhar Cards.

Mr.R.Thirumoorthy, learned counsel appearing for the petitioners would submit that all of a sudden, the officials of the second respondent started removing superstructures put up by adjacent landowners on the ground that they have encroached upon lands, which has been classified as Water Body and in this regard, they have submitted representations dated 22.11.2017 to the respondents 1 and 2 and it is yet to be given disposal and apprehending that they are likely to be dispossessed in the interregnum by taking advantage of weekend holidays, the petitioners have come forward with these writ petitions.

Per contra, Mr.A.N.Thambidurai, learned Special Government Pleader appearing for the respondents would submit that the petitioners are admittedly encroachers, who claim title and possession of the land/sites in question based on unregistered Sale deeds, which cannot be taken cognizance and would further add that the petitioners have put up superstructures without any planning permission and since the petitioners are rank encroachers on the lands which has been classified as "Tharisu" [Waste Land], appropriate action would be initiated under the Tamil Nadu Land Encroachment Act, 1905.

This Court has considered the rival submissions and also perused the entire materials placed before it.

It is relevant to extract Sections 6, 7, 10 and 10-B of the Tamil Nadu Land Encroachment Act, 1905: "6. Liability of person unauthorizedly occupying land to summary eviction: (1) Any person unauthorizedly occupying any land for which he is liable to pay assessment under Section 3 [or Section 3-A] may be summarily evicted by the Collector [or subject to his control] by the Tahsildar or Deputy Tahsildar or any other officer authorized by the State Government in this behalf (hereinafter referred to as the ''authorized officer), and any crop or other product raised on the land shall be liable to forfeiture and any building or other construction erected or anything deposited thereon shall also, if not removed by him after such written notice as the Collector [or subject to his control, the Tahsildar or Deputy Tahsildar or authorized officer] may deem reasonable, be liable to forfeiture. Forfeitures under this Section shall be adjudged by the Collector [or subject to his control by the Tahsildar or Deputy Tahsildar or authorized officer] and any property so forfeited shall be disposed of as the Collector [or subject to his control, the Tahsildar or Deputy Tahsildar or authorized officer] may direct.

(2) An eviction under this section shall be made in the following manner, namely - By serving a notice in the manner provided in section 7 on the person reputed to be in occupation or his agent requiring him within such time as the Collector [or the Tahsildar or Deputy Tahsildar or authorized officer] may deem reasonable after receipt of the said notice to vacate the land, and, if such notice is not obeyed, by removing or deputing a subordinate to remove any person who may refuse to vacate the same, and if the officer removing any such person shall be resisted or obstructed by any person, the Collector [or the Tahsildar or Deputy Tahsildar or authorized officer] shall hold a summary inquiry into the facts of the case, and if satisfied that the resistance or obstruction was without any jut cause and that such resistance or obstruction still continues, may issue a warrant for the arrest of the said person and on his appearance commit him to close custody in the office of the Collector [or the Tahsildar or Deputy Tahsildar or authorized officer] for such period not exceeding 30 days as may be necessary to prevent the continuance of such obstruction or resistance or may send him with a warrant in the form of the schedule for imprisonment in the civil jail of the district for the like period:

Provided that no person so committed or imprisoned under this section shall be liable to be prosecuted under Sections 183, 186 or 188 of the Indian Penal Code in respect of the same facts.

[(3) Any authorized officer taking proceedings under this section shall make a report in writing containing such particulars as may be specified in rules or orders made under section 8 to the Collector, Tahsildar or Deputy Tahsildar having jurisdiction.]

Prior notice to person in occupation: Before taking proceedings [under Section 6] the Collector [or Tahsildar, (or Deputy Tahsildar or Revenue Inspector or any authorized officer or any officer of the Highways Department not below the rank of a Section Officer and not being an authorized officer) as the case may be] shall cause to be served on the person reputed to be in unauthorized occupation of land being [the property or Government] a notice specifying the land so occupied and calling on him to show cause before a certain date why he should not be proceeded against [under section 6].

Such notice shall be served in the manner prescribed in section 25 of the [Tamil Nadu] Revenue Recovery Act, 1864 or in such other manner as the [State Government] by rules or orders under Section 8 may direct.

[Provided that no such notice shall be necessary in the case of any person unauthorizedly occupying any land, if he has been previously evicted from such land under section 6 or if he has previously vacated such land voluntarily after the receipt of a notice under section 5-B or under this section:

Provided further that where the notice under this section is caused to be served by any Revenue Inspector or any officer of the Highways Department not below the rank of a Section Officer and not being an authorized officer, he shall require the person reputed to be in unauthorized occupation of the land to show cause against such notice to the Collector, Tahsildar or Deputy Tahsildar having jurisdiction and shall also make a report in writing containing such particulars as may be specified in rules or orders made under section 8 to the Collector, Tahsildar or Deputy Tahsildr having jurisdiction.]

S.10.Appeal - An appeal shall lie (a) to the Collector from any decision or order passed by a Tahsildar or Deputy Tahsildar under this Act, and to such officer as may be specified by the State Government in this behalf (hereinafter referred to as the appellate authority) from any decision or order passed by an authorised officer under this Act and different appellate authorities may be specified for different classes of cases; and

(b) to the District Collector from any decision or order of a Collector passed otherwise than on appeal, and

(c) to the Commissioner of Land Administration from any decision or order of a District Collector passed otherwise than on appeal.

S.10-B. Stay pending decision in appeal or revision.-

Pending the disposal of any appeal or application or proceedings for revision under this Act, the Collector, the District Collector, the Appellate Authority, the Commissioner of Land Administration or the State Government, as the case may be, may by order, and subject to such conditions as may be specified therein, stay the execution of the decision or order appealed against or sought to be revised."

Though the petitioners pray for larger relief, this Court, in the light of the above facts and circumstances and without going into the merits of the claim projected by the petitioners, grants liberty to the third respondent to proceed against the petitioners, if so advised, under the provisions of the Tamil Nadu Land Encroachment Act, 1905 and till the culmination of the proceedings and passing final orders, shall defer further decision to evict/dispossess the petitioners from their land/superstructures in question. It is made clear that till the culmination of proceedings and passing final orders by the third respondent, the petitioners shall not create any third party rights in respect of the land/superstructures in question and shall not alter its'' physical features also.

These Writ Petitions are disposed of accordingly. No costs.