D. Sathish vs Tahsildar and others

Judgement pronounced by C. Shivappa, J.—The appellant had challenged the order of the learned single judge, dated 20.6.1994, passed in

W.P.No.10440 of 1994. In the writ petition, the appellant herein challenged the order passed u/s 6 of the Tamil Nadu Encroachment Act, 1905

(hereinafter referred to as the Act), on the ground that no prior notice was issued u/s 7 of the Act.

It is contended in this Appeal that the finding of the learned single judge that ""though the impugned notice purports to be a notice u/s 6 of the

Act, in substance, it is really a notice u/s 7 of the Act"" is wrong.

Before taking proceedings u/s 6, the Collector of Tahsildar, or Deputy Tahsildar, or Revenue Inspector, or any authorised officer or any other

officer specified by the State Government in that behalf shall cause to be served on the person reputed to be an unauthorised occupant, of a land, a

notice specifying the land so occupied and calling on him to show cause why action should not be taken against him u/s 6 of the Act. But such

notice need not be served in the case of any person unauthorisedly occupying the land, if he had previously been evicted from such land u/s 6, or, if

he has previously vacated such land voluntarily, after the receipt of a notice u/s 5-B or u/s 7. The non-issuance of notice was held to vitiate the

proceedings taken u/s 6 of the Act by this Court in Hamsavalli and etc. Vs. The Tahsildar, Vridhachalam, South Arcot District, . The notice reads

that in the event of not vacating within 15 days, including the superstructure and the crops on the property are liable to be confiscated. It is not

same thing as calling upon him to show cause before a certain date why he should not be proceeded against u/s 6 of the Act. Section 6 of the Act

empowers the authority to take such action to confiscate anything found on the land including crops or other products, raised or any building

erected thereon, if not removed within stipulated time. The wordings of the impugned notice are fully in compliance with the requirements of

Section 6, rather than insisting for showing cause why he should not be proceeded against u/s 6 of the Act. Sub-Clause(2) of Section 6 of the Act

provides that by serving a notice in the manner provided u/s 7 on the person reputed to be in occupation in the event of refusing to vacate, the

officer so authorised may remove any such person, after holding a summary inquiry into the facts of the case, if he is satisfied that the resistance or

obstruction was without any just cause and take such appropriate action against such person, including penal action.

The learned single judge, in the order, has stated that nothing is stated in the affidavit whether any reply has been given by the petitioner to the

said notice. When it is the contention of the appellant/petitioner that the impugned notice is u/s 6 of the Act and not u/s 7, the question of showing

cause does not arise. While ordering confiscation in the event of not handing over, there is nothing to indicate in the order that a summary inquiry

was conducted as contemplated under sub-clause (2) of Section 6 of the Act, since the substance of the notice is directing to vacate the land within

the stipulated time and therefore, it cannot be considered as a notice u/s 7 of the Act and there is non-compliance of the requirements of law as has

been contemplated under the Act.

The finding of the learned single judge that the impugned notice is the one u/s 7 is not sustainable and the same is liable to be set aside because,

forcible eviction by revenue authorities without following the legal requirements is bad in law. The authorities are at liberty to take such steps in

accordance with law, after complying with the requirements of Section 7 of the Act. The writ appeal is therefore allowed.