R. Sachidhanandham vs The District Collector and Others

R.K. Agrawal, Actg. C.J. and N. Paul Vasanthkumar, J.—This writ petition is filed to quash the order dated 12.2.2013 passed by the

second respondent giving direction to the petitioner to vacate the encroached land of 0.05.0 Ares in S. No. 78/3 and 0.03.0 Ares in S. No. 77/3

of Kilpennathur, Tiruvannamalai Taluk, belonging to the Registration Department within two days, failing which the petitioner will be evicted

forcibly. The case of the petitioner, who is aged 81 years, is that he is residing in the subject lands by putting up construction for over a period of

70 years i.e., from the period of his father viz., Rengaswamy. The petitioner, his sister Sampoornam, her daughter Kalaiarasi and Mangai are in

occupation of the said lands and the said lands are Government lands. The petitioner belongs to harijan community. A hut was put up by the

petitioner''s father, which was subsequently replaced as a permanent structure, about 50 years ago. Petitioner and his family is not having any other

land and the petitioner and two others applied for issuing patta for portion of the said land. Kilpennathur Panchayat Union passed resolution vide

Resolution No. 45 on 30.12.1975 recommending to issue patta. Electricity service connection was given in the name of the petitioner bearing

Service Connection No. 725 in the year 1985. Water supply connection was also given to the said house by Kilpennathur Panchayat. The

Panchayat also assessed property tax to the said house bearing Assessment No. 2652 and house tax is being collected periodically by the

Panchayat. Petitioner was earlier informed that the lands have been allotted for construction of Sub-Registrar''s office as per the revenue records.

Petitioner and other family members sent joint representation on 18.1.1993 to the Revenue Secretary and requested to issue patta, as patta was

issued to similarly placed persons, who were in occupation of Kulam Poromboke behind petitioner''s house. On 11.5.1993 and 3.5.2000,

Tahsildar informed that the Revenue Department is unable to issue patta to petitioner and others. On 12.2.2013 all of a sudden, the Sub-Registrar

Kilpennathur issued the impugned eviction order giving only two days time to vacate, without following the due process of law viz., provisions of

the Tamil Nadu Land Encroachment Act, 1905. On 13.2.2013 petitioner, through his counsel, sent a representation to provide 15 days time to

give proper reply along with supporting documents. No action being taken and petitioner apprehending demolition of the house and forced

eviction, filed this writ petition on 15.2.2013, which was posted for hearing on 20.2.2013 on which date, an order of status-quo was ordered.

The second respondent filed counter affidavit stating that the lands in question are owned by the Registration Department. The Government also

sanctioned funds for construction of new building for the Sub-Registrar''s office. Hence the Sub-Registrar issued proceedings on 12.2.2013

directing the petitioner to vacate the lands in question and the petitioner having not vacated within two days, the building was demolished on

19.2.2013 and the place is now vacant. A photograph showing demolition of the building is also filed in the typed set of papers.

In the light of the above said averments the point to be determined in this case is as to whether the eviction proceedings initiated against the

petitioner and the order passed are valid or not.

The possession of the petitioner and his father for several years is established by the grant of electricity service connection by the Tamil Nadu

Electricity Board and water supply connection by the Panchayat. The petitioner is also paying house tax to the Panchayat. As on 12.2.2013,

petitioner was in possession of the land and building is not disputed. In the impugned order itself it is clearly stated that the petitioner, who is in

possession of the land and building should vacate within two days, failing which he will be forcibly evicted. In such circumstances, the competent

authority is bound to follow the due process of law viz., the provisions of the Tamil Nadu Land Encroachment Act, 1905. Under the provisions of

the said Act, eviction can be ordered u/s 6 only after issuing notice u/s 7 by calling for objections and after considering the objections. Sections 7

and 6 read as follows:

Prior notice to person in occupation.- Before taking proceedings u/s 6, the Collector or Tahsildar or Deputy Tahsildar or Revenue Inspector or

any authorized officer or any other officer specified by the State Government in this behalf not being an authorised officer (hereinafter referred to as

the ""specified officer""), as the case may be shall cause to be served on the person reputed to be in unauthorised occupation of land being the

property of 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 u/s 6. Such notice shall be served in the manner prescribed in section 25 of the Tamil Nadu Revenue Recovery Act, 1864

(Tamil Nadu Act II of 1864), of or in such other manner as the State Government by rules or orders u/s 8 may direct:

Provided that no such notice shall be necessary in the case of any person unauthorisedly occupying any land, if he has been previously 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 under this section:

Provided further that where the notice under this section is caused to be served by any Revenue Inspector or any specified officer, he shall require

the person reputed to be in unauthorised occupation of the land to show cause against such notice to the Collector, Tahsildar or Deputy Tahsildar

or authorised officer having jurisdiction, as the case may be, and shall also make a report in writing containing such particulars as may be specified

in rules or orders made u/s 8 to the Collector, Tahsildar or Deputy Tahsildar or authorised officer having jurisdiction, as the case may be.

Liability of person unauthorisedly occupying land to summary eviction, forfeiture of crops, etc.-

(1) Any person unauthorisedly occupying any land for which he is liable to pay assessment u/s 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 ''authorised 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) Mode of eviction.- 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 the authorised 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 just 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 of any

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, 1860 (Central Act XLV of 1860), 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 u/s 8 to the Collector, Tahsildar or Deputy Tahsildar having jurisdiction.

Thus, the respondents are bound to follow the said procedures before evicting a person in occupation. The District Collector, Tiruvannamalai

District, in his letter dated 7.2.2013 directed the Tahsildar, Tiruvannamalai, to take appropriate action to evict the encroachment. The said letter

reads thus,

From

Dr.Vijay Pingale,I.A.S.

DistricCollector

,iruvannamalai District,

Tiruvannamalai.

To

Tahsildar,

Tiruvannamalai

Letter No. B2/1671/2013 dated 07.02.2013

Sir,

Sub: ENCROACHMENT Tiruvannamalai District and

Taluk ''eviction of encroachment of the place belong to Sub Registrar''s Office, Kilpennathur''

Reg.

Ref: Sub Registrar, Kilpennathur letter No. 106/C/12 dated 24.01.2013.

Land comprised in two Survey number 78/3 and 77/3 in Kilpennathur Village, Tiruvannamalai Taluk and District measuring 8616 sq.ft being the

Government poromboke land has been allotted to the Sub Registrar''s Office. Since the same is under encroachment of an individual, it become an

obstacle for construction of building for the office and requested in the letter cited to remove the encroachment. Hence, it is requested to take

appropriate action in this petition to remove the encroachment and to send the details therefor to this office.

Sd/- M. Pandiammal,

for District Collector,

Tiruvannamalai.

/ By Order /

Sd/- xxxxx 8.2.2013

Head Sharishdar (B)

Copy to: Sub-Registrar, Sub Registrar''s Office,

Tiruvannamalai Taluk & District,

for information.

District Registrar (Administration) (i/c),

Tiruvannamalai.

Even after the order passed u/s 6, statutory appeal is provided u/s 10 of the Act before the Competent authority. Admittedly, the said mandatory

procedures are not followed in this case by the Tahsildar, Tiruvannamalai or the Sub-Registrar, Kilpennathur, Tiruvannamalai District. It is clear

infraction of the legal procedures.

The Full Bench of this Court in the decision reported in Ramaraju Vs. The State of Tamil Nadu and Others, held that a person, who is in

possession must be put on notice and mandatory procedures are to be followed under the Tamil Nadu Land Encroachment Act, 1905, before

ordering eviction. Thus, the action of the Sub-Registrar, Kilpennathur in passing the impugned order and the consequential demolition carried out

on 19.2.2013 without even waiting for the expiry of 15 days time allegedly prayed for by the petitioner, is a clear case of high handedness on the

part of the Sub-Registrar, Kilpennathur. As the building is demolished as on today and the land belongs to the Government, we are not inclined to

quash the order now. However, we are expressing our strong disapproval of the action of the Sub-Registrar and give liberty to the petitioner to file

appropriate suit claiming adequate compensation for the loss sustained as well as mental agony, against the officer, who passed the illegal order of

eviction and if any such suit is filed, the competent civil court will decide the claim of compensation in accordance with law, within six months.

The writ petition is disposed of accordingly. No costs. Connected miscellaneous petition is closed.