Ramaswamy vs The Tahsildar and others

Nainar Sundaram, C.J.—The petitioner in W.P. Mp. 665 of 1991 is the appellant in this writ appeal. The respondents in the writ petition are

the respondents in this Writ Appeal. For the sake of convenience, we are referring (o the parties as per their nomenclature in the writ petition.

The petitioner came to this court by way of the writ petition, projecting the following prayer:

For the reasons stated in the accompanying affidavit, the petitioner herein prays that this Honourable Court may be pleased to issue an

appropriate writ, order, or direction, specifically a writ of certiorarified mandamus under Article 226 of the Constitution of India calling for the

records of the impugned notice dated 31-12-1990 of the first-respondent issued u/S. 6 of the Tamil Nadu Land Encroachment Act, quashing the

same and also directing the respondents 1 to 4 to grant patta to the petitioner in respect of the portion of the land under his occupation in S. No.

320/2C Padi village, Saidapet Taluk or in the alternative to grant lease in favour of the petitioner in respect of the same portion of the land and pass

any such further or other order as this Honourable Court may be pleased to deem fit and proper in the circumstances of the case.

As we could see from the extract of the prayer, it is two fold. One relates to the proceedings u/S. 6 of the Tamil Nadu Land Encroachment Act III

of 1905, hereinafter referred to as the Act. The other relates to the grant of patta in respect of the land occupied by the petitioner from and out of

which the petitioner is being sought to be evicted. Before the learned single Judge, who dealt with the Writ petition, with regard to the attack on the

proceedings under S. 6 of the Act, it was urged that there was no notice under S. 7 of the Act served on the petitioner before the order u/S. 6 of

the Act, impugned in the writ petition, came to be made. The learned single Judge perused the files produced before him by the learned

Government Advocate, who appeared for the respondents, and on such perusal, the learned single Judge found that there is an endorsement that

the notice u/ S. 7 of the Act was refused by the petitioner when sought to be served with the same. The learned single Judge, taking note of the

same repelled the contention advanced on behalf of the petitioner with reference to non-service of notice u/S. 7 of the Act. The learned single

Judge thus opined that there is no infirmity in the impugned order. However, the learned single Judge directed the respondents to consider the

application of the petitioner for grant of patta in respect of the Sand in question. The learned single Judge also granted two months'' time for the

petitioner to vacate the land in question. Subject to what all has been observed as above, the learned single Judge dismissed the writ petition. This

Writ Appeal is directed against the order of the learned single Judge.

The matter, when it came up for admission earlier, we deemed fit to order notice of motion, taking note of the point urged by Mr. S.

Krishnaswamy, learned counsel for the petitioner, that the notice under S. 7 of the Act was not served in the manner prescribed in S. 25 of the

Tamil Nadu Revenue Recovery Act, 1864, or in such other manner as the State Government by Rules or Orders under S. 8 may direct, and

refusal as such even that is the factual position cannot be taken to be proper service of the notice under S. 7 of the Act. Mr. M. A. Sadanand,

learned Government Pleader took notice for respondents 1 to 4 and Mr. T. K. Ramkumar took notice for respondent 5. The learned Government

Pleader took time to get at the relevant records to find out as to how the position with reference to service of notice u/ S. 7 of the Act is reflected

therein. Today when the matter is taken up, learned Government Pleader, after perusal of the records, submits that there is only an endorsement in

the records that notice u/S. 7 of the Act was refused by the petitioner. Thus, we are obliged to examine the question as to whether service could

be held to be sufficient, taking note of the endorsement of refusal found in the records. The relevant part of S. 7 of the Act with reference to

service of notice under that provision reads as follows:

Such notice shall be served in the manner prescribed in S. 25 of the Tamil Nadu Revenue Recovery Act, 1864, or in such other manner as the

State Government by rules or orders u/S. 8 may direct.

Learned Government pleader submits that no rule, as contemplated in the provision extracted above, has been formulated on the question of

service of notice. This obliges us to look into S. 25 of the Tamil Nadu Revenue Recovery Act, 1864. The relevant portion of S. 25 of the said Act

on the question of service reads as follows:

Such demand shall be served by delivering a copy to the defaulter, or to some adult male member of his family at his usual place of abode, or to

his authorised agent, or by affixing a copy thereof on some conspicuous part of his last known residence, or on some conspicuous part of the land

about to be attached.

As we could see from the extract made above, there could be service by delivering a copy to the defaulter, or to some adult male member of his

family at his usual place of abode, or to his authorised agent, or by affixing a copy thereof on some conspicuous part of his last known residence,

or on some conspicuous part of the land about to be attached. So far as refusal of notice is concerned, such refusal and any endorsement to that

effect are not contemplated as sufficient service by S. 25 of the Tamil Nadu Revenue Recovery Act, 1864. In the matter of service of notice under

S. 7 of the Act, when the specific provision of S. 25 of the Tamil Nadu Revenue Recovery Act, 1864 has been invoked, we have to go by the

express verbalism found in that provision on the question of service and it is not possible to stretch it so as to bring in any contingency other than

those set forth in the said provision, as amounting to proper service. This being the legal position, and the factual exposition before us being what it

is, we have to countenance the grievance of the petitioner with reference to the order u/S. 6 , impugned in the writ petition. Accordingly, that part

of the prayer in the writ petition impugning the order under S. 6 of the Act is countenanced and the impugned order will stand quashed. With

reference to the prayer for the grant of patta, we have nothing to express on merits of the claim of the petitioner and, as directed by the learned

single Judge, it is for the respondents to consider that question on merits and in accordance with law. This writ appeal is allowed to the extent

indicated above. We make no order as to costs.

Order accordingly.