S. Mari and Others vs The President Gnayiru First Grade Panchayat Sholavaram and Others

T.S. Sivagnanam, J—The petitioners have filed these writ petitions praying for an issuance of writ of certiorari to quash the impugned notice dated 27-10-2013 in and by which the petitioners have been directed to vacate the encroachment in survey Nos. 911/1A which has been classified as Meikkal Poramboke and handover possession within a period of three days failing which action will be taken against them.

The petitioners'' claim themselves to be agricultural coolies who are residing at Attapalayam Village and they are staying in a small thatched house along with their family members and the respondent-Village Panchayat collected the property tax for their house. It is stated that on 03-10-2013 one Mr. Gengan and Mr. Ramesh who belong to Gnayiru Village came to the petitioners'' village and they put up huts in the said land. The local villagers and the petitioners protested to the same stating that they are acting like land grabbers and cannot be allowed to put any huts in their village. It is stated that three ladies belonging to the petitioners'' village were beaten up by Gengan and Ramesh and in this regard, complaints have been lodged before the District Collector, Tahsildar, Revenue Divisional Officer and Inspector of Police. It is stated that the revenue administration has not taken any action nor the police authorities have registered a case. Therefore, the plea of the village staged a demonstration in the Attapalayam bus stand on 25-10-2013 and this news was widely reported in the Tamil dailies. It is further submitted that after the land grabbing attempt of Gengan and Ramesh became public, the Tahsildar rushed to the village and removed one hut put up by them. Thereafter only the petitioners came to know that the first respondent, the Panchayat President has played a very vital role in permitting these two persons in encroaching the village lands and putting up huts.

The petitioners would further state that since the petitioners agitated the land grabbing of those two persons, the impugned notice dated 27-10-2013 was passed and without serving the same to them, it has been pasted on the petitioners thatched house alleging that they have encroached the Meikkal Poramboke land and that the land comes under the Social Forest Scheme and the savukku form was encroached by them and that they have to vacate the same within a period of three days. The petitioners would state that they are living in the said house for more than 12 years and they have paid house tax to the first respondent-Panchayat and the allegation that the land is classified as Meikkal Poramboke is incorrect and the action has been initiated by the first respondent only on account of the protest which the petitioners have made against the illegal encroachment of two persons from the neighbouring village who according to the petitioners came into the petitioners village at the instance of the President of the first respondent-Village Panchayat. The petitioners have challenged the impugned order as unfair and arbitrary and the same has been issued without issuing a show cause notice calling for explanation and the respondent without taking into consideration the ration card, voters'' Id, house tax receipts had arbitrarily called upon the petitioners to vacate the premises within a period of three days from the date of notice. Therefore, it is submitted that the impugned order is arbitrary and illegal.

At the time when the writ petition was entertained, this Court granted an order of interim stay of further proceedings pursuant to the impugned notice and the possession of the petitioners not to be disturbed until further orders. The interim order continues to remain in force till date.

The first respondent filed a counter affidavit along with the vacate stay petition wherein it is contended that the petitioners are the encroachers of Meikkal Poramboke land and therefore, action was initiated. Further it is submitted that the house tax receipts have been received in respect of another old house and not in respect of the house which the petitioners have stated as in S. No. 911/1A. Therefore, it is submitted that the contention raised by the petitioners that house tax has been collected in respect of the house in the Meikkal Poramboke land is factually incorrect. In the counter affidavit, the first respondent has admitted that Gengan and Ramesh are encroachers and the petitioners along with seven others quarrelled with new encroachers and demanded them to remove the construction. Subsequently, the Revenue Divisional Officer, Ponneri, Tahsildar, Ponneri and the Block Development Officer, Sholavaram had discussion with the agitators and thereafter only they have withdrawn the road rokho and the petitioners have not removed the huts, as per the statement given by them. Further, it is submitted that the impugned notice has been given as per the instructions of the Tahsildar, the Block Development Officer who have thoroughly inspected the land and notice was served to the seven other encroachers including the petitioners giving them three days'' time to vacate the encroachment. Therefore, it is stated that the impugned notice was issued and the petitioners have to handover vacant possession of the property to the Panchayat.

Though in the counter affidavit it has been stated that the impugned notice have been issued on the instructions of the revenue officials, the Tahsildar, Ponneri Taluk, Thiruvallur District, who has been impleaded as a fourth respondent has not filed any counter. Further in the written instruction, in respect of these writ petitioners, the Tahsildar has made the following allegations:

It has to be noted that the allegations mentioned above do not find place in the impugned notice. Furthermore, in the written instruction it is stated that in respect of persons who are residing in the Meikkal Poramboke for over five yeas their possession has been regularised and only remaining extent is being utilised for the Social Forest Scheme. Therefore, the question would be as to whether the petitioner is in possession for five years and if the respondents have regularised the possession of other persons, it has to be seen as to why the petitioners'' possession should not be regularised. The further allegation in the counter affidavit of the first respondent is that the property tax issued to the petitioner is in respect of survey No. 911/50,51 and 52 and not the land in survey No. 911/1A. This is also a question to be adjudicated upon by the appropriate authority, after notice to the petitioner. The learned counsel for the respondent submitted that no notice is required to be issued to the petitioner when the land has been encroached by the petitioners, more so, when the first respondent has initiated action under Section 131 of the Tamil Nadu Panchayat Act, 1994. It is seen that in terms of sub-section 2, it shall be the duty of the Village Administrative Officer of every village to report any encroachment of properties vested in Village Panchayats or Panchayat Union Councils to the Executive Authority or the Commissioner concerned and to the officer of the Revenue Department, and it shall be the duty of the Executive Authority or the Commissioner concerned either suo motu or on obtaining a report from the Village Administrative Officer in this regard to institute proceedings under this Act and secure the removal of the encroachments within such time as may be specified by the Government by general or special order and further states that, if the removal of the encroachments has not been secured within the period specified in such order, the officers of the Revenue Department shall institute proceedings under the Tamil Nadu Land Encroachment Act, 1905 (Tamil Nadu Act III of 1905) and secure such removal.

In terms of the above provision, the first respondent has not been in a position to secure the possession within the time stipulated. Therefore, the competent authority will be the revenue department which has to resort to the provisions of Tamil Nadu Encroachment Act, 1905 and secure possession. The first respondent has admitted that he has not taken any suo motu action but it was on the intimation or direction given by the first respondent. Therefore, the first respondent cannot rely upon Section 131(2) of the Act to state that he has proceeded unilaterally, without giving any notice.

In the light of the above provision, taking into note of the facts of the case and the allegations made against the petitioner which could be seen from the written instructions given by the Tahsildar, Ponneri to the learned Government Advocate, the impugned notice had to be held as bad in law, arbitrary, unreasonable and is in violation of the principles of natural justice.

Accordingly, the writ petitions is allowed and the impugned order is quashed with a direction to the Tahsildar, Ponneri to proceed in accordance with law. No costs. The connected miscellaneous petitions are closed.