T.Shanmugam & Anr. vs The District Collector & Ors.

By consent, this Writ Petition is taken up for final disposal.

The petitioners claim that land and properties in S.F.No.771/1, Kumarapalayam Village, Thiruchengode Taluk, Namakkal District, admeasuring to an extent of 4.32 acres was purchased by his grandfather Thanda Gounder and through partition, it was allotted in favour of his father and on account of his old age, he is unable to administer the property and as on today, the petitioner is managing the property. The petitioners would further aver that lands in S.No.77 consists of 6.32 acres and on 11.06.1964, his grandfather and his brother had purchased 5/9th share of the property and thereafter, his father had purchased 1/9th share by way of registered sale deed dated 12.03.1973 and as such, his father totally own an total extent of 3.04 ? acres in the said survey number and as per oral partition, the entire property in S.No.77 was allotted to his grandfather and he was in peaceful possession and enjoyment of the same. It is averred that without putting either the father of the petitioner or the petitioner any notice, re-survey was done and it was subdivided into S.No.77/1 and S.No.77/2 and further S.No.77/2 was sub-divided into S.No.77/2A and S.No.77/2B and the entire lands in S.No.77/1 was classified as "Lake" (Water Body). The third respondent proceeded further and issued the impugned notice dated 04.07.2017 under Section 6 of the Tamil Nadu Land Encroachment Act, 1905 and challenging the legality of the same, the petitioners have filed this writ petition.

The learned counsel appearing for the petitioners has drawn the attention of this Court to the typed set of documents and would submit that the petitioners predecessor in title and the petitioners had established the right and title in respect of the lands in question through authenticated documents and while effecting subdivision, land owners have not been put on notice and erroneously the lands in S.No.77/1 was classified as "Lake" (Water Body) and as on today, the petitioners are carrying on agricultural operations in the said lands and also invited the attention of this Court to the documents evidencing the same and in the light of the same, the impugned notice is liable to be quashed.

Per contra, Mrs.M.E.Rani Selvam, learned Additional Government Pleader appearing for the respondents has drawn the attention of this Court to the counter affidavit of the third respondent and would submit that during the year 1984, the lands in S.No.77 was sub-divided into S.No.77/1, with an extent of 4.64 acres, which was classified as Eri (Lake) and S.No.77/2, with an extent of 1.98 acres, which was classified as patta land registered in the names of Veerapagounder and others. The lands in S.No.77/2 was further sub-divided into S.Nos.77/2A and 77/2B and in "A" Register, the lands in S.Nos.77/2A and 77/2B was classified as Patta lands and whereas the lands in S.No.77/1 was noted as "Eri" (Lake) and therefore would contend that the petitioners have encroached on the water body and carrying on agricultural operations and due process of law is followed to evict them. The learned Additional Government Pleader appearing for the respondents would further submit that the petitioners are having an effective alternative remedy by way of appeal under Section 10 of the Tamil Nadu Land Encroachment Act, 1905 and as such, the present writ petition is not maintainable.

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

The primordial submission of the learned counsel appearing for the petitioners is that while sub-dividing the lands, either the petitioners predecessor in title or the petitioners were not put on notice and erroneously the lands in S.No.77/1 was classified as water body and drawn the attention of this Court to the documents filed in support of this petition and would submit that in the lands in S.No.77/1, agricultural operations are being carried out and also produced necessary receipts evidencing the same. Whether the lands in S.No.77/1 is a patta land or not and whether the subdivision was effected without putting the petitioners predecessor in title revolve around adjudication of disputed question of facts. It is also pertinent to point out at this juncture that against initiation of proceedings under the Tamil Nadu Land Encroachment Act, 1905, the petitioners are having effective alternative remedy by way of Appeal under Section 10 of the said Act along with a petition for stay pending disposal of the appeal.

It is relevant to extract Sections 10 and 10-B of the Tamil Nadu Land Encroachment Act, 1905: "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."

In the light of effective alternative remedy available, the petitioners are at liberty to file an appeal under Section 10 along with a petition for Stay under Section 10-B of the Tamil Nadu Land Encroachment Act, 1905 to the first respondent/Collector of Namakkal District, challenging the impugned notice issued by the third respondent dated 04.07.2017, by enclosing a copy of this order as well as relevant authenticated documents within a period of four weeks from the date of receipt of a copy of this order and upon receipt of the same, the Collector of Namakkal District or his delegated official shall entertain the appeal along with the petition for stay, if the papers are otherwise in order and shall take up the petition for stay initially and give disposal on merits and in accordance with law within a period of two weeks thereafter. The Collector of Namakkal District or his delegated official shall also take up the main appeal itself and give disposal on merits and in accordance with law within a period of eight weeks from the date of entertainment of the appeal and communicate the decision taken, to the petitioners. It is made clear that till the disposal of the appeal by the Collector of Namakkal District or his delegated official, the third respondent shall defer further proceedings in terms of the impugned notice and the petitioners also shall not create any third party rights in respect of the land and properties in question and shall not alter it''s physical features also.

This Writ Petition is disposed of accordingly. No costs. Consequently, connected miscellaneous petitions are closed.