IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 9/12/2005
CORAM
THE HON'BLE MR.JUSTICE P.D.DINAKARAN
W.P. No. 24903 of 2004
and
W.P.M.P. No. 30266/2004
W.V.M.P. No. 959/2005
S. Veerasamy ..Petitioner
-Vs-
1.The State of
Tamil nadu rep.
by its Commissioner of
Land Administration,
Chepauk, Chennai 5.
2.The District Collector,
Kancheepuram District,
Kancheepuram.
3.The Tahsildar,
Kancheepuram. ..Respondents
L.......T.......T.......T.......T.......T.......T.......T.......T.......T....J
Prayer:Petition under Article 226 of the Constitution of India praying for a
Writ of Certiorarified Mandamus as stated therein.
For Petitioner :Mr.Venkatachalapathy,
senior counsel for Mr.M. Sriram
For Respondents: Mr.S. Venkatesh, Spl.G.P.
:O R D E R
By consent, the writ petition itself is taken up for final disposal.
2. Heard both sides.
3. The petitioner has filed this writ petition seeking for the
issuance of a Writ of Certiorarified Mandamus to call for the entire records
of the 3rd respondent in his letter dated 29.7.2004, quash the same and
consequently direct the respondents to grant patta to the petitioner for the
lands in S. Nos.674/B, 720, 721/2, 735, 736, 737 and 73 8 to the total extent
of 3.23 acres situated at Vengatavaram Village, Sevelimedu Mathura,
Kancheepuram District.
4. In the affidavit filed in support of the writ petition, it is
stated that the petitioner is an agriculturist by profession and that he is in
possession of 3.23 acres in S. Nos.674/B, 720, 721/2, 735, 736 , 737 and 738.
In the year 1978, the petitioner sought for assignment of the lands under his
cultivation from the second respondent. In regard thereto, the petitioner was
asked to contact the office of the 3 rd respondent and though several
representations were made by him, he was not favoured with any order of
assignment. According to the petitioner, right from the year 1968, he has
been paying B.Memo charges as demanded by the authorities. In the year 1986,
the petitioner was served with a letter from the office of the 3rd respondent
informing him about the enquiry to be conducted by the Revenue Divisional
Officer, Kancheepuram at 10a.m. on 20.12.1986 and the petitioner was directed
to be present at the time of enquiry. According to the petitioner, the
respondents conducted enquiries regarding the feasibility of assigning the
lands in question to the petitioner.
5. The petitioner has further stated that the respondents were
hesitant to grant assignment in his favour as some portions of the lands in
question were abutting the Sevelimedu lake. Though the report called for from
the Executive Engineer, Public Works Department, Kancheepuram Division in the
year 1984 also stated that there was no impediment for assignment of the
lands, so far, the petitioner had not been granted any order of assignment.
According to the petitioner, he is entitled to assignment since, right from
the year 1968, he is in occupation of the lands. The petitioner, once again,
pursued his claim for assignment in the year 1993 and after conducting an
enquiry, the 3 rd respondent submitted a report that the claim of the
petitioner can be considered favourably. It is further stated that the
Government assigned an extent of 3 acres in S.No.729/2 and lands measuring 39
cents in S.No. 721/3. While so, the petitioner was served with the notice
dated 29.7.2004 stating that the petitioner should remove all the
encroachments within a period of 15 days. Hence, the present writ petition.
6. The main contention raised by the learned senior counsel appearing
for the petitioner is that the third respondent has issued the impugned notice
under Section 6 of Land Encroachments Act, 1905, ( hereinafter be referred to
as ‘the Act’ for short), without issuing a notice under Section 7 of the Act,
which is a condition precedent for issuing notice under section 6 of the Act,
thereby committed violation of the procedure contemplated under the Act.
7. Concededly, the issue is directly covered by the decision of this
Court reported in 1997 (III) CTC 106 (GOODA SRINIVASALU NAIDU -VS- THE
COLLECTOR OF CHENGLEPUT, wherein it is held in paras 9, 10 and 11 as follows:-
“9. It is well settled law that when a power is vested with an
authority under the statute, that power must be exercised strictly in
accordance with the procedure prescribed. Therefor, any departure therefrom
cannot be easily tolerated. In the instant case, the very statute prescribes
the manner in which power should be exercised by the authorities and there is
no provision in the statute to dispense with such a procedure at all. The
statutory prescriptions must have their due significance by observance and
they cannot be allowed to be breached and amelioration therefor cannot be
thought about by saying that the persons affected could participate in the e
nquiry. Merely because such notices under section 7 of the Act had been
periodically served on the petitioner on the earlier occasion itself does not
give a cause of action for the present impugned eviction proceedings dated
18.10.19 86 of the second respondent.
10. It is needless to mention that time and again there are judicial
pronouncements of this Court as well as other High Courts on the point that
unambiguous language of the statute contemplating certain statutory
requirements prescribed in the statute itself cannot be reduced to an empty
formality. Of course, a decision of the division bench of this court reported
in Hamsavalli and etc., v. The Tahsildar, Vridhachalam, South Arcot District,
AIR 1990 Mad 350 and other decision of this Court namely reported in
P.Rameswamy v. The Assistant Engineer, Highways and Rural Works Department,
Nagapattinam, 1977 (I) MLJ 162 : AIR 1978 NOC 223 and a decision reported in
Abbayya v. State of Andhra Pradesh, AIR 1960 AP 135, are to the same effect
that summary eviction proceedings proposed under section 6 is held to be
invalid for non-issue of a prior notice contemplated under section 7 of the
Act.
11. For the above reasons, the writ petition is allowed. No costs.
However, I make it clear that this shall not debar the respondents from
initiating proceedings strictly in accordance with the provisions of the Act
if so required and equally it is open to the petitioner to counteract the same
as per the rights and stand available to him in law”.
8. Hence, following the said decision, the impugned notice, dated 2
9.7.2004 is set aside, of course giving liberty to the respondents to initiate
fresh proceedings strictly in accordance with law, if they are so advised.
9. The writ petition is disposed of accordingly. Consequently, the
connected miscellaneous petitions are closed. No costs.
js
To
1. The Commissioner,
Land Administration,
Chepauk, Chennai 5.
2. The District Collector,
Kancheepuram District,
Kancheepuram.
3. The Tahsildar,
Kancheepuram.