IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.4.2008 CORAM THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL WRIT APPEAL NO.705 of 2007 and M.P.No.1 of 2007 K.K.R.Farm Oil India Limited rep. by Mr.K.Mathiaharan Son of Mr.Kumaragurubaran No.26, Orakkadu village Sholavaram Post Ponneri Taluk Tiruvallur District ..Appellants vs. 1.The District Collector Tiruvallur District Tiruvallur 2.The Tahsildar Ponneri Taluk Tiruvallur District ..Respondents Writ Appeal is filed againt the order dated 18.4.2007 passed by Hon'ble Mr.Justice K.Mohanram in W.P.No.4892 of 2007 – Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorari, calling for the records relating to impugned notice in Na.Ka.473/07/A.1 dated 24.01.2007 under Section 6 of Act 3 of 1905 by the second Respondent and quash the same. for appellant : Mr.S.V.Jayaraman senior counsel for Mr.M.Kempraj for respondents : Mr.S.Gopinathan, A.G.P., https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT (Judgment of the Court was made by ELIPE DHARMA RAO,J.) Aggrieved by the order passed by the Tahsildar, Ponneri, Tiruvallur District invoking power under Section 6 of Act 3 of 1905 issuing notice that the appellant/petitioner is enjoying the land situated in Survey No.26, Grama Natham an extent of 5.89.0 Hectare (14.55.acres), the total extent in Survey No.26 (14.55 acres) enjoyed by the appellant/petitioner consisting Boundary Compound Wall, K.K.R.Palm Oil India Ltd., N.A.A.Trading Co., K.K.R.Brick Industry, Kamaraj Weighing Scale and others through Thorn Fencing without paying tax under Section 6 of Act 3 /1905, therefore, the appellant was ordered to vacate the abovesaid land within 15 days from 24.1.2007, i.e., date of notice and in the event of failure to do so, apart from evicting in the shortest method, any crop or any valuables grown on the said land, any building or shed or any thing kept over the land will be seized and the Sholavaram Firka Revenue Inspector has been given powers to possess all those things that are liable to be removed and seized and to keep under safe custody till receipt of an order from the Collector as to what has to be done for the same. After receiving the abovesaid notice, a legal notice was given by the appellant on 1.2.2007 stating that the land is a "Grama Natham" and the appellant is in possession and enjoyment of the same for more than three decades and put up superstructure over the same land and he is in absolute possession and enjoyment of the same paying necessary tax to the Government and thereafter, the writ petition is filed. The learned single judge after considering the arguments advanced by the appellant/petitioner dismissed the same on the ground of availability of alternative remedy under Section 10 of the Act. Against which the present Writ Appeal is filed. 2. The learned counsel for the appellant reiterated the arguments with regard to the compentence, power and authority of the Tahsildar to issue Section 6 notice and submitted that when the land on which superstructure is put by the appellant and the appellant is enjoying the same for the last three decades and when it is a `Grama Natham', it vests with the `Grama Panchayat' and the `Grama Panchayat' alone has got the power to take steps to vacate the appellant and not the Tahsildar and therefore, the impugned order is liable to be set aside. 3. The learned Government Advocate would submit that based on the written instructions received on 22.1.2008 that the gist of the case is that the appellant K.K.R. Farm Oil Limited has enclroached an extent of 5.89.0 hectares (14.44 acres) of Government Land in S.No.26 of Orakkadu village, Ponneri Taluk which is classified as `Grama Natham'. The villagers of Orakkadu have objected for having encroached by the Company and requested for eviction and issue of pattas for the poor and landless Adidravidar people of the village https://hcservices.ecourts.gov.in/hcservices/ who are residing in the village and hence notice under Section 6 of the Act was issued to the encroacher on 24.1.2007. 4. Considering the above submissions made by both the learned counsel appearing for the parties, we are of the view that on the one side the learned counsel for the appellant has submitted that when as agreed by the Government the land is a `Grama natham' and it vests with the `Grama Panchayat' and the `Grama Panchayat' alone is having the power to evict the appellant/petitioner if he is an encroacher and therefore, the respondent has no power to invoke the provisions of the Land Encroachment Act and issue of notice under section 6 of the Act. But it is pertinent to note that the Tahsildar is not aware of the provisions of the Tamil Nadu Land Encroachment Act, 1905 before initiating action under Section 6 of the Act. When the appellant has failed to pay the tax to the Government under Section 3 of the Act, a prior notice has to be issued to the occupant of the above Government land before proceeding under Section 6 of the Act, by the Collector or Tahsildar or Deputy Tahsildar or Revenue Inspector or any authorised officer or any other officer specified by the State Government. Such notice shall be served in the manner prescribed in section 25 of the Tamil Nadu Revenue Recovery Act, 1864 or in such other manner as the State Government by rules or orders under Section 8. Therefore, as seen from the impugned proceedings, instead of issuing notice under Section 7 of the Act, notice under Section 6 of the Act is directly issued. Section 6 contemplates passing a final order to summarily evict or forfeiture of crops of the Government land, i.e, any person unauthorisedly occupying any land for which he is liable to pay assessment under Section 3 of 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 authorised by the State Government in this behalf. Therefore, in view of the above provision of law, the nature of the land is not in dispute. 'Grama Panchayat' alone has got power to evict the petitioner and not by the Tahsildar. Even for any reason if it is assumed that the Tahsildar has got power, he has to issue prior notice under section 7 of the Act before proceeding under section 6 for eviction. Therefore, the impugned order is quashed. The order of the learned single Judge is set aside. 5. When the impugned order is passed without following the procedure contemplated under the Act, the question of filing the appeal does not arise. Accordingly, we are unable to accept the reasons of the learned single Judge. 6. After considering the request made by the learned Government Advocate it is needless to mention if they are so desired to evict the appellant/petitioner, they can proceed as well, as per the procedure contemplated under law. https://hcservices.ecourts.gov.in/hcservices/ 7. The Writ Appeal is allowed. No costs. Consequently, connected pending M.P.No.1/2007 is disposed of. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. sal To 1.The District Collector Tiruvallur District Tiruvallur 2.The Tahsildaror Ponneri Taluk Tiruvallur District + 1 CC To Mr.M.Kempraj, Advocate SR NO.20344 + 1 CC to the Government Pleader SR NO 20479 W.A.No.705/2007 and M.P.No.1 of 2007 akr[co] gp/28.4. https://hcservices.ecourts.gov.in/hcservices/