IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16.12.2009 CORAM: THE HON'BLE MR.JUSTICE K.CHANDRU W.P.NO.28212 of 2007 and M.P.NO.1 of 2007 A.Palanisamy ..Petitioner Vs. 1. The Collector, Namakkal District, Namakkal. 2. The Tahsildar, Tiruchengode Taluk, Namakkal District. 3. The Revenue Inspector, Pallipalayam, Tiruchengode Taluk, Namakkal District. ..Respondents Petition filed under Article 226 of the Constitution of India praying to issue a writ of Certiorarified Mandamus calling for the records of the third respondent herein dated 16.8.2007,a notice under Section 5 of the Tamil Nadu Act III of 1905, quash the same and direct the respondents to forbear from dispossessing the petitioner from the land measuring 40 cents situated in S.No.232/5 in Alampalayam Village, Tiruchengode Taluk,Namakkal District. For Petitioner : Mr.T.R.Rajaraman For Respondents : Mr.R.Neelakandan Government Advocate O R D E R The petitioner is occupying the lands measuring 40 cents situated in 232/5 in Alampalayam Village, Tiruchengode Taluk, Namakkal District. 2. The petitioner was apprehending that the respondents may dispossess him without due process of law. Therefore, he filed a writ https://hcservices.ecourts.gov.in/hcservices/ petition being W.P.No.21076 of 2006. This Court, by a final order dated 5.7.2006, gave the following directions: "4. Having regard to the above statement, the statutory respondents are hereby directed to follow the due procedure, if they intend to dispossess the petitioner from the above said poromboke land. The writ petition is disposed off in the above terms. No costs. The connected miscellaneous petition is closed." 3. In the meanwhile, the petitioner sent a representation to the Government stating that he was occupying the land adjacent to his patta land for the past 40 years and from 1990 onwards, he has planted coconut saplings and also put up a compound wall. He has also been paying " B" memo charges. The petitioner had also applied for patta in respect of the encroached land in the year 2003 itself and even though, the Deputy Tahsildar,Tiruchengode had inspected the property, so far he had not been given patta. The petitioner has already spent Rs. 2 lakhs towards the construction of compound wall and the land being an innocuous dry waste, he has unobjected for the grant of patta. The petitioner has also waited before the Deputy Collector to submit his grievance. 4. In the meantime, two other persons in the same village filed a Public Interest Litigation before this Court in W.P.No.22736 of 2007 asking for removal of encroachment in the same Survey No.232/5. In that case, the petitioner was not made as a respondent. However, a Division Bench of this Court by an order dated 07.08.2007 gave a direction to dispossess the encroachers in the land on the following lines, as found in Paragraph 4 of the order: "4.On the facts of the case, when it is admitted that the said property which is the subject matter in the writ petition had been encroached by a third party, it is the duty of the respondents to take action to remove the encroacher. In view of the same, the respondents are directed to take action to remove the encroachment in Survey No.232/5, Alampalayam, Tiruchengode Taluk, Namakkal District by following the due process of law, within a period of three months from the date of receipt of copy of the order." (Emphasis added) 5. Pursuant to the directions issued by the Division Bench, the respondents have issued impugned eviction notice under Section 5 of the Tamil Nadu Land Encroachment Act, 1905. The petitioner did not give any reply. On the contrary he has come forward to file once https://hcservices.ecourts.gov.in/hcservices/ again a writ petition seeking to set aside the encroachment notice and also to restrain the respondents from disposessing the petitioner from the land in his occupation. 6. In the affidavit filed in support of the writ petition, the petitioner has stated that he is having a Thope and having 40 coconut trees standing and he is paying tree tax to the Governnment and therefore he cannot be removed on a mere whims and fancies of certain individuals. Secondly it is stated that already in another writ petition filed by him in W.P.No.27415 of 2007, this Court by order dated 17.8.2007 directed that his representation to be disposed of within eight weeks as found in Paragraph 4 of the said order: "Having regard to the facts and circumstances of the case, the relief sought for by the petitioner cannot be granted in entirety. However, learned counsel for the petitioner has limited the prayer in the writ petition to the extent of directing the respondents to dispose of the petitioner's representation dated 14.8.2006 and 16.7.2007. In view of the same, the first respondent is directed to dispose of the representations of the petitioner dated 14.8.2006 and 16.7.2007 on merits and in accordance with law, within a period of eight weeks from the date of receipt of a copy of this order after giving sufficient opportunity to the parties of the proceedings." 7. Therefore, learned counsel for the petitioner submits that since his representations have not been disposed off, he is entitled to continue in the said property and the issuance of the impugned notice is not valid. 8. Mr.R.Neelakandan, learned Government Advocate produced a proceedings issued by the first respondent-District Collector dated 17.10.2007 stating that since already the Divison Bench had directed to take appropriate steps to remove the encroachment, the encroachment notice was given. But, so far as the petitioners' request for the allotment of grant of patta, the procedings are silent. It merely says that since the present writ petition is pending, the District Collector is unable to take action. It is really a sorry state of affairs where different orders are passed at different times and therefore the parties are in confusion in implementing those orders which are in essence contradictory in nature. In the first writ petition filed by the petitioner, there was a direction to dispossess the petitioner only after due processes of law. In the second writ petition, the petitioner sought for a direction to consider his representation and for the grant of patta for the various reasons set out by him and they were not disposed of. https://hcservices.ecourts.gov.in/hcservices/ In the meantime, at the instance of some third parties, a direction was obtained without making the petitioner a party and the authorities were directed to take appropriate action in accordance with law. 9. Admittedly, the petitioner is in an encorached land. But he has records of his possession for over 40 years. He has also improved the land where 40 standing coconut trees are there. He has also built up a compound wall, which is not denied.The petitioner has also got a direction that his request for patta has to be considered in accordance with law, as the land is only dry waste and it is unobjectionable for grant of patta. His request for grant of patta is pending for the last six years.The direction of the Division Bench has to be understood not as a positive direction to remove the encroachment, but only to consider the third parties' representation, in accordance with law. Therefore, the District Adminsitration cannot interpret the orders of the Court, the way in which they want to interpret. It is also made clear that there is no positive direction by the Division Bench of this Court for removing the petitioner from the alleged encroached land. On the contrary, the Division Bench has only directed the respondents to take action on the representations made by two individuals viz., T.Velayutham and R.Ravi to remove the encrochment within a period of three months in accordance with law. The Division Bench stated that in case of encroachment by a third party, it was the duty of the respondents to take action to remove the encoacher. Therefore, appropriate steps to be taken to remove the encroachment in the Survey number 232/5, Alampalayam, Tiruchengode Taluk, Namakkal District by following due process of law. 10. This cannot be construed as a direction for removal, because due process mentioned therein will also include whether at all there was an encoachment which was objectionable and whether the petitioner was entitled for patta as claimed by him in view of his long possession of the said property. Therefore, the District Collector must consider whether the petitioner's request for patta is feasible. The question of removal of encroachment will arise only after rendering a finding that the encoachment was objectionable and that the petitioner is liable to be removed in accordance with the Act. In the proceedings dated 17.10.2009, the District Collector,Tiruchengode has merely stated that because of the pendency of the present writ petition, he could not take decision on the issue of grant of patta. 11. Therefore, the writ petition is disposed of with a direction to the first respondent to first determine the request made by the petitioner for the grant of patta on the grounds stated by him. If that is rejected, it is only after such rejection and if the encroachment was objectionable than in Public Interest, he shall take appropriate action under the Tamil Nadu Land Encroachemnt Act, 1905. https://hcservices.ecourts.gov.in/hcservices/ Till such time, the first respondent takes a decision on the issue of grant of patta, the impugned notice shall stand suspended. 12. The writ petition is disposed of accordingly. No costs. Consequently, M.P.No.1 of 2007 is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar Vjy To 1. The Collector, Namakkal District, Namakkal. 2. The Tahsildar, Tiruchengode Taluk, Namakkal District. 3. The Revenue Inspector, Pallipalayam, Tiruchengode Taluk, Namakkal District. + 1 c.c. to The Government Pleader. S.R.No.69263. W.P.NO.28212 OF 2007 AND M.P.NO.1 OF 2007 JRG (CO) GSK 04.01.2010. https://hcservices.ecourts.gov.in/hcservices/