1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 10.10.2011 CORAM: THE HONOURABLE MR.JUSTICE K.N.BASHA AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL Writ Petition (MD)No.11380 of 2011 and M.P.(MD)Nos.2 and 3 of 2011 M/s.Kathirvel Textiles Private Ltd., rep.by its Directgor M.Lakshmanan, Karaikudi-Thiruppathur Road, Nachiapuram-630 207, Sivagangai District. : Petitioner Vs. 1.The Principal Commissioner and Secretary to Government, Revenue Department, Fort St.George, Chennai-600 009. 2.The Collector, Sivagangai District, Sivagangai. 3.The Tahsildar, Thiruppathur Taluk, Sivagangai District. : Respondents Writ Petition under Article 226 of the Constitution of India praying for issuance of a Writ of certiorari calling for the records relating to the impugned orders passed by the 3rd respondent in his notice, dated 22.02.2010 and consequently, 2nd respondent in his proceedings Na.Ka.E4/10186/2010, dated 19.05.2010 and confirmed by the 1st respondent by his letter No.28016/Ni.Mu.6(2)/2010-5, dated 12.08.2011 and quashing the same. For Petitioner : Mr.A.Thirumurthy For Respondents : Mr.K.Mahendran, Spl.Govt.Pleader. O R D E R [Order of the Court was made BY K.N.BASHA, J] Challenge in this writ petition is to the orders passed by the 3rd respondent in his notice, dated 22.02.2010, the order passed by 2nd respondent in his proceedings Na.Ka.E4/10186/2010, dated 19.05.2010 and confirmed by the 1st respondent by his letter No.28016/Ni.Mu.6(2)/2010-5, dated 12.08.201. 2.Mr.K.Mahendran, learned Special Government Pleader, takes notice on behalf of the respondent. By mutual consent of the learned counsel for both the parties, the main writ petition itself is taken up for final hearing at the admission stage itself. https://hcservices.ecourts.gov.in/hcservices/ 2 3.The case of the petitioner is that he is the owner of the punja land, to an extent of 12.62 acres, in Survey No.419/2 in Siravayal Village, in Thiruppathur Taluk, Sivagangai District. He purchased the said property by way of registered sale deed No.1629 of 1980, dated 21.10.1980. From the date of purchase of the said land, the petitioner is in peaceful possession and enjoyment of the same. While so, the Special Tahsildar (Adi-Dravidar Welfare), by his proceedings dated 13.06.2006, informed the petitioner that he had encroached upon the land in S.F.NO.419/1 and called upon him to appear for a personal enquiry on 20.062006. The petitioner gave a detailed reply, enclosing documents, to substantiate his claim of title to the property. He had also attended the enquiry on 01.07.2006 and explained all the details, in person. 4.Thereafter, on 05.02.2010, he received a notice under Section 7 of the Tamil Nadu Land Encroachment Act, 1905 (in short "the Act") reiterating the same allegation of encroachment of the land in S.F.No.419/1. Again the petitioner gave a detailed reply, enclosing documents, on 15.02.2010, denying encroachment and other allegations. The 3rd respondent, without holding any enquiry, issued an order on 22.02.2010, under Section 6 of the Act directing the petitioner to demolish the building within 15 days, failing which the land and building will be forfeited by the respondents. 5.On the ground that the said notice, dated 22.02.2010, does not refer to the notice issued under Section 7 of the Act as well as the reply made by the petitioner on 15.02.2010 and it also does not contain the actual extent of land said to have been encroached and the nature of building constructed thereon, the petitioner preferred an appeal under Section 10(B) of the Act before the Revenue Divisional Officer, Devakottai, on 26.02.2010 and also prayed for stay of the order dated 22.02.2010. However, during the pendency of the appeal, the Tahsildar, Thiruppathur, demolished the compound wall in S.F.No.419/2. 6.In order to safeguard his property, the petitioner filed a writ petition in W.P.(MD)No.2511/2010 against the order dated 22.02.2010. He also filed a stay petition seeking for the relief of stay of operation of the said order. This Court,passed an order on 02.03.2010, which reads as under: "Since we are inclined to permit the petitioner to workout its remedy before the statutory appellate authority, we are not inclined to examine such contentions raised by the petitioner on merits. We, therefore, direct the petitioner to file its appeal within the period of limitation prescribed under Section 11 of the Act before the District Collector along with necessary application for interim order provided under Section 10(B) of the Act. If the Petitioner files the appeal within the time prescribed under Section 11 of the Act, we only direct the District Collector to consider the Petitioner's appeal as well as application for interim order, expeditiously, preferably within three months from the date of filing of such appeal. Till such time the District Collector passes orders either in the stay petition or in the main appeal itself, the status-quo as on date shall be maintained by the parties." https://hcservices.ecourts.gov.in/hcservices/ 3 7.As per the direction of this Court, the petitioner preferred an appeal before the District Collector, Sivagangai, and prepared for setting aside the order of the Tahsildar, Thiruppathur, dated 22.02.2010. But, the District Collector passed the order dated 19.05.2010 rejecting the appeal preferred by the petitioner. Aggrieved over the same, the petitioner preferred a revision petition under Section 10-A(1)(c) of the Act on 06.06.2010 before the 1st respondent. Pending revision, the petitioner requested the District Collector, Sivagangai District, under the Right to Information Act, on 10.06.2010 to issue SLR for Survey Nos.419/1 & 419/2 for the year 1961 and the office of the District Collector in the proceedings in O.Mu.(G2)22359/2010 Na.Vi./467/10, dated 01.07.2010, has stated that on verification of entry SLR for Siravayal Village, there was no entry of survey Nos.419/1 and 419/2 and as such they could not issue SLR for the above said survey numbers. However, patta was issued by the Regiaional Deputy Tahsildar, Thirupattur, as well as the Tahsildar, Thiruppathur, in respect of Survey Nos.419/2. 8.As the revision preferred by the petitioner on 06.06.2010 was pending without any disposal, the petitioner approached this Court by filing writ petition in W.P.(MD)No.11246 of 2010 and the Division Bench of this Court passed an order on 06.09.2010, which reads as under: "5.In view of the above rival submissions of the learned counsel, without going into the merits of the case and without expressing any opinion regarding merits of the Revision, we are inclined to dispose of this Writ Petition with a direction to the first respondent to dispose of the said Revision on merits, if the same has been filed in time and if the same has not been disposed of so far, strictly in accordance with law, after affording sufficient opportunity to the petitioner, within a period of three months from the date of receipt of a copy of this order. IN the meanwhile, since the petition filed by the petitioner for stay in the Revision under Section 10-B of the Act is pending and no order has been passed so far, we direct the respondent to maintain status quo till the said stay petition is decided." 9.Thereafter, the Under Secretary to Government, Revenue Department, by his proceedings dated 16.11.2010, directed the petitioner to send his further representation, written statement and further documents in connection with his revision petition. As per the said direction, the petitioner sent his representation dated 29.11.2010, enclosing additional documents. While the petitioner was waiting for an opportunity of personal hearing in the revision, the 1st respondent, by his proceedings dated 12.08.2011, has rejected the said revision petition stating that the petitioner ought to have filed the revision petition before the Commissioner of Land Administration, Chennai. Aggrieved by the said order, the present writ petition has been filed by the petitioner for the aforesaid relief. 10.Mr.A.Thirumurthy, learned counsel appearing for the petitioner, would submit that the impugned order passed by the 1st respondent is liable to be set aside as the 1st respondent has not assigned any valid reason for rejecting the revision petition. It is pointed out that the revision was rejected on the ground that the petitioner ought to have preferred the revision before the Commissioner of Land Administration https://hcservices.ecourts.gov.in/hcservices/ 4 and instead he has preferred the revision before the Government. It is contended that as per the direction of this Court in the order dated 06.09.2010, made in W.P.(MD)No.11246/2010, the 1st respondent alone was directed to consider the revision petition on merits, after affording sufficient opportunity to the petitioner and to pass orders. But, the present impugned order passed by the Principal Secretary to the Government, Revenue Department, rejecting the same on the above said ground. The learned counsel would contend if the 1st respondent was of the opinion that the petitioner should have preferred revision before the Commissioner of Land Administration, the Principal Secretary to the Government, Revenue Department, ought to have sent the file relating to the revision preferred by the petitioner to the Commissioner of Land Administration as if the revision was preferred only before the said authority and this Court has also given specific direction only to the said authority to consider and pass orders on merits, after affording opportunity to the petitioner. It is submitted that absolutely there is no fault on the side of the petitioner and as per the provisions of the Act, he has preferred the revision before the competent authority, namely the Principal Secretary to the Government, Revenue Department. It is further contended that even the said impugned order was passed without any notice and without affording an opportunity of hearing and as such the same is liable to be set aside. 11.Mr.K.Mahendran, learned Special Government Pleader, would submit that on 29.11.2010 the petitioner only preferred representation to the first respondent, namely the Principal Secretary to the Government, Revenue Department. It is contended by the learned Special Government Pleader that as per Section 10-A(1)(b) of the Act, the petitioner should have sent the revision only to the Commissioner of Land Administration and not to the Principal Secretary to the Government, the 1st respondent herein. The learned Special Government Pleader would further contend that the petitioner has not preferred the revision before the competent authority, namely the Commissioner of Land Administration and instead he has preferred the revision before the 1st respondent, namely the Principal Secretary to Government, Revenue Department. It is submitted that since the petitioner has shown the 1st respondent only even in the earlier writ petition in W.P.(MD)No.11246 of 2010, this Court directed the 1st respondent herein to dispose of the revision petition. 12.We have carefully considered the rival contentions put-forth by the counsel on either side and perused the materials on record, including the impugned order. 13.At the outset, it is to be stated that the petitioner earlier filed a writ petition before this Court in W.P.(MD)No.11246 of 2010 stating that he has already preferred a revision under Section 10-A(1)(c) of the Act as early as on 06.06.2010 but the same was not disposed of by the 1st respondent, namely the Principal Commissioner and Secretary to Government, Revenue Department. A Division Bench of this Court, by order dated 06.09.201, without going into the merits of the revision, directed the 1st respondent, namely the Principal Commissioner and Secretary to Government, Revenue Department, Chennai, to dispose of the revision petition on merits, strictly in accordance with law and after affording sufficient opportunity to the petitioner within a period of three months from the date of receipt of a copy of the order. Therefore, it is crystal clear that only the Principal Commissioner and Secretary to Government, Revenue Department, https://hcservices.ecourts.gov.in/hcservices/ 5 Chennai, the 1st respondent herein, was directed to consider the revision already filed by the petitioner on 06.06.2010, on merits and after affording an opportunity of hearing to the petitioner. But curiously, the impugned order herein, dated 12.08.2011, was passed by the Principal Secretary, Revenue Department, rejecting the revision preferred by the petitioner on the ground that the petitioner ought to have preferred the revision before the Commissioner of Land Administration. It is seen that in the impugned order it was further stated that the encroachment was removed after following the procedures contemplated under Sections 5, 6 and 7 of the Act. Therefore, it is crystal clear that the said revision was dismissed on two grounds, namely on the ground that the revision was not preferred before the competent authority and on the ground of merits also. 14.It is contended by the learned Special Government Pleader that as per the provision of Section 10-A (1)(b) of the Act, the revision is to be preferred only before the Commissioner of Land Administration and as such the petitioner has wrongly preferred the revision before the 1st respondent herein. For better appreciation, Section 10-A(1) of the Act is extracted and it reads hereunder: "10.A.Revision-(1) Any decision or order passed under this Act may be revised either suo motu or on application- (a)by the District Collector, if such decision or order was passed by a Deputy Tahsildar, Tahsildar or Collector; (b)by the Commissioner of Land Administration if such decision or order was passed by any officer other than the appellate authority; (c)by the State Government, if such decision or order was passed by the appellate authority or the Commissioner of Land Administration. " 15.A reading of the above said provision makes it clear that the revision, against an order passed by the appellate authority, has to be preferred only before the State Government. In the present case, the petitioner, aggrieved over the order of the 3rd respondent, dated 22.02.2010, made an appeal before the District Collector, Sivagangai District, who in turn rejected the appeal on 19.05.2010. Thereafter, he has preferred the revision before the State Government on 06.06.2010. In such circumstances, since the revision was against the order passed by the appellate authority, as per Section 10-A(1)(c) of the Act, the State Government alone is the competent authority and the petitioner has rightly preferred his revision before the 1st respondent. Further, this Court also in its order dated 06.09.2011 has specifically directed the 1st respondent herein to consider the revision and dispose of the same within a period of three months, after affording an opportunity of personal hearing to the petitioner. Therefore, the 1st respondent is not correct in rejecting the revision on the ground that the petitioner ought to have preferred the revision only before the Commissioner of Land Administration, who is the competent authority, that too, when there is a specific direction by this Court to consider the same and pass orders. 16.It is also pertinent to point out that the revision preferred by the petitioner before the 1st respondent was not returned on the ground that the revision was not preferred before the competent authority. On the other hand, even the Under Secretary to the Government https://hcservices.ecourts.gov.in/hcservices/ 6 in the Revenue Department, sent a communication dated 16.11.2010 directing the petitioner herein to make further representation by enclosing further documents in connection with the revision petition, dated 06.06.2010. Therefore, the petitioner has rightly proceeded on the basis that he has preferred the revision only before the competent authority and responded to the communication sent by the under Secretary on 16.11.2010 and sent the reply enclosing additional grounds and other documents. 17.It is the further grievance of the petitioner that the impugned order has been passed without affording him any opportunity of hearing as directed by this Court in the order dated 06.09.2010 made in W.P.(MD)No.11246/2010. It is his further case that even in the reply sent by him on 29.11.2010 to the communication received from the Statement, he has also sought for personal hearing. In spite of the same, as already pointed out, the impugned order has been passed even without affording an opportunity of personal hearing to the petitioner and as such we have no hesitation to hold that the impugned order has been passed against the specific direction given by the Division Bench of this Court on 06.09.2011 in W.P.(MD)No.11246 of 2010. Therefore, it is crystal clear that the impugned order has been passed in flagrant violation of the principles of natural justice. As such the same is liable to be set aside. 18.Accordingly, the impugned order passed by the 1st respondent, dated 12.08.2011, is set aside. However, the matter is remitted back to the first respondent for fresh disposal by affording an opportunity of personal hearing to the petitioner as per the direction of this Court dated 06.09.2010 made in W.P.(MD)No.11246/2010. The said exercise shall be completed by the 1st respondent within a period of eight weeks from the date of receipt of a copy of this order. We are making it clear that we are not expressing any opinion on the merits of the case and it is for the first respondent to consider the same and pass appropriate orders as observed above. Till such time, status-quo shall be maintained. 19.The writ petition, accordingly, stands disposed of. No costs. Consequently, connected Miscellaneous Petitions are closed. Sd/- Assistant Registrar (T & P) /True copy/ Sub Assistant Registrar(C.S) To: 1.The Principal Commissioner and Secretary to Government, Revenue Department, Fort St.George, Chennai-600 009. 2.The Collector, Sivagangai District, Sivagangai. 3.The Tahsildar, Thiruppathur Taluk, Sivagangai District. +1. CC to the Special Government Pleader, SR.No. 35006 +1. CC to M/s A.Thirumurthy, Advocate, SR.No. 34967 gb ORDER IN WP(MD)No.11380/2011 & MP(MD)Nos.2 & 3 of 2010 Dated:10.10.2011 TR :31.10.2011: 6p/6c https://hcservices.ecourts.gov.in/hcservices/