IN THE COURT OF JUDICATURE AT MADRAS DATED 24.03.2011 CORAM THE HONOURABLE MR. JUSTICE R. SUDHAKAR W.P.No.4409 OF 2008 ...... N. Pandurangan .. Petitioner -vs- 1. The Deputy Collector (Revenue-South)- cum-Estate Officer, Villiyanoor, Pondicherry. 2. The Tahsildar, Taluk Office, Bahour, Pondicherry. .. Respondents Prayer: This petition is filed under Article 226 of the Constitution of India to issue a Writ of Certiorari calling for the records relating to the order of the 1st respondent in his proceedings NO 8553/DCRS/B2/2008 dated nil and served on the petitioner on 13/2/2008 issued under form BB under sec 5B(1) of the Public Premises (Eviction of unauthorised Occupants) Act 1971 and quash the same. For Petitioner : : Mr. K. Ravichandrababu For Respondents: : Mr. E. Vijay Anand Govt. Advocate (P) ORDER This writ petition is filed to call for the records relating to the order of the 1st respondent in his proceedings NO 8553/DCRS/B2/2008 dated nil and served on the petitioner on 13/2/2008 issued under form BB under sec 5B(1) of the Public Premises (Eviction of unauthorised Occupants) Act 1971 and quash the same. 2. The petitioner claims to be a purchaser of agricultural wet land from one Thangabalu under a sale deed dated 2.1.1995 https://hcservices.ecourts.gov.in/hcservices/ registered as document No.1 of 1995 in R.S.No. 252/2 Cadasgtre No. 1217, Patta No. 621 together with adjoining natham land measuring an extent of 25 scents in R.S.No. 252/7 Embalam Village. On 16.6.1999, the first respondent issued an eviction notice under Public Premises (eviction of unauthorised occupants) Act 1971 and the same was challenged by the petitioner in W.P.No. 11282 of 1999 and by an order dated 1.7.1999, the Court directed the first respondent to give reasonable opportunity to the petitioner for submitting his explanation to the notice. The explanation given by the petitioner on 16.7.1999 was rejected and an order of eviction under Section 5B (1) of the Act was issued on 7.1.2000. The petitioner challenges the order dated 7.1.2000 before the Principal District Court, Pondicherry in M.A.No. 1 of 2000 and the District Court by its judgment dated 12.12.2001, set aside the impugned notice. The Appellate Authority viz., Principal District Court, while deciding the claim of the petitioner gave a finding both in regard to the right of the petitioner over the property as well as the irregularity in the notice issued and the relevant portion in paragraphs 9,10 and 12 of the judgment dated 12.12.2001, reads as follows:- " (9) Upon hearing both sides, this Court finds that the respondents themselves have obtained a certified copy of the sale Deed, dated 2.12.1994, registered as Doc.No.1/95 and has produced a copy of the same before this Court. A perusal of this document reveals that the appellant herein has purchased the lands comprised in R.S.Nos. 252/2 and 252/8, but whereas, the impugned land is comprised in R.S.No. 252/7. The respondents themselves have produced a copy of the Adangal extract issued by the Deputy Tahsildar, Sub Taluk Office, Bahour, which clearly indicates that the land in R.S.No. 252/7 extending to 1.16.0 Hectares in Embalam Village is classified only as 'Natha' land and an extent of 0-43-50 Hectares is in possession and employment of the appellant herein which consists of borewell, 10 coconut trees, cassurina and a godown. The said Adangal Extract does not mention that the impugned land is a Government Poromboke natham, so as to conclude that as per the revenue records, the impugned land is a poromboke natham encroached by the appellant, thereby attracting the provisions of the Pondicherry Encorachments Act. (10) Another important aspect to be noticed at this juncture is that the respondents have not followed the directives of the Hon'ble High Court in W.P.No. 11282 of 1999 wherein, the Hon'ble High Court has directed the respondents to follow the procedure laid down under section 4 of Public Premises (Eviction of Unauthorised Occupants) Act. Section 4 of the Act requires issue of notices to show cause against an order of eviction. The conjoint reading https://hcservices.ecourts.gov.in/hcservices/ of Sections 4 and 5 of the Act would go to show that after notice under Section 4 of the Act giving the party concerned a reasonable opportunity of being hearing, the authority, if he is satisfied that the premises is unauthorisedly occupied, may pass an order of eviction for the reasons to be recorded therein. (11) .... (12)...... It is clear indication that no reasonable opportunity has been given to the appellant to represent his case or that the respondent has satisfied himself that the premises is a public premises which has been occupied by the respondent unauthorisedly. Thus, the eviction order passed by the respondent is not supported by reasons as contemplated under section 5 of the Act, so as to enable the appellant to agitate over his rights before this Court by pointing out that those reasonings are wrong. A reading of the impugned notice in Form 'AA' and form 'BB' would show that a mere direction has been given by the authority asking the appellant to remove the superstructure raised by him, which is clearly not in accordance with law as well as the directions of the Hon'ble High Court in this regard have been flouted. Hence, the impugned order in Form 'BB' notice is liable to be set aside. " 3. As against this order, it is fairly admitted by the respondents that no further appeal or proceedings has been initiated and it has become final. Thereafter on 12.6.2002, a fresh show cause notice under Section 4(2) of the Act has been issued and the petitioner submitted a reply dated 26.2.2002. The petitioner sought for time to produce other documents and after considering the same on 6.2.2008, the impugned order of eviction under Section 5 of the Act has been passed, and that is challenged. 4. The contention raised by the learned counsel for the petitioner is that the proceedings of the first respondent is barred by the Principle of Resjudicata in view of the judgment rendered in M.A.No. 1 of 2000 dated 12.12.2001 on the very same issue. 5. The reasoning given in the judgment in M.A.No. 1 of 2000, dated 12.12.2001 to negative the respondents plea has been referred to in the impugned proceedings but the authority has failed to consider the scope of the finding rendered in paragraph 9 of the said Judgment, which is on the merits of the case. It stands concluded in favour of the petitioner and therefore, the subsequent proceedings is invalid and without any legal basis. https://hcservices.ecourts.gov.in/hcservices/ 6. The impugned proceedings refers to a notice in F.No.8553/DCRS/B2/2007-08, dated 21.8.2007 and that notice is referred to in paragraph 3 of the form BB. That is not the notice issued under Section 4 of the Act and therefore, the order suffers from the error apparent on the face of the record. He further pleaded that since no action has been taken on the notice issued under Section 4 of the Act dated 12.6.2002, it is deemed to be abandoned and therefore, the fresh proceedings initiated on 28.7.2007 not in consonance with the provisions of the Act is bad and consequent impugned order is also erroneous and liable to be set aside . 7. Heard Sri. Vijay Anand, learned Government Advocate, (Pondicherry) appearing for the respondents, who reiterated the stand taken in the impugned proceedings and stated that an opportunity has been given pursuant to the notice dated 28.7.2007 and that should be treated as the notice given under Section 4 of the Act. Therefore without exhausting the alternative remedy available to the petitioner, has come forward with the present writ petition and prayed for dismissal. 8. The two contentions raised by the respondents is not tenable. Insofar as the classification of the land is concerned, in judgment dated 12.12.2001 in M.A.No. 1 of 2000, it has clearly been held that the land in question is a natham land and it is not a Government Poromboke land and that has not been challenged in the manner known to law. It will be pertinent to record that the judgement was passed based on the Government records and it is not disputed by the respondents. 9. In such view of the matter, the question of invoking the power under Section 5 of the Public Premises (eviction of Unauthorised Occupants) Act 1971 will not arise as has been rightly held by the Principal District Judge. This view is fortified by the decision of the Division Bench of this Court in The Executive Officer, Kadathur Town Panchayat – Vs. - V. Swaminathan & Others reported in (2004, 3, C.T.C. 270), wherein in paras 12 & 13 , it has been held as follows:- " 12) Further, 'Grama Natham' is defined in the Law Lexicon as " ground se apart on which the house of village may be built". Similarly, Natham land is described in Tamil Lexicon published under the authority of University of Madras to the effect that it is a residential portion of a village; or portion of a village inhabited by the non- Brahmins; or land reserved as house sites; etc. (13) In the light of the above and in view of the fact that the admitted classification of the land being a " Grama Natham', it is obvious that the land was never vested with https://hcservices.ecourts.gov.in/hcservices/ the Government or the Town Panchayat. Inasmuch as the petitioners and their ancestors were in exclusive possession of the lands in question for the past 40 years, the impugned order of the third respondent in cancelling the pattas with a view to evict them summarily at the instance of the resolution passed by the Panchayat is not sustainable. Further such a summary eviction is not permissible in law when the disputed question of title is involved for adjudications as laid down by the Apex Court in number of decisions." 10. Therefore, the entire proceedings initiated by the first respondent is without jurisdiction, arbitrary and non est in law. In such view of the matter, this Court is not inclined to go into the other questions raised by the petitioner and countered by the respondents stating that proper notice has been issued in terms of Public Premises (eviction of unauthorised occupants) Act 1971 as I have already held that the Provisions of law under which fresh action has been taken by the respondents will not bind the petitioner. The impugned proceedings is set aside and the writ petition is allowed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ra To 1. The Deputy Collector (Revenue-South)- cum-Estate Officer, Villiyanoor, Pondicherry. 2. The Tahsildar, Taluk Office, Bahour, Pondicherry. 1 cc To Mr.K.Ravichandran, Advocate, SR.21165 1 cc To The Senior Government Pleader for Pondicherry, SR.21220 WP No. 4409 of 2008 TAM(CO) sra 12/4/2011 https://hcservices.ecourts.gov.in/hcservices/