IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.07.2010 CORAM: THE HONOURABLE MS. JUSTICE K.B.K.VASUKI W.P.No.12660 of 2010 and M.P.No.1 of 2010 Arulmigu Ponnambala Swamigal Matt Rep. by its Managing Trustee R.Gnanasambandam No.33, Sadayappa Street, Saidapet, Chennai – 15. ... Petitioner Vs. 1.The Thashildar, Chengalpet Taluk, Kanchipuram District. 2.The Revenue Inspector, Thiruporur Birkka, Chengalpet Taluk, Kanchipuram District. ... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India praying to issue Writ of Certiorari, calling for the records of the respondents in relation to the impugned order dated 29.03.2010 issued by the 1st respondent in relation to the property situated in Survey No.217C/2A to an extent of 2 Acre at No.122, Sembakkam Village, Chengalpet Taluk, Kanchipuram District and to quash the same. For Petitioner : Mr.G.Gokulavani For Respondents : Mr.V.Viswanathan, Additional Govt. Pleader O R D E R On consent, the writ petition is taken up for final hearing. 2.The order impugned herein is passed under Section 6 of the Tamil Nadu Land Encroachment Act, 1905 (herein after referred to as 'Act') by the first respondent in and under which the petitioner is directed to vacate the property in question within 15 days from the date of receipt of the impugned order. 3.It is not in dispute that the official respondents have by treating the property as public property initiated eviction https://hcservices.ecourts.gov.in/hcservices/ proceedings under the relevant provision of the Act and the proceedings are commenced by issuing notice under Section 7 and the same is followed by eviction order under Section 6. Section 7 notice dated 10.03.2010 and Section 6 order of eviction dated 29.03.2010 are enclosed at pages 24 and 25, 27 and 28 respectively in the typeset of papers filed by the petitioners. The mode of service of notice under Section 7 and the eviction order under Section 6 are admittedly not by way of effective personal service to any one of the adult members in the family or by affixture in the premises situated in the land in question. The validity of Section 7 notice is seriously objected to by the learned counsel for the petitioner on two grounds firstly, the petitioner Matt is in possession of the enjoyment of the same without any hindrance from 1970 by putting up construction by planting trees, by paying all statutory dues to the concerned authorities and by approaching the authorities concerned for getting patta transferred in the name of the Matt etc. Secondly, the mode of service of notice under Section 7 and the eviction order under Section 6 are not in accordance with law as the same does not specify the date within which the objections are to be filed and the time within which the possession is to be handed over and both the proceedings are hence in violation of the mandatory requirements of the Act. 4.The learned counsel for the petitioner has also relied upon the Judgment reported in AIR 2002 Madras 2002 in S.Kamaraj and others Vs.Government of Tamil Nadu Rep. by its Secretary and others in support of her contention that the Section 7 Notice followed by Section 6 order did not satisfy one such legal requirement and the same vitiates the orders impugned. 5.Per contra, the learned Additional Government Pleader, appearing on behalf of the respondents would seriously argue that all the legal formalities are duly complied with as required under the relevant provisions of the Act and the impugned order is duly preceded by notice, service of the same is duly effected by one of the modes recognized under law and on the failure of the petitioner to put forth his objections to the authority concerned as required under Section 7 notice, the same is followed by the impugned order herein under Section 6 of the Act thereby demanding vacant possession of the land in question belonging to the Government. 6.Heard the rival submissions made on both sides. 7.The factual position that the petitioner is possession and enjoyment of the property in question and the eviction proceedings are initiated by the official respondents under the relevant provisions of the Act by issuing Section 7 notice and the same is followed by the impugned order herein under Section 6 are all admitted. However, the reading of Section 7 notice and the impugned order would reveal that while section 7 notice does not satisfy any date within which the petitioner is to file his objection before the https://hcservices.ecourts.gov.in/hcservices/ authority concerned the particular column in Section 6 is left blank. Thus there is legal force in the objection raised herein advanced relating to violation of mandatory procedure. 8.The legal objection so raised is also fortified by the authority above cited i.e., AIR 2002 Madras on the side of the petitioner wherein this Court has placed reliance on earlier judgments reported in 1. 1994 M.L.J. 229 in Habiibullash Vs. State of Tamil Nadu 2. AIR 2000 Madras 241 in N.Periasamy Vs. Sub-Collector, Tiruppur 3. 1990 Writ Law Reporter 151 in Hasmavalli Vs. Tah Tahsildar, Vridhachalam (Division Bench) and another Division Bench Judgment in Ramaswamy Vs. Tahsildar, Saidapet, Madras and has held that the respondents have not followed the mandatory procedure in the matter of mode of service of Section 7 notice as contemplated under the provisions of the Act. The observation made in the judgment referred to in the authority above cited are reproduced herein: "17.In the case of Habibullash Vs. State of Tamil Nadu reported in 1994 M.L.J. 229 A.R.Lakshmanan,J., (as he then was) has held, "The prior notice to be issued under Sec.7 should specify a date before which the person in aunauthorised occupation should be asked to show cause as to why he should not be proceeded against. It is obligatory on the part of the authority issuing notice under Sec.7 to specify 'a certain date'. In contra distinction, Sec.6 (2) uses the expression "service of a notice on the person reputed to be in occupation requiring him within such time" as the Collector may deem reasonable to vacate the land. Thus, it is clear that prior notice under Sec.7 should contain 'a certain date' while a notice under Sec.6 (2) to specify "such time" as the Collector or his subordinate may deem reasonable. Thus, the legislature has deliberately used two different expressions in Secs.7 and 6 of the Act. If a prior notice issued under Sec.7 does not contain 'a certain date'. It would be in violation of the mandatory requirement of the Section." The perusal of file does not disclose that notice under Section 7 said to have been issued does contain 'a certain date', accordingly, the same is in violation of mandatory requirement of the Section." https://hcservices.ecourts.gov.in/hcservices/ 18.In the case of Sathish vs. Tahsildar, Sirakali, a Division Bench of this Court has held, "If there is resistance or objection, a summary enquiry has to be conducted under Sub- clause (2) of Section 6 of the Act." 19.In the case of N.Periasamy Vs. Sub-Collector, Tiruppur reported in A.I.R. 2000 Madras 241, V.Kanagaraj, J., has held, "12.As we have seen in the judgments supra, mere service of S.7 notice is not sufficient to specify the needs of law nor even in the case where it is served, as it is claimed on the part of the learned Additional Government Pleader here, the further question that is to be gone into is whether the manner in which it has been served, as held by different upper forums of law in the aforesaid judgments, is relevant. Furthermore, the enquiry is also contemplated to be held by the evicting Officer and then now the eviction notice has to be served in the presence of the petitioner or in his absence by affixture or in the presence of neighbours with their signatures and those procedures have to be meticulously adhere to." 20.In the case of Hasmavalli Vs. Tah Tahsildar, Vridhachalam reported in 1990 Writ Law Reporter 151, the Division Bench has held that, "The language of Section 7 of the Act is unambiguous when it says that before taking proceedings under S.6, the Authority concerned shall cause to serve on the person reported to be in unauthorised occupation of land being the property of Government a notice specifying the land so occupied and calling on him to show cause before a certain date why he should not be proceeded against under Sections 6 and 7 also contemplates as to how such notice shall be served. It is not possible to belittle the requirements of this provision and reduce them to an empty formality. When a power is vested with an authority under the stature, that power must be exercised strictly in accordance with the procedure prescribed therefor, and any departure therefrom cannot be easily tolerated." https://hcservices.ecourts.gov.in/hcservices/ 9.The facts of the instant case are identical. This Court has in the earlier judgment gone to the extent of directing the official respondents to handover back the premises/land to the respective petitioner with liberty given to the petitioner to approach the appropriate forum for compensation and with further liberty given to the officials to initiate fresh proceedings by following the procedure as contemplated in the provisions of the Act in particular sections 7 and 6 of Act or under any other law. Applying the same legal proposition Section 7 notice issued in the present case followed by the impugned order under Section 6 is also seriously vitiated and the order of eviction impugned herein following such Section 7 notice is equally vitiated and cannot be legally sustained and is hence liable to be set aside. However, that will not preclude the official respondents to initiate fresh eviction proceedings against the petitioner by following the procedure of law. 10.In the result, the writ petition is allowed by setting aside the impugned order with liberty given to the respondents/officials to initiate fresh eviction proceedings by following the procedure as contemplated under the relevant provisions of the Act, in particular, Sections 6 and 7 of Act. No costs. Consequently, connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vsm To 1.The Thashildar, Chengalpet Taluk, Kanchipuram District. 2.The Revenue Inspector, Thiruporur Birkka, Chengalpet Taluk, Kanchipuram District. 1 cc To Mr.G.Gokulavani, Advocate, SR.52680 W.P.No.12660 of 2010 jp(co) pmk.09.08.2010 https://hcservices.ecourts.gov.in/hcservices/