Balamurugan. S v. The District Collector

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 28.06.2023

CORAM:

THE HON'BLE MR.R.SUBRAMANIAN and THE HON'BLE Mrs.JUSTICE L.VICTORIA GOWRI W.P.(MD) No.15602 of 2023 and WMP(MD) No.13108 of 2023 S.Balamurugan ... Petitioner -vs1.The District Collector Office of the District Collector Thoothukudi District 2.The Tahsildar Ettayapuram Taluk Thoothukudi District 3.The Revenue Inspector, Muthalapuram Ettayapuram Taluk Thoothukudi District 4.Pappammal ... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorari to call for the records relating to the impugned order passed by

the 2nd respondent signed on 19.06.2023 herein and to quash the same. For Petitioner :

Ms.P.Jessi Jeeva Priya For Respondents :

Mr.S.P.Maharajan Special Government Pleader

ORDER

[Order of the Court was made by R.SUBRAMANIAN, J.] Challenge in the writ petition is to the order passed under Section 6 of the Land Encroachment Act, 1905 dated 19.06.2023. The claim of the petitioner is that this order was not preceded by a notice under Section 7 requiring the petitioner to show cause as to why encroachment should not be removed.

2. The Land Encroachment Act has been in vogue for 130 years. We had in our order dated 20.02.2023 expressed our anguish with the manner in which the said Act is abused and misused by the revenue authorities in colluding and connivance with the encroachers. The same status continues even today. In view of the specific plea taken by the petitioner that the order under Section 6 dated 19.06.2023 was not preceded with a notice under Section 7 as required under that

law, namely, the Land Encroachment Act, 1905, he had required the concerned Tahsildar to produce the original files. The Tahsildar, Ettayapuram, is present and she has also produced the original files relating to the eviction proceedings. As expected, we find that Section 7 notice has not been properly served on the petitioner.

3. There is a Section 7 notice available in the files, which bears an endorsement, "fpuhk eph;thf mYtyhpd; %yk; rhh;G nra;J mDg;gg;gl;Ls;sJ" dated 09.06.2023, but there is nothing to show that this notice was served on the encroachers. The Tahsildar, who is present, would submit that notice was sent to the Village Administrative Officer for service, but he did not serve it personally. It is claimed that the notice had been sent through ordinary post. Any notice that is required to be served under law has to be served either in person or by registered post with acknowledgment due. In the absence of such acknowledgment, we cannot presume that the notice has been served. In the absence of any record to show that the notice has been served, we have to necessarily conclude that the order under Section 6 has been passed without proper notice under Section 7 of the said Act. Therefore, the order impugned in

the writ petition is quashed. It will be open to the respondents to take appropriate action as per law.

4. The writ petition is allowed and the order impugned is quashed. However, there is no order as to costs. consequently connected Miscellaneous Petition is closed.

[R.S.M, J.] [L.V.G, J.] 28.06.2023 NCC : Yes / No Index : Yes / No RR To 1.The District Collector Office of the District Collector Thoothukudi District 2.The Tahsildar Ettayapuram Taluk Thoothukudi District 3.The Revenue Inspector, Muthalapuram Ettayapuram Taluk Thoothukudi District

R.SUBRAMANIAN, J.

and L.VICTORIA GOWRI, J.

RR W.P.(MD)No.15602 of 2023 28.06.2023