Notice issued under wrong provision is illegal.

(Prayer: Petition under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus as stated therein.)

By consent, the writ petition itself is taken up for final disposal.

2. Heard both sides.

3. The petitioner has filed this writ petition seeking for the issuance of a Writ of Certiorarified Mandamus to call for the entire records of the 3rd respondent in his letter dated 29.7.2004, quash the same and consequently direct the respondents to grant patta to the petitioner for the lands in S. Nos.674/B, 720, 721/2, 735, 736, 737 and 738 to the total extent of 3.23 acres situated at Vengatavaram Village, Sevelimedu Mathura, Kancheepuram District.

4. In the affidavit filed in support of the writ petition, it is stated that the petitioner is an agriculturist by profession and that he is in possession of 3.23 acres in S. Nos.674/B, 720, 721/2, 735, 736, 737 and 738. In the year 1978, the petitioner sought for assignment of the lands under his cultivation from the second respondent. In regard thereto, the petitioner was asked to contact the office of the 3rd respondent and though several representations were made by him, he was not favoured with any order of assignment. According to the petitioner, right from the year 1968, he has been paying B.Memo charges as demanded by the authorities. In the year 1986, the petitioner was served with a letter from the office of the 3rd respondent informing him about the enquiry to be conducted by the Revenue Divisional Officer, Kancheepuram at 10a.m. on 20.12.1986 and the petitioner was directed to be present at the time of enquiry. According to the petitioner, the respondents conducted enquiries regarding the feasibility of assigning the lands in question to the petitioner.

5. The petitioner has further stated that the respondents were hesitant to grant assignment in his favour as some portions of the lands in question were abutting the Sevelimedu lake. Though the report called for from the Executive Engineer, Public Works Department, Kancheepuram Division in the year 1984 also stated that there was no impediment for assignment of the lands, so far, the petitioner had not been granted any order of assignment. According to the petitioner, he is entitled to assignment since, right from the year 1968, he is in occupation of the lands. The petitioner, once again, pursued his claim for assignment in the year 1993 and after conducting an enquiry, the 3rd respondent submitted a report that the claim of the petitioner can be considered favourably. It is further stated that the Government assigned an extent of 3 acres in S.No.729/2 and lands measuring 39 cents in S.No. 721/3. While so, the petitioner was served with the notice dated 29.7.2004 stating that the petitioner should remove all the encroachments within a period of 15 days. Hence, the present writ petition.

6. The main contention raised by the learned senior counsel appearing for the petitioner is that the third respondent has issued the impugned notice under Section 6 of Land Encroachments Act, 1905, (hereinafter be referred to as 'the Act' for short), without issuing a notice under Section 7 of the Act, which is a condition precedent for issuing notice under section 6 of the Act, thereby committed violation of the procedure contemplated under the Act.

7. Concededly, the issue is directly covered by the decision of this Court reported in 1997 (III) CTC 106 (Gooda Srinivasalu Naidu -Vs- The Collector Of Chengleput, wherein it is held in paras 9, 10 and 11 as follows:-

“9. It is well settled law that when a power is vested with an authority under the statute, that power must be exercised strictly in accordance with the procedure prescribed. Therefore, any departure therefrom cannot be easily tolerated. In the instant case, the very statute prescribes the manner in which power should be exercised by the authorities and there is no provision in the statute to dispense with such a procedure at all. The statutory prescr