Issuance of notice u/s 7 is a must.

NAINAR SUNDARAM, J.:- These three writ appeals can be disposed of by a common judgment and they do arise out of a common order in three different writ petitions. The appellants herein were the petitioners/in the three writ petitions. The appellants challenged the notice given to them under S.6 of the Tamil Nadu Land Encroachment Act, III of 1905, hereinafter referred to as the Act for their eviction from the lands occupied by them. The main contention put forth by the appellants was that they had not been served with a prior notice as laid down by S.7 of the Act, and this vitiates the entire proceedings. The learned single Judge who dealt with the writ petitions, ordered notice of action, and on service of such notice of motion, the learned Government Advocate representing the respondent stated-that notices were issued under S.7 of the Act to the appellants. The learned single Judge perused the records produced before him by the learned Government Advocate representing the respondent and found that the statements which formed part of the records only showed that notice under S.5 of the Act alone had come to be issued. Yet the learned single Judge opined that whether notices under S.7 of the Act have been issued or not, an enquiry before taking proceedings under S.6 of the Act would serve the cause of the appellants and directed such an enquiry, permitting the petitioners to participate in that enquiry and thereafter the respondent was directed to pass the appropriate orders. The learned single Judge gave further direction that till orders are passed by the respondent, no proceedings shall be taken by him to disturb the possession of the appellants. The writ petitions were allowed in the above terms. These writ appeals, as already stated, are directed against the common order of the learned single Judge.

2. Mr. R.S. Venkatachari, learned counsel for the appellants, would submit that the learned single Judge directing an enquiry would not be of any solAcc at all to the appellants, and when the statutory prescriptions contemplate the issuance of a prior notice under S.7 of the Act, that cannot be skipped over and short-circuited, and when that lacuna has been found, the learned single Judge ought to have quashed the impugned notice under S.6 of the Act. On an assessment of the provisions of the Act, we are obliged to countenance the grievance of the learned counsel for the appellants. Nor the purpose of assessing the position, we feel obliged to refer to the relevant provisions of the Act. Section 5 of the Act spends about liability of person unauthorisedly occupying land to penalty after notice, and its language runs as follows:-

"5. Liability of person unauthorisedly occupying land to penalty after notice- Any person in any area other than the transferred territory liable to pay assessment under S.3 shall also be liable at the discretion of the Collector, or subject to his control, the Tahsildar or Deputy Tahsildar to pay in addition by way of penalty:

(i) If the land be assessed land, a sum not amending five rupees or, when ten times the assessment payable for one year under S. 3 exceeds five rupees, a sum not exceeding ten times such assessment, provided that no penalty shall ordinarily be imposed in respect of the unauthorised occupation of such land for any period not exceeding one year;

(ii) If the land be unassessed, a sum not exceeding ten rupees, or when twenty times the assessment payable for one year under S. 3 exceeds ten rupees, a sum not exceeding twenty times such assessment."

Section 6 is elaborate when it speaks about liability of person unauthorisedly occupying land to summary eviction, forfeiture of crops etc., and there is a need to extract the said provision as follows :-

"6. Liability of person unauthorisedly occupying land to summary eviction, forfeiture of crops etc., - (1) Any person unauthorisedly occupying any land for which he is liable to pay assessment under Section 3 or Section 3-A may be summar