Removal of encroachment is not permissible without recourse to due process of law.

1. The petitioner claims that his father purchased the lands bearing Survey No. 409/1 and 409/2 in Thuvarankurichi village, Pattukottai Taluk, Thanjavur District. During his life time, in the year 1993 on the basis of oral partition, the petitioner was allotted the said lands. According to him, from 1993, he has been paying the kist and enjoying the said properties. Since the respondents 2 to 4 have decided to treat these lands as if they belong to the Government, and were taking steps to take possession of the lands by force, the petitioner filed a suit in O.S.No. 41 of 1999 before the Sub-Court, Pattukottai in March 1999. Though the petitioner filed an application in I.A. No. 104 of 1999 seeking for an order of injunction restraining the respondents therein from interfering with his peaceful possession. Notice was ordered and the said petition is pending consideration by the Civil Court. Thereafter, according to the petitioner, on 16. 1999, the 4th respondent along with the Village Administrative Officer, the Revenue Inspector and also with the police came to the said lands and tried to evict the petitioner by using bull dozers. The petitioner and other owners prevented them and so a complaint was lodged against them. On that basis that petitioner has filed the writ petition in W.P.No. 10895 of 1999 to issue a writ of mandamus, for bearing the respondents from evicting the petitioner from the said lands without following due process of law.

2. This Court ordered notice of motion. Pending that writ petition, the respondents claim that they have taken possession of the same. So, the petitioner has filed the writ petition in W.P.No. 14554 of 1999, seeking to issue a writ of mandamus, directing the respondents to re-deliver possession of the said lands.

3. Thelearned counsel appearing for the petitioner has submitted that the petitioner has purchased the said lands in 1986, and even before that the vendors had been in possession of the said lands for a long number of years. The petitioner claims that he has been in possession and enjoyment of the same at least from 1986 thereby claiming that he is in possession of the said lands, and so he cannot be evicted high-handedly, without following the procedure in accordance with law. According to the petitioner, he is in possession of the said lands. But, in any event if this court come to the conclusion that possession of the said lands have been taken as stated by the respondents, order has to be passed for re-delivery of possession.

4. The learned Government Advocate, on the basis of the file, and on instruction has submitted that the authorities have issued ‘B’ memo, and only after taking proceedings under the Land Encroachment Act, possession has been taken, and so the petitioner’s case cannot be accepted. According to him, ‘B’ memo was issued in 1998. Notice under Section 5 of the Land Encroachment Act was issued on 20.11.1998. Notice under Section 7 of the Act, dated 12. 1998 was served by affixture on 12. 1998. Since there was no objection Section 6 proceedings were issued on 20.5.1999 and affixed on 29. 1999, as the petitioner refused to receive the same. It is not in dispute that the petitioner is in possession of the said lands. It is also not in dispute that the petitioner filed a suit in O.S.No. 35 of 1999 on the file of Sub-Court, Pattukottai seeking declaration that the petitioner is the owner of the said lands and he is entitled to be in possession and for consequential injunction. In the injunction petition filed by the petitioner, in view of the statement made in the counter affidavit, no order was passed. It is also not in dispute that the respondents tried to evict the petitioner. According to the petitioner, the said action of the respondents is without following the procedure, and not in accordance with law. According to the respondents, only after issuing proper notices under the Land Encroachment Act, they have taken steps to evict the petitioner, a