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2017 Supreme(Mad) 632
IN THE HIGH COURT OF JUDICATURE AT MADRAS
INDIRA BANERJEE AND M. SUNDAR, JJ.
S. Vivekanandan - Petitioner
Vs.
The Tahsildar, Tiruvannamalai and Ors. - Respondents
W.P. No.8518 of 2017 and W.M.P.No.9298 of 2017
Decided On : 10-04-2017
For the Petitioner: Mr. S. Sadasharam
For the Respondents: Mr. R. Vijayakumar
Adherence to the provisions of the Tamil Nadu Land Encroachment Act, 1905 is crucial in cases involving alleged encroachment on public land.
Headnote:
Land Encroachment - Land Encroachment Act, 1905 - Section 7, Section 6 - The court discussed the provisions of the Tamil Nadu Land Encroachment Act, 1905 and highlighted the adherence to the Act in issuing the impugned order.
Fact of the Case:
The writ petitioner filed a petition challenging an order alleging encroachment on public land for constructing a Samadhi (Tomb). The jurisdictional Tahsildar passed the impugned order holding that there was an encroachment and no provision for issuing patta for building a Samadhi on public land.
Finding of the Court:
The court found that the provisions of the Tamil Nadu Land Encroachment Act, 1905 were followed in issuing the impugned order, and the grievance of the writ petitioner that the provisions of the Act were not followed was incorrect.
Issues: The issues involved the alleged encroachment on public land for constructing a Samadhi and the authority to grant consent for such construction.
Ratio Decidendi: The court's decision was based on the adherence to the provisions of the Tamil Nadu Land Encroachment Act, 1905 in issuing the impugned order and the availability of statutory appeal under the Act.
Final Decision: The writ petition was disposed of, and the option for the writ petitioner to file a statutory appeal under Section 10 of the Tamil Nadu Land Encroachment Act, 1905 was highlighted.
M. Sundar, J.
The writ petitioner has filed this writ petition, calling in question an order dated 25.03.2017 bearing No.A5/831/2013 made by the first respondent (hereinafter referred to as 'impugned order' for the sake of brevity and clarity). The subject matter of the writ petition is land comprised in S.No.62/3 in Manmalai Village, Chengam Taluk, Tiruvannamalai District and the extent is 540 sq. feet.
2. It is not in dispute before us that the writ petitioner has put up a Samadhi (Tomb) therein. It is also noticed from the records placed before us that the third respondent before us filed a writ petition in this Court, being W.P.No.35123 of 2012, alleging that public land has been encroached. This writ petition was disposed of by a Division Bench of this Court by order dated 14.11.2016 with a direction to proceed in accordance with law. The relevant part of the order is paragraph 2 and the same may be usefully extracted infra:
''2. On hearing the learned counsel for parties, we are of the view that the allegation of the petitioner may be enquired into by the second respondent on visit to the site and if any unauthorized construction is found on Government land, action in accordance with law be taken, after notice to all concerned, within a maximum period of three (3) months from the date of receipt of this order.''
3. Thereafter, the writ petitioner has moved this Court by way of another writ petition being W.P.No.4175 of 2017. This writ petition was disposed of by an order dated 22.02.2017 by a Division Bench of this Court. In this order, this Court had directed the respondent authorities to proceed in accordance with the Tamil Nadu Land Encroachment Act, 1905 (hereinafter referred to as 'the said Act'). The operative and relevant portion of the order is paragraph 5 and the same reads as follows:
''5. On hearing the learned counsel for parties, we direct the first respondent to issue notice under Section 7 of the Tamil Nadu Land Encroachment Act, 1905 and after holding an enquiry, appropriate order would be passed under Section 6 of the said Act within a period of two months from the date of receipt of a copy of this order.''
4. In the above backdrop, first respondent, being the jurisdictional Tahsidar, has passed the impugned order dated 25.03.2017 holding that there is an encroachment in the above said land. The jurisdictional Tahsildar has also held that there is no provision for issue of patta for building a Samadhi (Tomb) and that the provision for issue of patta in such public land may be available only for landless farmers.
5. It is not in dispute that a show cause notice ('SCN' for brevity) under Section 7 of the said Act dated 10.03.2017 was issued, prior to the impugned order.
6. As would be evident from the typed set of papers filed by the writ petitioner, in response to the above said SCN, the writ petitioner has sent his response/objections and the same is dated 18.03.2017. In this response to the SCN, the writ petitioner has inter-alia contended that Samadhi (Tomb) has been constructed with the consent of the Village Administrative Officer and the Village Headman (Maniakarar). It has also been contended by the writ petitioner that if Patta is granted to him, he will be able to maintain the Samadhi (Tomb) well. However, the first respondent before us, namely, the jurisdictional Tahsildar has examined this response of the writ petitioner. After such examination, in the impugned order, the first respondent jurisdictional Tahsildar has held that the Village Administrative Officer and the Village Headman do not have any authority whatsoever to grant such consent and in any event, no document supporting/evidencing such consent has been placed before the Court. There is no dispute that the Samadhi (Tomb) has been constructed in Government land. Considering these aspects, the first respondent jurisdictional Tahsildar has passed the impugned order.
7. A perusal of the impugned order leaves no doubt in our mind that the
