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2018 Supreme(Mad) 904

IN THE HIGH COURT OF JUDICATURE AT MADRAS
M. VENUGOPAL, S. VAIDYANATHAN, JJ.
V. Murugesan & Others - Petitioner
Versus
State of Tamil Nadu, Represented by its Secretary, Housing and Urban Development Department, Fort St.George, Chennai & Others - Respondent
W.P. No. 5862 of 2018 & W.M.P. No. 7205 of 2018
Decided On : 15-03-2018

Advocates Appeared:
For the Petitioners:K.M. Vijayan, Senior Counsel, N.V.N. Margandeyan, Advocate.
For the Respondents: R. Udaya Kumar, Addl.G.P.

Headnote:

Tamil Nadu Land Encroachment Act – Sections 6, 7, 10, 11 – Issuance of a Writ of Mandamus – Petitioners have come forward with the above Writ Petition praying for issuance of a Writ of Mandamus to forbear the respondents from in any manner disturbing, removing or demolishing the petitioners properties situated in Survey Nos.17, 89, 255, 552/2 and 632 Ayanambakkam, Maduravoyal Taluk, Thiruvallur District, in pursuance of the eviction notice, issued by the third respondent, consequentially direct the first and second respondents to either issue Revenue Patta to the petitioners properties or, allot alternative accommodation to the petitioners properties equivalent to the area in possession with the petitioners, within the territorial limits of Maduravoyal Taluk, Thiruvallur District. – Held, If there is any delay in filing the Appeal or Revision, this will not preclude the authorities from proceeding further in the matter beyond the time prescribed under the Act, even though an Appeal can be entertained, till the delay is condoned, there is no Appeal/Revision in the eye of law and the authorities can bring the issue to a logical conclusion by removing the encroachment by using Police force, and disconnecting the electricity supply and water connection. – Further, it has to be mentioned that if the complainant is not made a party, the Authorities shall throw the Appeal/Revision and the applicants who are encroachers, shall not be shown any indulgence, as there is a habit of those encroachers getting an order behind the back of the complainant and stay in the encroached place forever. – Even though the principles of natural justice are not applicable to the encroachers, to enable their children/family members of the violator not to suffer for the mistake committed by the violator, the above observations are made to not to disturb them during the time meant for Appeal/Revision only if the Appeal/Revision is filed within time, without reference to Section 11 of the Tamil Nadu Land Encroachment Act. – Writ Petition Disposed of

JUDGMENT :

S. Vaidyanathan, J.

The petitioners have come forward with the above Writ Petition praying for issuance of a Writ of Mandamus to forbear the respondents from in any manner disturbing, removing or demolishing the petitioners' properties situated in Survey Nos.17, 89, 255, 552/2 and 632 Ayanambakkam, Maduravoyal Taluk, Thiruvallur District, in pursuance of the eviction notice, dated 13.02.2018 issued by the third respondent, consequentially direct the first and second respondents to either issue Revenue Patta to the petitioners' properties or, allot alternative accommodation to the petitioners' properties equivalent to the area in possession with the petitioners, within the territorial limits of Maduravoyal Taluk, Thiruvallur District.

2. The petitioners are apprehending that without considering the reply of the petitioners for the notice issued under Section 7 of the Tamil Nadu Land Encroachment Act, action would be taken and that the petitioners would be dispossessed and hence, they have come forward with the present Writ Petition contending that they have been residing in the place for more than a decade and some are residing for more than two decades. In support of his submissions, learned Senior Counsel appearing for the petitioners relied on a decision of this Court reported in 2015 SCC Online Madras 521 (W.PNo.3455 of 2012, dated 07.01.2015) (Thiruvallur Nagar Residents' Society Vs. Corporation of Chennai).

3. It is to be noted that this Court, in W.P.No.3546 of 2018, by order dated 19.02.2018, with regard to the provisions of the Tamil Nadu Land Encroachment Act, has observed as follows:

"7. Before parting with the case, this Court points out that where the impugned order assails the notice issued under Section 7 of the Tamil Nadu Land Encroachment Act (Act-III) of 1905, the petitioner has a right to furnish the reply to the said notice and after hearing the parties and the complainant, if any, necessary orders will have to be passed by the competent authority under Section 6 of the said Act. Against this order passed under Section 6, an appeal is provided under the said Act. Also that, if the appeal under Section 10 of the Act, 1905, is not filed by the aggrieved person, then, the filing of the Writ Petition without exhausting effective, efficacious, viable and alternative remedy, is a premature and otiose one, in the considered opinion of this Court. Further, if the reply is given, the petitioner must file necessary proof. If the said reply is not referred to in the order passed under Section 6 of the Act, or if there is no reference to the fact that no reply was filed by the petitioner, or if any proof for sending the reply or acknowledgement is not filed, the Office of the Registry of this Court may ask for necessary details from the petitioner prior to the numbering of the Writ Petition. Further, the authorities must ensure that the final order passed by them refers to the reply, if any filed by the person who received the notice under Section 7 of the Act, and if the same is not adverted to in the order passed by the authority, then as against the erring/deviant authority, necessary departmental action may be taken against him for his lapse/dereliction in regard to the discharge of his duties. The Registry is directed to comply with these directions in future, when the Writ Petitions are filed challenging the notices/orders passed under the provisions of the Tamil Nadu Land Encroachment Act."

4. Further, one of us (S.Vaidyanathan, J), in W.P.No.21239 of 2005, etc. batch, by order dated 18.12.2017, observed as follows with regard to the procedures to be followed by the authorities who conduct summary proceedings:

"6. This Court makes it further clear that the regularisation proceedings shall be conducted by the respondents after hearing necessary parties who are likely to be affected and if there are complainants, they should also be heard. Whenever parties appear, the applicants as well as the complainants shal










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