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2018 Supreme(Mad) 2635
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
M. DURAISWAMY, ANITA SUMANTH, JJ.
M. Seeni Mohammed, Correspondent, Pallivasal Higher Secondary School, Mudukulathur, Ramanathapuram - Petitioner
Vs.
The Executive Officer, Mudukulathur Town Panchayat, Mudukulathur, Ramanathapuram - Respondent
W.P(MD) No. 14309 of 2018 and W.M.P (MD) No. 12964 of 2018
Decided On : 04-07-2018
For the Petitioner: Mr. M.Ajmal Khan, for M/s. Ajmal Associates
For the Respondent: Mr. N.Dilipkumar
Headnote:
Tamil Nadu Land Encroachment Act, 1905 - Sections 7, 6 and 10 - Occupation Of Land - School is in consistent use and enjoyment of property since then - While so respondent issued a communication styled as an notice and addressed to various alleged encroachers including petitioner herein - Communication alleged that petitioner had encroached at survey and called upon it to remove encroachment within seven days failing which respondent would take appropriate action to remove same with assistance of deputy superintendent of police and tahsildar - Petitioner replied to notice main contention advanced was that school had been in occupation of land in various survey numbers for decades acres of land in survey had been placed at disposal of school as early and as such there was no encroachment as alleged by respondent - Petitioner thus urged that land in question had been placed at its disposal legitimately and construction of compound wall thereupon was in interests students who study in school - Held, We make it clear that all observations made in course of this order are prima facie and shall not stand in way of parties in appeal proceedings except in respect of those issues specifically identified and answered by us as either rejected or accepted - Coming to question of interim protection requests that respondent may be permitted to remove offending encroachment forthwith in light of prima facie case made out by him - We are however not inclined to accept his request seeing as appeal itself has been directed to be disposed of within a time frame - Also and more importantly construction alleged to be offending includes a compound wall - We are of view that presence of compound wall cannot be dispensed with when property it encloses includes a school where we are told more than a thousand children study proximate in location to water body - Writ Petition is disposed of.
ANITA SUMANTH, J.
The petitioner is the Correspondent and Secretary of Pallivasal Higher Secondary School, Mudukulathur, (in short 'school') an aided minority educational Institution. The school is said to have been established in the year 1932 and is situated in the land comprised in survey nos.346/2A, 346/2B2, 346/5, 346/6, 346/7 and 346/8 in Mudukulathur Taluk, Ramanathapuram District.
2. Vide communication dated 23.09.1978, an extent of land admeasuring 0.14 acres in survey no.346/10 of Melamudukulathur Village in Ramanathapuram District was placed by the Commissioner of Land Revenue, Land Reforms and Food Production, Madras, at the disposal of the School for its use as a playground. The school was also permitted to construct a compound wall, subject to various conditions that were imposed.
3. The District Revenue Officer, Ramanathapuram, thereafter passed an order dated 04.05.1979 in confirmation of proceedings dated 23.09.1978 placing an extent of 0.14 acres of land comprised in survey no.346/10 at the disposal of the school.
4. The school is in consistent use and enjoyment of the above property since then.
5. While so, the respondent issued a communication dated 10.05.2018 styled as an (Notice) and addressed to various alleged encroachers including the petitioner herein. The communication alleged that the petitioner had encroached upon the Saravanapoigai Oorani, (in short 'water body') at survey no. 346/4 and called upon it to remove the encroachment within seven days failing which, the respondent would take appropriate action to remove the same with the assistance of the Deputy Superintendent of Police and Tahsildar.
6. The petitioner replied to the above notice on 05.06.2018. The main contention advanced was that the school had been in occupation of land in various survey numbers for decades, 0.14 acres of land in survey no. 364/10 had been placed at the disposal of the school as early as in 1978 and as such, there was no encroachment as alleged by the respondent. The petitioner thus urged that the land in question had been placed at its disposal legitimately and the construction of the compound wall thereupon was in the interests of 1000 (approx.) students, who study in the school.
7. Notwithstanding the aforesaid reply, an order was passed by the respondent on 28.06.2018 confirming the proposal set out in notice dated 10.05.2018. The petitioner was called upon to remove the encroachments, within a period of seven days from the date of receipt of the order.
8. Communication dated 10.05.2018 as well as order dated 28.06.2018 have been assailed in the present writ petition before us.
9. Prima facie, we notice that the land placed at the disposal of the school is comprised in survey no.346/10, whereas the survey number stated to have been encroached in the impugned communication/order is survey no.346/4.
10. When a specific query was put to Mr. Ajmal Khan in this regard, he sought to clarify the same stating that what was originally survey no.346/10 has been re-numbered as survey no.346/4 and the two numbers denote one and the same piece of land. We will advert to this presently.
11. Heard Mr. M.Ajmal Khan, learned senior counsel for Ajmal Associates for the petitioner and Mr.N.Dilip Kumar, learned counsel for the Executive Officer, Mudukulathur Town Panchayat, Ramanathapuram District, the sole respondent.
12. Various contentions have been raised in the writ petition. Firstly, it is contended that no show-cause notice was issued in terms of section 7 of the Tamil Nadu Land Encroachment Act, 1905 which contemplates that an order of eviction in terms of section 6 thereof, is to be proceeded by a show-cause notice under section 7 of the Act. In the present case, the very first communication dated 10.05.2018 calls upon the alleged encroacher to remove the encroachment within seven days and though styled as a notice, is apparently only an order.
13. Secondly, it is pointed out that an order of eviction in terms of section 6 of the
