The requirement for a survey in the presence of interested persons before determining encroachment, as established by the Supreme Court and previous decisions.

JUDGMENT

(Prayer:Writ Petition filed under Article 226 of Constitution of India, to issue a Writ of Certiorari calling for the records relating to the impugned notice of the second respondent dated 27.06.2023 and quash the same as illegal.)

S.S. SUNDAR, J.

1. Heard Mr.T.Veerakumar, learned counsel for the petitioner and Mr.M.Lingadurai, learned Special Government Pleader for the respondents.

2. The petitioner has challenged the order passed by the second respondent under Section 6 of the Tamil Nadu Land Encroachment Act, 1905 (in short ‘the Act’).

3. It is the case of the petitioner that she is the absolute owner of the land measuring to an extent of 74 sq. mts., situated in Survey No. 260/98(Part). The petitioner also states that her house property is in Natham land. It is her further case that the impugned eviction order is passed in arbitrary manner without considering the petitioner''s right as per revenue records.

4. The learned counsel for the petitioner submitted that no survey was conducted before passing the impugned order despite the petitioner has made objections.

5. The learned Special Government Pleader is unable to get instructions regarding the character of the land or whether the Tahsildar has conducted a survey before proceeding for removal of encroachment.

6. The Honourable Supreme Court in the case of Madhav Rao Schindia vs. Ramesh Jatav [(2006) 1 SCC 379], has held that survey to identify encroachment shall be done in the presence of persons, who are interested or the persons, who are found to be encroachers.

7. Following the Judgment of Honourable Supreme Court in the case of Madhav Rao Schindia above referred to, this Court has repeatedly held that before removal of encroachment, the actual encroachment should be identified by conducting a survey by the Tahsildar concerned after issuing notice to the alleged encroachers or in the presence of the alleged encroachers.

8. In view of the law settled by the Honourable Supreme Court and this Court earlier, when a summary proceedings are initiated against the encroacher, it is for the Tahsildar concerned to conduct a survey in the presence of the interested persons, before they proceed to determine whether the property is in the encroachment of the person concerned. It is only thereafter, they can proceed further by issuing a show cause notice under Section 7 of the Act and pass final orders under Section 6 of the Act, after holding an enquiry on the objections / explanations offered to the notice issued under Section 7 of the Act.

9. In the case on hand, no survey was conducted before passing the impugned order. In such view of the matter, this Court is inclined to set aside the impugned notice issued by the second respondent.

10. Accordingly, this writ petition is allowed and the impugned notice dated 27.06.2023 issued by the second respondent is set aside. The second respondent is directed to conduct a survey after issuing notice to the petitioner and in the presence of the petitioner. The report drawn pursuant to the survey should also be furnished to the petitioner. In case, the petitioner is found to be in encroachment of any public land, it is open to the second respondent to initiate appropriate action under the Tamil Nadu Land Encroachment Act, 1905, by following due procedure. No Costs. Consequently, connected miscellaneous petitions are closed.