A.Palanisamy v. The Collector, Namakkal District, Namakkal

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 16.12.2009CORAM:THE HON'BLE MR.JUSTICE K.CHANDRUW.P.NO.28212 of 2007andM.P.NO.1 of 2007A.Palanisamy ..PetitionerVs.1. The Collector, Namakkal District, Namakkal.2. The Tahsildar, Tiruchengode Taluk, Namakkal District.3. The Revenue Inspector, Pallipalayam, Tiruchengode Taluk, Namakkal District. ..Respondents Petition filed under Article 226 of the Constitution ofIndia praying to issue a writ of Certiorarified Mandamus calling forthe records of the third respondent herein dated 16.8.2007,a noticeunder Section 5 of the Tamil Nadu Act III of 1905, quash the same anddirect the respondents to forbear from dispossessing the petitionerfrom the land measuring 40 cents situated in S.No.232/5 inAlampalayam Village, Tiruchengode Taluk,Namakkal District.For Petitioner : Mr.T.R.RajaramanFor Respondents : Mr.R.Neelakandan Government AdvocateO R D E RThe petitioner is occupying the lands measuring 40 centssituated in 232/5 in Alampalayam Village, Tiruchengode Taluk,Namakkal District.2. The petitioner was apprehending that the respondents maydispossess him without due process of law. Therefore, he filed a writ https://hcservices.ecourts.gov.in/hcservices/ petition being W.P.No.21076 of 2006. This Court, by a final orderdated 5.7.2006, gave the following directions:"4. Having regard to the abovestatement, the statutory respondents are herebydirected to follow the due procedure, if theyintend to dispossess the petitioner from theabove said poromboke land. The writ petition isdisposed off in the above terms. No costs. Theconnected miscellaneous petition is closed."3. In the meanwhile, the petitioner sent a representationto the Government stating that he was occupying the land adjacent tohis patta land for the past 40 years and from 1990 onwards, he hasplanted coconut saplings and also put up a compound wall. He has alsobeen paying " B" memo charges. The petitioner had also applied forpatta in respect of the encroached land in the year 2003 itself andeven though, the Deputy Tahsildar,Tiruchengode had inspected theproperty, so far he had not been given patta. The petitioner hasalready spent Rs. 2 lakhs towards the construction of compound walland the land being an innocuous dry waste, he has unobjected for thegrant of patta. The petitioner has also waited before the DeputyCollector to submit his grievance.4. In the meantime, two other persons in the same villagefiled a Public Interest Litigation before this Court in W.P.No.22736of 2007 asking for removal of encroachment in the same SurveyNo.232/5. In that case, the petitioner was not made as a respondent.However, a Division Bench of this Court by an order dated 07.08.2007gave a direction to dispossess the encroachers in the land on thefollowing lines, as found in Paragraph 4 of the order: "4.On the facts of the case, when it isadmitted that the said property which is thesubject matter in the writ petition had beenencroached by a third party, it is the duty of therespondents to take action to remove theencroacher. In view of the same, the respondentsare directed to take action to remove theencroachment in Survey No.232/5, Alampalayam,Tiruchengode Taluk, Namakkal District by followingthe due process of law, within a period of threemonths from the date of receipt of copy of theorder." (Emphasis added)5. Pursuant to the directions issued by the Division Bench,the respondents have issued impugned eviction notice under Section 5of the Tamil Nadu Land Encroachment Act, 1905. The petitioner did notgive any reply. On the contrary he has come forward to file once https://hcservices.ecourts.gov.in/hcservices/ again a writ petition seeking to set aside the encroachment noticeand also to restrain the respondents from disposessing the petitionerfrom the land in his occupation. 6. In the affidavit filed in support of the writ petition,the petitioner has stated that he is having a Thope and having 40coconut trees standing and he is paying tree tax to the Governnmentand therefore he cannot be removed on a mere whims and fancies ofcertain individuals. Secondly it is stated that already in anotherwrit petition filed by him in W.P.No.27415 of 2007, this Court byorder dated 17.8.2007 directed that his representation to be disposedof within eight weeks as found in Paragraph 4 of the said order: "Having regard to the facts and circumstancesof the case, the relief sought for by thepetitioner cannot be granted in entirety. However,learned counsel for the petitioner has limited theprayer in the writ petition to the extent ofdirecting the respondents to dispose of thepetitioner's representation dated 14.8.2006 and16.7.2007. In view of the same, the firstrespondent is directed to dispose of therepresentations of the petitioner dated 14.8.2006and 16.7.2007 on merits and in accordance with law,within a period of eight weeks from the date ofreceipt of a copy of this order after givingsufficient opportunity to the parties of theproceedings." 7. Therefore, learned counsel for the petitioner submitsthat since his representations have not been disposed off, he isentitled to continue in the said property and the issuance of theimpugned notice is not valid. 8. Mr.R.Neelakandan, learned Government Advocate produced aproceedings issued by the first respondent-District Collector dated17.10.2007 stating that since already the Divison Bench had directedto take appropriate steps to remove the encroachment, theencroachment notice was given. But, so far as the petitioners'request for the allotment of grant of patta, the procedings aresilent. It merely says that since the present writ petition ispending, the District Collector is unable to take action. It isreally a sorry state of affairs where different orders are passed atdifferent times and therefore the parties are in confusion inimplementing those orders which are in essence contradictory innature. In the first writ petition filed by the petitioner, there wasa direction to dispossess the petitioner only after due processes oflaw. In the second writ petition, the petitioner sought for adirection to consider his representation and for the grant of pattafor the various reasons set out by him and they were not disposed of. https://hcservices.ecourts.gov.in/hcservices/ In the meantime, at the instance of some third parties, a directionwas obtained without making the petitioner a party and theauthorities were directed to take appropriate action in accordancewith law. 9. Admittedly, the petitioner is in an encorached land. Buthe has records of his possession for over 40 years. He has alsoimproved the land where 40 standing coconut trees are there. He hasalso built up a compound wall, which is not denied.The petitioner hasalso got a direction that his request for patta has to be consideredin accordance with law, as the land is only dry waste and it isunobjectionable for grant of patta. His request for grant of patta ispending for the last six years.The direction of the Division Benchhas to be understood not as a positive direction to remove theencroachment, but only to consider the third parties' representation,in accordance with law. Therefore, the District Adminsitration cannotinterpret the orders of the Court, the way in which they want tointerpret. It is also made clear that there is no positive directionby the Division Bench of this Court for removing the petitioner fromthe alleged encroached land. On the contrary, the Division Bench hasonly directed the respondents to take action on the representationsmade by two individuals viz., T.Velayutham and R.Ravi to remove theencrochment within a period of three months in accordance with law.The Division Bench stated that in case of encroachment by a thirdparty, it was the duty of the respondents to take action to removethe encoacher. Therefore, appropriate steps to be taken to removethe encroachment in the Survey number 232/5, Alampalayam,Tiruchengode Taluk, Namakkal District by following due process of law. 10. This cannot be construed as a direction for removal,because due process mentioned therein will also include whether atall there was an encoachment which was objectionable and whether thepetitioner was entitled for patta as claimed by him in view of hislong possession of the said property. Therefore, the DistrictCollector must consider whether the petitioner's request for patta isfeasible. The question of removal of encroachment will arise onlyafter rendering a finding that the encoachment was objectionable andthat the petitioner is liable to be removed in accordance with theAct. In the proceedings dated 17.10.2009, the DistrictCollector,Tiruchengode has merely stated that because of the pendencyof the present writ petition, he could not take decision on the issueof grant of patta. 11. Therefore, the writ petition is disposed of with adirection to the first respondent to first determine the request madeby the petitioner for the grant of patta on the grounds stated byhim. If that is rejected, it is only after such rejection and if theencroachment was objectionable than in Public Interest, he shall takeappropriate action under the Tamil Nadu Land Encroachemnt Act, 1905. https://hcservices.ecourts.gov.in/hcservices/ Till such time, the first respondent takes a decision on the issueof grant of patta, the impugned notice shall stand suspended. 12. The writ petition is disposed of accordingly. No costs.Consequently, M.P.No.1 of 2007 is closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarVjyTo1. The Collector, Namakkal District, Namakkal.2. The Tahsildar, Tiruchengode Taluk, Namakkal District.3. The Revenue Inspector, Pallipalayam, Tiruchengode Taluk, Namakkal District.+ 1 c.c. to The Government Pleader. S.R.No.69263. W.P.NO.28212 OF 2007 AND M.P.NO.1 OF 2007JRG (CO)GSK 04.01.2010.