Madras High Court
Muthammal vs The District Collector on 20 July, 2023
W.P.(MD)No.17582 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 20.07.2023
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
and
THE HONOURABLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
W.P(MD)No.17582 of 2023
and
W.M.P(MD)Nos.14676 and 14677 of 2023
Muthammal ... Petitioner
Vs.
1.The District Collector,
Madurai District,
Madurai.
2.The Tahsildar,
Thirumangalam Taluk,
Madurai District. ... Respondents
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.
For Petitioner :Mr.T.Veerakumar
For Respondents :Mr.M.Lingadurai,
Special Government Pleader
1/6
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.17582 of 2023
ORDER
(Order of the Court was made by S.S.SUNDAR, J.)
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.
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.17582 of 2023
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.
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.17582 of 2023
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.
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.17582 of 2023
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.
[S.S.S.R., J.] [D.B.C., J.]
20.07.2023
Index : Yes / No
NCC : Yes/No
pm
To:
1.The District Collector,
Madurai District,
Madurai.
2.The Tahsildar,
Thirumangalam Taluk,
Madurai District.
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.17582 of 2023
S.S.SUNDAR, J.
and
D.BHARATHA CHAKRAVARTHY, J.
pm
W.P(MD)No.17582 of 2023
20.07.2023
https://www.mhc.tn.gov.in/judis
