(Writ Petitions are filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus forbearing the Respondents or their men, officers, subordinates or agents from any manner proceeding against the Petitioners lands and shops which they are in possession and enjoyment in T.S.No.4/2, New Block No.9 (Old No.39), 4 roads, Mettur town.)

Common Order:

Petitioners seek Writ of Mandamus forbearing the Respondents from in any manner proceeding against the lands and shops, which are in possession and enjoyment of the Petitioners comprised in T.S.No.4/2, Block No.9 (Old No.39) Mettur Town, Salem District.

2. Petitioners in W.P.Nos. 25849 & 25851/2006 have filed M.P.No.1/2008 to direct the Respondents to restore back the lands from which Petitioners were said to be forcibly evicted on 18.08.2006.

3. Background facts which led to the filing of Writ Petitions are as follows:-

(i) Lands situated in T.S.Nos.4/2 and 4/4, New Ward B, Block No.9, comprises of an extent of 18.61 acres have been classified as "Revenue Department" in town survey and land records. As per the revenue records, the said lands have been allegedly encroached by 99 persons. For the welfare of people of Mettur, the Chief Minister of Tamil Nadu had announced in the Tamil Nadu Legislative Assembly that a Government Arts College would be formed in Mettur in the academic year 2006-2007. T.S.Nos.4/2 and 4/4 was identified as suitable place for construction of Government Arts College, but there were encroachments by the Petitioners. At that stage, Petitioners have filed Writ Petitions.

(ii) Briefly stated case of the Petitioners is that they are in possession and enjoyment of the lands in T.S.No.4/2. (Petitioner in W.P.No.25849/2006 an extent of 4.84 acres; Petitioner in W.P.No.25851/2006 an extent of 3.80 acres; Petitioner in W.P.No.27452/2006 an extent of 11 cents; Petitioner in W.P.No.27453/2006 an extent of 7 cents and Petitioner in W.P.No.27454/2006 an extent of 7 cents.

(iii) Case of the Petitioners in W.P.Nos.25849 & 25851/2006 is that originally the lands belonging to their families were acquired by the Government for construction of Cauvery-Mettur Project, which is now known as Stanley Reservoir. After the construction of the Dam, surplus lands were leased out by the Government to the original owners, which was published by the Revenue Authorities at Mettur in the year 1931. Accordingly, the Petitioners ancestors have become the lessees and are in possession and enjoyment of the property.

(iv) According to the Petitioners, lands are classified as Natham Poramboke in the revenue records and in respect of these lands, B-Memo has been issued by the Government. Apprehending that the Respondents are likely to evict them without following the due process of law, Petitioners have issued a telegram to the 1st Respondent on 08.07.2006, stating all the above said facts and however, since the Respondents without following the procedure laid down either by the Tamil Nadu Land Encroachment Act or the Tamil Nadu Public Premises (Eviction of unauthorized Occupants) Act, are likely to evict the Petitioners, they have filed these Writ Petitions. Grievance of the Petitioners is that no notice was served upon the Petitioners before evicting them.

(v) Case of the Petitioners in W.P.Nos.27452 to 27454/2006 is that the land in question is classified as Natham land or otherwise called as Grama Natham in the land revenue records and they are in occupation of their respective lands for more than 15 or 20 years. According to these Petitioners, since they have been in possession and enjoyment of the property for a long time and Revenue Authorities cannot direct them to vacate the premises without issuing any notice and without conducting any enquiry.

(vi) Case of the Petitioners is that as set out in G.O.Ms.No.1380 Govt. of Tamil Nadu PWD dated 06.08.1980, entire land which was not used by PWD has been classified as Natham Poramboke and if it is Natham Poramboke it would vest in the Municipality and not with the Government. According to the Petitioners, assuming that the lands are required for establishing Arts College, Respondents should follow the procedure laid down under TN Land Encroachment Act and to evict the Petitioners in the manner known to law. Grievance of the Petitioners is that no notice was served upon them and on 18.08.2006, Respondents came with a battalion of police and demolished and destroyed the structures and bulldozed them and the action of the Respondents is arbitrary and illegal.

4. Opposing the Petitions, Respondents have filed counter contending that T.S.Nos.4/2 and 4/4 are classified as Revenue Department and not as Natham Poramboke. Case of the Respondents is that T.S.Nos.4/2 & 4/4 have been identified as suitable for construction of Government Arts College and after issuing notice u/s.7 and passing an order u/s.6 of TN Land Encroachment Act, encroachers were evicted by the Highways and revenue department with the aid of Police on 18.08.2006. Petitioners being encroachers were duly served with the notice and eviction process went on smoothly and in accordance with law and encroachers co-operated in the eviction process and taken their articles. Petitioners having been evicted as per law, they are not entitled to any equitable relief.

5. Contending that no notice was served upon the Petitioners, on behalf of Petitioners in W.P.Nos.25849 & 25851/2006 Mr. R.Gandhi, learned Senior counsel inter alia made the following submissions:-

"Petitioners have all along been in possession of 8.64 acres in T.S.Nos.4/2 and they have put up construction and are also doing agriculture and they have been paying the amount due and payable to the Government.

"Lands in S.No.4/2 have been classified as Natham lands and Gramanatham never vested with the State.

"No notice was served upon the Petitioners u/s.6 of TN Encroachment Act and the alleged notices u/s.7 and orders passed u/s.6 of the were created for the sake of records.

"Had any notice been served upon the Petitioners, Petitioners would have challenged the same.

"Petitioners having been in possession for long time, in violation of procedures, Petitioners cannot be thrown out overnight.

In support of his contentions, the learned Senior counsel has also placed number of decisions which I would refer at appropriate place.

6. Elaborating upon the procedures to be followed under TN Land Encroachment Act, Mr. S. Doraisamy, learned counsel for the Petitioners in W.P.Nos.27452 to 27454/2006 submitted that no notice either u/s.7 or an order u/s.6 was issued to the Petitioners. It was further submitted that the land in dispute is only Natham Poramboke and Writ Petitioners are entitled for Patta and the land is meant only for community use. Learned counsel for the Petitioners would further submit that Petitioner in W.P.No.27452/2006 is an practising Advocate at Mettur and there is no reason why notice was not served to the Petitioners and the notice was allegedly served by affixture.

7. Taking me through the file and other records, Mr. P.S. Raman, learned Addl. Advocate General would submit that necessary notice u/s.7 of TN Land Encroachment Act was served upon the Petitioners and since they refused to receive the same, notices were pasted on the boundary survey stones. Learned Addl. Advocate General would further submit that after giving reasonable time, Petitioners were evicted by the Highways and Revenue department after due process of law. Learned Addl. Advocate General further submitted that the lands situated in T.S.Nos.4/2 and 4/4 have been classified as revenue land and not as Natham poramboke as alleged by the Petitioners. Learned Addl. Advocate General further argued that all the Petitioners own large extent of lands and cannot claim to be landless poor agriculturists claiming to have right to be in occupation of the revenue lands.

8. In the light of the above submissions, the following points arise for consideration:-

=Whether the lands in question have been leased out as claimed by the Petitioners in W.P.Nos.25849 & 25851/2006

=Whether the lands in question are classified as Natham poramboke as alleged by the Writ Petitioners

=Whether the provisions of TN Land Encroachment Act have not been followed as alleged by the Petitioners Whether eviction is vitiated by violation of principles of natural justice

9. Re.contention - Lease Agreement:-

Case of the Petitioners is that early in 1920s, Government had acquired the property in Samballi village for the construction of Mettur Dam Cauvery-Mettur Project and the excess surplus land unused were given back to the original owners and came under the jurisdiction of Navapatti village and surplus unused lands were given back to the original owners on lease basis. Petitioners referred the letter dated 08.12.1927 received from P.I.Saiyid Miranji Sahib, the RDO addressed to Sellia Gounder (grand father of the Petitioner in W.P.No.25851/06) wherein it is stated that request of Sellia Gounder for lease will be considered. Thereafter, the Tahsildar in its Proceedings ROC/801/31/B.2 dated 02.03.1931 intimated to the Petitioners grand father that the land acquired from him by the Government will be leased to him and he was asked by the authorities concerned to appear before them on 30.07.1931.

10. Correctness of the above proceedings and communications are stoutly denied by the Government. Insofar as the letter dated 08.12.1927 from RDO, Mettur is alleged to be a created document. According to the Respondents, in the said letter dated 08.12.1927, there is no ROC number or letter number. Stand of the Respondents is that before 20.10.1965, RDO functioned only at Dharmapuri and at that time there was no RDO office at Mettur. Respondents stoutly denied the correctness of the letter dated 08.12.1927 and allotment of any land to the Petitioners grand father Sellia Grounder.

11. Insofar as, proceedings of Tahsildar, Mettur dated 02.03.1931 in ROC/801/31/B.2 is also stated to be a created document. Stand of the Respondents is that in 1931, Mettur was not uplifted as Taluk grade and Mettur taluk was formed only w.e.f. 16.12.1965. Before it, Mettur taluk was partly under control with Bhavani and partly with Omalur Taluks and therefore, the said document dated 02.03.1931 purported to have been issued by the Tahsildar, Mettur is alleged to be a created one.

12. Petitioners also placed reliance upon the notice dated 05.02.1938 issued by the Tahsildar, Mettur Dam (Omalur taluk) informing the public about giving of 5 acres of lands for lease for cultivation and that the public can approach the revenue department with necessary application for obtaining lease.

13. In the copy of letter in L.Dis.B.2693/41 dated 02.07.1941, Government accepted the recommendation of the Board of Revenue that the unused land could be leased out to the original owners for a term of 5 years. Proceedings of the Government in Boards reference in L.Dis.B.2693/41 dated 02.07.1941 reads as under:-

"The Government accept the recommendation of the Board of Revenue that the lands referred to in Chief Engineers letter read above which were acquired under the Land Acquisition Act for the Cauvery Mettur Project and which are not required either for the purpose of Cauvery Mettur Project or for immediate industrial development at Mettur, should be leased out to the original owners for a term of five years termination on six months notice on either side and subject to the condition of relinquishment whenever the lands are required by Government. The lease will also be subject to the conditions on which the lands in question were hitherto being leased every year and the annual lease amounts should be deducted from those already obtained in recent years.

14. As seen from the above, the lease will be subject to the conditions on which the lands in question were hitherto being leased every year. Had there been any lease agreement between the revenue department and the said Sellia Gounder, Petitioners could have very well produced the lease agreement. Petitioners have not chosen to produce any receipt showing payment of lease rent. Absolutely there is no document showing any lease agreement or to show that the ancestors of the Petitioners were lessees.

15. Learned counsel for the Petitioners have also placed reliance upon G.O.Ms.No.21 Revenue Dept. dated 19.09.1941 and copy of letter from Collector of Salem in D.No.9806-41 dated 06.12.1941. G.O.Ms.NO.21 Revenue Dept. dated 19.09.1941 reads as follows:-

"The Government consider that the lands in the Mettur Township area should be granted under Boards Standing Order No.24-A for five years at the existing rates of Rs.6/- per acre for lands with wells and at Rs.4/- per acre for lands without wells. Some of the initial grants may be made for shorter periods in the first instances. So that one fifth of the total number will terminate each year and can thereafter be renewed for five years."

16. Letter of Collector of Salem in D.No.9806-41 dated 06.12.1941 reads as follows:-

"From the records it is seen that Rs.4/- per acre was fixed taking the average cost of acquisition of land in the Mettur area at Rs.100/- per acre. In 1937 the rates of Rs.4/- per acre for lands with wells and of Rs.4/- per acre for lands with wells appear to have been fixed by the Township Committee. These rates have now been accepted by the Government in G.O.No.24-A the acquisition rate of Rs.100/- (Rupees One hundred) per acre for all lands will be adopted as recommended by the Tahsildar, Omlur.

17. The above said Government Orders and letter from the Collector, Salem refer to lease proposal in respect of the lands in Mettur Township. There is nothing to correlate the said Government Orders and letter to the Writ Petitioners. Based on the said letter and Government Orders, if at all the Writ Petitioners had become the lessees, Petitioners could have very well produce the lease agreement or the receipts showing payment of lease rent. In the absence of any such documents, the Government Orders and the letter cannot be linked to the Writ Petitioners.

18. In fact, in the public notice dated 05.02.1938, issued by the Mettur/Omalur Tahsildar informing about the lease of 5 acres, it was made clear that if the lease agreement was not executed, the yield from such lands and the farm shed erected thereon would be confiscated and the person in possession would also be removed from that land. Clause-4 of the public notice reads as under:-

TAMIL

19. Petitioners have not produced any documents relating to Samballi village nor did they produce any document showing acquisition from their ancestors in lieu of which they are the present owner of the land (T.S.No.4/2) in Navapatti village. In the absence of any documents as contended by the Respondents, Writ Petitioners are to be held as encroachers.

20. Re.contention that the land in T.S.No.4/2

is Natham poramboke:- }

G.O.Ms.No.1380 Govt. of TN PWD dt. 06.08.1980

As per the above said Government Order, where the lands are not required by PWD excluding the area required for River margins, Canal margins etc. shall be vested with the Revenue Department and treated as Natham Poramboke. It is stated that after the completion of Mettur-Cauvery Project, surplus land which are not required by PWD were ordered to be handed over to the Revenue department, Mettur Township and other departments. The relevant portion of the said G.O. reads as under:-

G.O.Ms.No.1380 Govt. of TN PWD dated 06.08.1980:

"(1) The approval of layout by the Town Planning authorities shall be continued.

(2) The Lands that are not acquired by PWD excluding the area required for River margins canal margin etc shall be vested with Revenue Department and treated as Natham poramboke and

(3) The land cost shall be credited to PWD account and the amount realised towards provision of amenities shall be credited to the Mettur Township committee or to which ever agency that has incurred the expenditure on the provision of such amenities."

21. As per the said Government Order, in Block No.39 the lands retained by PWD and lands which are not required by PWD and proposed to be handed over to the Revenue Department and to M.T.C. are as under:-

TABLE

22. Particulars of allocation of lands in Block No.39 has also been furnished by the Respondents. Those particulars contain details of lands handed over to M.T.C and Revenue department. Column No.8 contains particulars of lands, which were not required by PWD, but proposed to be handed over to Revenue department. According to the Respondents, even before G.O.Ms.No.1380 Govt. of TN PWD dated 06.08.1980, the lands in T.S.No.4/2 and 4/4, old Block No.39 were already with the Revenue department.

23. Main contention of the Writ Petitioners is that T.S.Nos.4/2 and 4/4 were treated as Natham poramboke. To refute the same, Government have produced the adangal which shows that the lands in T.S.Nos.4/2 and 4/4 have been classified as revenue lands (tUtha; Jiw). Respondents have also produced the extract of Town survey register showing classification of T.S.No.4/2 (new Block No.9) as the lands belonging to Revenue department.

24. On behalf of the Petitioners, it was mainly contended that based on G.O.Ms.No.1380 PWD dated 06.08.1980 that T.S.No.4/2 was classified as Grama natham. Mr. Doraisamy, learned counsel for the Writ Petitioners in W.P.No.27452 to 27454/2006 contended that Village natham never vested with the State and State have no right to it when the land has been classified as Village natham. In support of their contention, reliance was placed upon 1959 (II) MLJ 513 [S.Rengaraja Iyengar and another v. Achikannu Ammal and another]; 2004 (3) LW 278 [The Executive Officer, Kadathur Town Panchayat, Harur Taluk, Dharmapuri District v. V.Swaminathan and others] and 2000 Writ L.R. 211 [K.Sundaramoorthy v. The Tahsildar, Thirukovilur Taluk].

25. Observing that Village natham is a land which never vested with the State and State have no right to it in 1998 (3) LW 603 [A.K. Thillaivanam and another v. The District Collector, Chengai Anna District at Kancheepuram and others], this court held as follows:-

"19. .... The village Natham is a land which never vested with the respondents (the State) and they have no right to it. Admittedly, when the land has been classified as village Natham, it is obvious that no portion of the land vests with the respondents. The admitted classification is village Natham and merely because the petitioners have converted the same into agricultural lands, no right could accrue to the respondents even after conversion."

What emerges from the above decision is that Grama natham never vest with the State and that no action could be taken under the TN Land Encroachment Act or any other enactment.

26. To contend that T.S.No.4/2 is a Grama natham much emphasis was laid upon the Government Order cited supra, wherein it was observed "River margins, Canal margins etc. shall be vested with Revenue department and treated as "Natham Poramboke".

27. As pointed out earlier, in the Adangal and Town survey register, the lands are classified as Revenue lands. Based on the G.O.Ms.No.1380 PWD dated 06.08.1980, it cannot be contended that it is a Grama Natham and that it never vested with the Government or Mettur Township. In fact, even in the Typed set filed by the Petitioners, sub-division statement had been enclosed and T.S.No.4/2 has been classified as tUtha; Jiw. Therefore, based on G.O.Ms.No.1380 PWD dated 06.08.1980, it cannot be contended that T.S.No.4/2 is a "Grama Natham" and that it never vested with the Government or Town Panchayat.

28. In support of their contention that the lands in question is Village natham, on behalf of the Petitioners, emphasis was laid upon the Memorandum of Tahsildar, Mettur in O.Mu.9402/95(B5) dated 08.12.1985 wherein it is stated as under:-

TAMIL

29. In my considered view, the above Memorandum/Proceedings of the Tahsildar, Mettur would not take away the character T.S.No.4/2 as the Revenue land. As noted earlier, T.S.No.4/2 (old Block No.39 and new Block No.9) comprises of vast extent. Writ Petitioner S.A.Selva Kumar (1st Petitioner in W.P.No.25851/2006) sought for assignment of certain extent. Regarding Writ Petitioner S.A.Selvakumars application, steps were taken. Based on the proposals, sub-division was also effected. Any entry in the sub-division statement effecting sub-division of T.S.No.4/2 and making proposals for transfer would not confer any right upon the Petitioners. Based on the application of Writ Petitioner S.A.Selvakumar for assignment, Tahsildar, Mettur had initiated assignment proposal. Such assignment proposal by itself would not confer any right upon the Writ Petitioners.

30. Re.contention - Possessory right of the Writ Petitioners & Non-compliance of due process of law:-

Contention of the Writ Petitioners is that they have put up construction and are also cultivating the lands and are having right of possession and that they could be evicted only under due process of law. In support of their contention, Writ Petitioners placed reliance upon issuance of show cause notice as per Rule 3 of TN Public Premises (Eviction of unauthorized occupants) Act, 1975 and the subsequent judicial orders passed. Earlier on 05.11.1980 and again on 20.08.1987, Estate Officer (RDO) sent letter to Arthanari Gounder (father of the 1st Petitioner S.A. Selvakumar in W.P.No.25851/2006) calling upon him to appear for enquiry. Estate Officer has passed eviction order against Arthanari Gounder and his sister Lakshmiammal, which was challenged in CMA.No.14/1988 before District Court, Salem. By the order dated 31.8.1994, the District Judge, Salem has allowed the appeal on the ground that the procedures contemplated under the was not followed.

31. Like wise, Estate Officer issued show cause notice to Swamidurai (father of the 1st Petitioner M.S. Balasubramanian in W.P.No.25849/2006), which was challenged in CMA.No.15/1988 on the file of District Court, Salem. One Kaliappan also received show cause notice u/s.4 of TN PP (Eviction of unauthorized occupants) Act, which was challenged in CMA.No.58/1987. The said appeals were allowed by the learned District Judge, Salem by the order dated 19.12.1990. The learned District Judge, Salem has observed that the appellants have produced documents showing that they are not unauthorized occupants. It was further observed that the Revenue department having received the rent ought to have followed the procedure laid down under TN Public Premises (Eviction of unauthorized occupants) Act. Those CMAs were allowed mainly on the ground that the procedures contemplated under the was not followed. In those orders, it was only observed that the encroachment could be removed only on due process of law. Allowing of those CMAs would not preclude the Respondents from evicting the encroachers/trespassers in the Government lands observing the rules and due process of law.

32. Laying emphasis upon the observations made by the learned District Judge, Salem in the orders of CMAs, learned Senior Counsel Mr. R. Gandhi has contended that Petitioners are not the unauthorized occupants and were in possession and enjoyment of the land for a long period and that they cannot be evicted in a summary manner and that Writ Petitioners are entitled to issuance of proper notice and opportunity of being heard. Learned Senior counsel submitted that the authorities are duty bound to follow the procedure laid down under the and the action allegedly initiated by the Respondents under TN Land Encroachment Act is not valid. In support of the contention that Writ Petitioners have been in possession and enjoyment of the property for a long time and that they cannot be evicted in a summary manner, reliance was placed upon 1970 (II) MLJ 298 [Abdul Rashid Sahib v. The Asst. Engineer (Highways), Kallakurichi and another].

33. On behalf of the Writ Petitioners, it was mainly contended that as per the provisions of TN Land Encroachment Act, notice under Sec.7 of the should be served on the occupants of Government lands and in the present case, no notice either under Sec.7 or an order under Sec.6 of the was issued to the Petitioners and non-issuance of notice under Sec.7 would vitiate the order passed under Sec.6 of TN Encroachment Act and the eviction. In support of their contention, learned Counsel for the Petitioners placed reliance upon 1999 (III) CTC 636 [K. Kathalingam v. State of Tamil Nadu, rep. by its Secretary to Govt. Adi Dravidar and Tribal Welfare Dept., Fort St. George, Chennai-9 and others] wherein the learned Judge has observed that issuance of notice under Sec.7 of TN Land Encroachment Act is mandatory and if there is obstruction or person in occupation resisting removal from the land, Collector should hold summary enquiry to satisfy himself about the resistance or obstruction and that Collector has failed to hold summary enquiry, the learned Judge held possession of land illegal and Government was directed to re-deliver possession of the land subject to the result of the Civil suit.

34. Reliance was also placed upon 1999 (I) CTC 1 [V.Arunagiri and others v. The Divisional Engineer, National Highways, Thiruvannamalai and others]. Observing that the building put up by the encroachers/trespassers of Government land cannot be demolished unless the procedure contemplated under Secs.7 and 6 are followed. In Paras 11 & 12 of the said decision, the Division Bench of this Court has held as under:-

"11. The Division Bench of this Court in Hamsavalli v. The Tahsildar, Vridhachalam, AIR 1990 Mad. 350 [LQ/MadHC/1990/281] has held that issuing of prior notice under Section 7 of thebefore taking action under Section 6 of theis mandatory and that non-issuing of such notice under section 7 of thevitiates the eviction proceedings. In the said judgment, reference is made to a decision of a learned single Judge of the High Court of Andhra Pradesh in Abbayya v. State of Andhra Pradesh, AIR 1960 AP 134 [LQ/TelHC/1958/164] . In the said judgment, the learned single Judge stated thus:-

"It is clear from the reading of Sections 6 and 7 that the following conditions and steps of procedure have to be fulfilled and followed before a person could be legally evicted from the occupation of Government land: (1) first the land must be shown to the Government property in which Government have a subsisting right on the date of the proposed eviction, (2) a notice should issue under S.7 and should be served on the person concerned to show cause before a date to be fixed why he should not be proceeded against under S.6 of the; and (3) on service of such notice and if sufficient cause is not shown, serving a notice requiring him within such time as the Collector may deem reasonable to vacate the land; and (4) and if such notice is not obeyed, directing removal of the person from the land; and (5) if such person in occupation resists or obstructs, a summary enquiry by the Collector, shall be held and only after the Collector is satisfied that the resistance or obstruction is without any just cause, he could issue a warrant for his arrest and on his appearance commit him to close custody.

Any act or attempt at summary eviction without following the procedure is totally illegal and cannot be recognized as valid. Mere service of notice periodically under S.7 is ineffective and does not give rise to a cause of action."

The Division Bench of this Court agreed with the statement of the learned single Judge of the Andhra Pradesh High Court extracted above, and added that the language of Section 7 of theis unambiguous, when it says that before taking proceedings under Section 6 of the Act, the authority concerned shall cause to serve on the person reputed to be in unauthorized occupation of the land, being the property of Government, a notice specifying the land so occupied and calling on him to show cause before a certain date why he should not be proceeded against under Section 6 of the.

12. In Sri Chamundi Leather & two others v. The Collector, Kancheepuram and four others [1995 (II) CTC 355), a learned single Judge of this Court has taken the view that issuing of notice under Section 7 of theis a condition precedent for passing order under Section 6 of the. In other words, notice under Section 7 of theis mandatory for taking action under Section 6 of thefor eviction of the unauthorized occupants/encroachers from the land. To the same effect is another judgment of a learned single Judge in Gooda Srinivasalu Naidu v. The Collector of Chengalpattu at Kancheepuram and two others [1997 (III) CTC 106). In the said judgment, the learned single Judge has referred to the Division Bench judgment in Hamsavalli and etc. v. The Tahsildar, Vridhachalam, (AIR 1990 Mad. 350 [LQ/MadHC/1990/281] )."

35. Learned counsel for the Writ Petitioners also placed reliance upon 2006 (1) LW 358 [S.Veerasamy v. The State of Tamil Nadu rep. by its Commissioner of Land Administration, Chepauk, Chennai and others], wherein Justice P.D. Dinakaran (as his Lordship then was) has held as under:-

"7. Concededly, the issue is directly covered by the decision of this Court reported in 1997 (III) CTC 106 [Gooda Srinivasalu Naidu v. The Collector of Chengleput] wherein it is held in paras 9,10 and 11 as follows:-

"9. It is well settled law that when a power is vested with an authority under the statute, that power must be exercised strictly in accordance with the procedure prescribed. Therefore, any departure therefrom cannot be easily tolerated. In the instant case, the very statute prescribes the manner in which power should be exercised by the authorities and there is no provision in the statute to dispense with such a procedure at all. The statutory prescriptions must have their due significance by observance and they cannot be allowed to be breached and amelioration therefor cannot be thought about by saying that the persons affected could participate in the enquiry. Merely because such notices under section 7 of thehad been periodically served on the petitioner on the earlier occasion itself does not give a cause of action for the present impugned eviction proceedings dated 18.10.1986 of the second respondent.

10. It is needless to mention that time and again there are judicial pronouncements of this Court as well as other High Courts on the point that unambiguous language of the statute contemplating certain statutory requirements prescribed in the statute itself cannot be reduced to an empty formality. Of course, a decision of the division bench of this court reported in Hamsavalli and etc. v. The Tahsildar, Vridhachalam, South Arcot District, (AIR 1990 Mad 350 [LQ/MadHC/1990/281] ) and other decision of this Court namely reported in P. Rameswamy v. The Assistant Engineer, Highways and Rural Works Department, Nagapattinam, (1977 (1) MLJ 162 [LQ/MadHC/1976/267] : AIR 1978 NOC 223) and a decision reported in Abbayya v. State of Andhra Pradesh, (AIR 1960 AP 135), are to the same effect that summary eviction proceedings proposed under section 6 is held to be invalid for non-issue of a prior notice contemplated under section 7 of the."

36. For the mandatory requirement of issuance of notice under Sec.7 of TN Land Encroachment Act and that non-compliance of provision under the would vitiate the order under Sec.6 of the, learned counsel for the Petitioners placed reliance upon 1999 (III) CTC 588 [N. Govindan v. The Chief Personnel Officer, ICF, Madras-38 and another]; (1986) 1 SCC 133 [LQ/SC/1985/323] : AIR 1986 SC 872 [LQ/SC/1985/323] [Express Newspapers Pvt. Ltd. and others v. Union of India and others]; 1991 (II) MLJ 114 [P.V.Vijayakumar and others v. The Commissioner, Dharmapuri Municipality and another]; 2005 (4) LW 517 [Veluthai v. Administrative Commandant For Station Commander, Station Head Quarters, Fort St. George, Chennai-9]; 1992 (I) MLJ 568 [T.Rajalakshmi v. The Coimbatore City Municipal Corporation, rep. by its Commissioner, Coimbatore] and AIR 1990 Mad. 350 [LQ/MadHC/1990/281] [Hamsavalli and etc. v. The Tahsildar, Vridhachalam, South Arcot Ditrict].

37. Learned Senior Counsel for the Petitioners would further submit that the authorities have misused their power in breach of law which would render the eviction ultra vires infringing the fundamental rights of the Writ Petitioners. Contending that fraud on power voids the order if it is not exercised bonafide for the end design, the learned Senior Counsel for the Petitioners placed reliance upon AIR 1986 SC 872 [LQ/SC/1985/323] [Express Newspapers Pvt. Ltd. and others v. Union of India and others].

38. What emerges from the above decisions is that even assuming that a person is an encroacher, procedure known to law has to be followed before removing him from his place. Taking forcible possession of the land by the revenue department would amount to infringement of rights in interfering with the possession of the Petitioners.

39. Notice under Sec.7 of the cannot be intended to be served in the prescribed manner on the person stated to be in an unauthorized occupation of land being the property of Government is required to specify that property and ask to show cause why summary eviction should not be proceeded with. In case of no sufficient cause shown, service of further notice is required to be served to evict within a reasonable time.

40. Sec.7 of TN Land Encroachment Act reads as under:-

7. Prior notice to person in occupation. Before taking proceedings under Section 6 the Collector or Tahsildar or Deputy Tahsildar or Revenue Inspector or any authorized officer or any other officer specified by the State Government in this behalf (not being an authorized officer) (hereinafter referred to as the specified officer as the case may be shall cause to be served on the person reputed to be in unauthorized occupation of land being the property of Government a notice specifying the land so occupied and calling on him to show cause before a certain date why he should not be proceeded against under section 6.

Such notice shall be served in the manner prescribed in section 25 of the Tamil Nadu Revenue Recovery Act, 1864, or in such other manner as the State Government by rules or orders under section 8 may direct.

Provided that no such notice shall be necessary in the case of any person unauthorisedly occupying any land, if he had been previously evicted from such land under section 6 or if he has previously vacated such land voluntarily after the receipt of a notice under section 5-B or under this section:

Provided further that where the notice under this section is caused to be served by any Revenue Inspector or any specified officer he shall require the person reputed to be in unauthorized occupation of the land to show cause against such notice to the Collector, Tahsildar, Deputy Tahsildar or authorized person having jurisdiction, as the case may be and shall also make a report in writing containing such particulars as may be specified in rules or orders made under section 8 to the Collector, Tahsildar, Deputy Tahsildar or authorized person having jurisdiction, as the case may be.

41. Sec.6 of TN Land Encroachment Act empowering summary eviction from unauthorized occupation reads as under:-

"(1) Any person unauthorisedly occupying any land for which he is liable to pay assessment under section 3 (or section 3- A) may be summarily evicted by the Collector or subject to his control, by the Tahsildar or Deputy Tahsildar or any other officer authorized by the State Government in this behalf (hereinafter referred to as the authorized officer) and any crop or other product raised on the land shall be liable to forfeiture and any building or other construction erected or anything deposited thereon shall also, if not removed by him after such written notice as the Collector (or subject to his control, the Tahsildar or Deputy Tahsildar or authorized officer) may deem reasonable, be liable to forfeiture. Forfeitures under this section shall be adjudged by the Collector (for subject to his control by the Tahsildar, or Deputy Tahsildar, or authorized officer) and any property so forfeited shall be disposed of as the Collector (or subject to his control, the Tahsildar or Deputy Tahsildar or authorized officer) may direct.

(2) An eviction under this section shall be made in the following manner, namely: - By serving a notice in the manner provided in Section 7 of the person reputed to be in occupation or his agent requiring him within such time as the Collector (or the Tahsildar or Deputy Tahsildar or authorized officer) may deem reasonable after receipt of the said notice to vacate the land, and, if such notice is not obeyed, by removing or deputing a subordinate to remove any person who may refuse to vacate the same, and if the officer removing any such person shall be resisted or obstructed by any person, the Collector (or the Tahsildar, or Deputy Tahsildar or authorized officer) shall hold a summary inquiry into the facts of the case, and if satisfied that the resistance or obstruction was without any just cause and that such resistance or obstruction still continues, may issue a warrant for the arrest of the said person and on his appearance commit him to close custody in the office of the Collector (or of any Tahsildar or Deputy Tahsildar or authorized officer) for such period not exceeding 30 days as may be necessary to prevent the continuance of such obstruction or resistance or may send him with a warrant in the form of the schedule for imprisonment in the civil jail of the district for the like period."

42. Elaborately considering the scope of Secs.7 and 6 of TN Land Encroachment Act, Division Bench of this Court in 1970 (II) MLJ 298 [Abdul Rashid Sahib v. The Asst. Engineer (Highways), Kallakurichi and another] held as under:-

The essential steps for summary eviction under the are, therefore, these:

(1) The land should be the property of Government which has a subsisting right in it;

(2) Service of notice as required by Section 7;

(3) in case of no sufficient cause shown, service of a further notice to vacate within a reasonable time; and

(4) in case of resistance, a summary inquiry by the Collector to see if it is without any just cause.

It is only where the resistance is without just cause, the Collector has authority to issue a warrant for arrest and custody. If there is dispute as to ownership of the land, which prima facie appears to require scrutiny, there appears to be no machinery set up by the which is empowered to decide the dispute. The adjudication contemplated by Section 6(I) for forfeiture is only of any crop, or other product raised on the land, or any building erected thereon. Removal of resistance by arrest and custody can also be resorted to under sub-section 92) of section 6, only if such resistance is without any just cause, and this may be so, even where the land is admittedly Government property under encroachment, because there may be circumstances in such a case which may warrant resistance, or obstruction. The provisions of section 14 which saves suits by persons aggrieved by proceedings under the, also point to the fact that the propriety or validity of such proceedings are justiciable. So too open to review under Article 226 of the Constitution, is any order of the Collector under Section 6 (2) as to whether resistance or obstruction to summary eviction is, with, or without any just cause.

43. In the light of the above principles, it has to be considered whether in the instant case, eviction is vitiated/invalid for non-issuance of prior notice as contemplated under Sec.7 of the.

44. Contending that the action of the Respondents lacks bonafide and Respondents have acted in violation of principles of natural justice, learned Senior Counsel for the Petitioners has drawn Courts attention to certain dates and events. Site proposed for establishment of Arts college is said to have been inspected by the Minister for Agriculture on 06.8.2006, which was reported in Hindu on 07.8.2006. On 11.8.2006, Registered post/Acknowledgement due were sent to the Petitioners stating that the Petitioners are in enjoyment and occupation of the lands of Revenue department and calling upon them to vacate from the place. According to the Petitioners, they have not received any notice as stated in the counter-affidavit of the Respondents i.e. on 08.08.2006 and the Petitioners have denied the service of notice by affixture on the boundary stones. Petitioners have alleged that without serving any notice upon the Petitioners, Respondents came with battalion of police on 18.08.2006 at 7.30 A.M. with a Vajra Vehicle and demolished the shops and houses of the Writ Petitioners. Petitioners have produced number of photographs (Muniappan temple and a graveyard and shops and photograph showing posse of policemen).

45. Onbehalf of the Petitioners, it was submitted that Respondents have not given any time before commencing the demolition process and that Respondents have used the strength of police power to destroy and demolish the buildings and that there was deliberate flouting of due process of law.

46. Having regard to the seriousness of the allegations levelled by the Petitioners, this Court has called for the file and I have carefully examined the file. By perusal of the file, it is seen that Sec.7 notice (dated 22.7.2006) was served upon the Petitioners by affixture. In the said notice, 15 days time was given to the Petitioners to appear before the Authority to show cause as to why encroachment should not be removed. In Sec.7 notice, encroachment of land has been indicated and nature of encroachment has also been stated as TAMIL.

47. As there was no response to Sec.7 notice and since no sufficient cause was shown, summary eviction order under Sec.6 (dated 08.8.2006) was passed by the Tahsildar, Mettur calling upon the Petitioners to vacate within seven days from the date of receipt of notice. In the order of summary eviction, it was clearly indicated that in case of failure to vacate, there would be forfeiture of crop or other product and any building be liable to be forfeiture. Summary eviction order under Sec.6 (dated 08.8.2006) was also served upon the Petitioners by affixture.

48. Regarding service of notice under Sec.7 and eviction order under Sec.6 of the, learned Addl. Advocate General would submit that since encroachers refused to receive the notices including the Writ Petitioners, Respondents served the notice by affixture on the boundary stones and doors of the Petitioners after giving reasonable time.

49. When a person refuse to receive the notice under Sec.7 and 6 of TN Encroachment Act, the mode of services is stated in Sec.25 of TN Revenue Recovery Act. The service can be effected in any one of the following modes.

1. Personal service on the encroacher.

2. Service on a adult male member living with the encroacher.

3. Service by affixture in the place of ordinary residence by the encroacher.

4. Service by affixture in the land occupied.

As the Petitioners refuse to receive the notice as contemplated by law, Respondents served the notice by affixture on the boundary stones and the doors. As such there is no violation of law as alleged by the Petitioners. Incidentally, it may be noted that while dealt with in the Interlocutory Applications, Justice M. Thanikachalam has also examined the file and observed that notice under Sec.7 was served upon the Petitioners and eviction order under Sec.6 was passed after due process of law.

50. After serving eviction order under Sec.6 of the, on 16.8.2006, RDO has corresponded with all the departments:- BSNL (for disconnecting the telephone lines); Electricity department (to take care of electricity connections); Highways department (requesting necessary equipments for removal of encroachment). RDO has also requested for deployment of posse of police personnel for bandobust during eviction proceedings. In the counter-affidavit, the Respondents have averred that eviction proceedings went on peacefully and the encroachers have co-operated with the eviction proceedings and taken their articles. When examined in the light of the file, contention of the Petitioners as to non-compliance of provisions of TN Land Encroachment Act does not merit acceptance.

51. G.O.Ms.No.308 Higher Education (G1) Dept. dated 15.8.2006 was passed for setting up Arts and Science College in Mettur. In Para (2) of the said G.O., it is stated that the land in S.No.988/9, Samballi village, Masilapalayam in Kolathur road had been identified as the site for construction of Government Arts and Science College. Learned counsel for the Petitioners forcibly contended that when Masilapalayam was identified as the location for construction of college, with the malafide intention, Respondents have deliberately shifted the location. It was mainly argued that eviction of the Petitioners lacks bonafide and fraud on power and the proposed construction of the college in T.S.No.4/2 is nothing but misuse of power in breach of law.

52. Of course, in the said G.O., request to select the land for construction of college at Masilapalayam in S.No.988/9. Learned Addl. Advocate General has submitted that the lands selected for construction of Government Arts and Science college (S.No.988/9 in Masilapalayam) was not fit for construction, because the land lying too near the river bed and if the dam got full, there is possibility of flooding of the site and therefore, S.No.988/9 was found not suitable for construction of the college. The said land was also far away from Salem Camp bus stop and found not fit for construction of the college.

53. Subject matter of the property was found fit for construction of the college as it was on the Mettur-Bhavani road and it would be easy for getting buses and other transport.

54. Ultimately what could be rationale of the Petitioners case. Only if the Petitioners are landless poor agriculturists, perhaps Petitioners may claim in occupation of the encroached property and may seek for assignment.

55. Mr. Dhandapani, learned Spl. GP has submitted that Writ Petitioners are all relatives and have many Patta lands and are in occupation of encroached lands and are living in an affluent manner. From the details furnished, it is seen that Writ Petitioners in W.P.No.25849/2006 are having Patta lands in Navapatti village in various Survey Numbers to an extent of 47.73 acres. Like wise, Petitioners in W.P.No.25851/2006 are stated to be having Patta lands at Navapatti village in various Survey Numbers to an extent of 23.56 acres. While so, Writ Petitioners cannot complain of deprivation of their livelihood by eviction.

56. It is also pertinent to note that Writ Petitioners in W.P.Nos.25849 & 25851/2006 are also said to be constructing a private college under the name and style of Mettur Academy Services Trust. Writ Petitioners are said to be putting up construction in S.Nos.96, 97 and 98 of Navapatti village. The resistance of the Petitioners for the construction of Government Arts and Science college appears to be more in the nature of rivalry and personal gains.

57. The proposed construction of Government Arts and Science College is intended for the welfare of the public at large at Mettur. When the Government have taken measures for the welfare of the people, Court would be very slow to interfere with such welfare measures. On instructions, learned Addl. Advocate General informed the Court that the total student strength is 1407. College students in various courses studying in I, II & III year are presently lodged in Primary schools, private buildings and Kalyana Mandapams. The plight of the college students would be this who are in III year cannot lost sight of.

58. W.P.Nos.27452 to 27454/2006:-

Writ Petitioner in W.P.No.27452/2006 claimed to be in possession of 11 cents in T.S.No.4/2. Petitioner in W.P.No.27452/2006 is an practising Advocate and physically handicapped person. On 10.01.1996,he gave an application to the DRO to give assignment of the land to him (11 cents) in T.S.No.4/2. The said application has been processed, but no assignment was granted to the Petitioner.

59. Like wise Writ Petitioners in W.P.Nos.27453 and 27454/2006 are stated to be in possession of 7 cents respectively in T.S.No.4/2. Though Writ Petitioners claim to be in possession of the property, they have no vested right to be in possession.

60. Though Writ Petitioners in W.P.No.27452 to 27454/2006 claimed to be in occupation, as pointed out earlier, notice dated 22.7.2006 under Sec.7 was issued to the Writ Petitioners calling upon them to show cause as to why encroachment should not be removed. As there was no response to Sec.7 notice and since no sufficient cause was shown like any other instances, order under Sec.6 dated 08.8.2006 was passed by the Tahsildar, Mettur.

61. Earlier, by an elaborate order Justice M. Thanikachalam has vacated the interim injunction. Unfortunately, by the order dated 30.07.2008 Justice K.K. Sasidaran has passed an order of Status quo and consequently, the entire construction proceedings was stalled. The prime consideration should be welfare measures and the interest of students. In public interest when decisions are taken by the Executive, judiciary must exercise utmost self-restraint. Court should not ordinarily interfere in the administrative matters.

62. Government must have freedom to take decisions in public interest. Court should be slow to interfere with the policy decisions which are taken in public interest. Having regard to the public interest and backgroundness of the area, Government have taken the decision to form a College in Mettur. Students must have buildings and other infrastructures befitting the course. Any interference by the Court may prove to be counter productive affecting the interest of the students and public at large. There is no substance in the grievance of the Writ Petitioners as to non-issuance of notice under Sec.7 or non-compliance of the provisions of TN Land Encroachment Act. Writ Petitioners are not entitled to the equitable and discretionary relief under Art.226 of Constitution of India.

63. In the result, all the Writ Petitions are dismissed. No costs. Status quo granted on 30.07.2008 is vacated.