E. Krishna Pillai vs The Tahsildar and Another

E. Padmanabhan, J.—This writ petition has been filed by the petitioner seeking for the issue of writ of mandamus forbearing the respondents from interfering with his peaceful possession and enjoyment of the land in his occupation, comprised of house ground and premises bearing old Door No.871, New Door No.7 Kali Amman Koil St, Koyambedu Chennai-107.

This court ordered notice to the learned Government Advocate and subsequently, this matter is posted today.

It is contended by Mr. Ashok Kumar, learned Counsel for the petitioner, that without serving notice u/s 7, order u/s 6 of the Land Encroachment Act has been passed. The learned Counsel also points out that the year of notice as 1998.

This Court directed the learned Government Advocate to produce the file and the same has been placed before court. According to the learned Government Advocate, notice u/s 7 of the Land Encroachment Act has been issued on 8.10.2001 to Ms. Kanniammal, wife of Mr. Elumamali Naiker in respect of occupation of vaikal land measuring three cents comprised in S.No.1/1 part. According to the file, this notice was sought to be served on the occupants, which they refused to receive. An endorsement to this effect also finds a place on the notice made by firka Inspector-II on 8.10.2001.

Following the same, order u/s 6 of the Land Encroachments Act was passed, which was attempted to be endorsement, occupants have refused to receive it. I do not find any reason to disbelieve the attempt to serve and the endorsement of refusal as recorded by the firka Inspector. But there is inherent illegality, namely the notice has been addressed to Kanniammal, who is dead even on the date of Section 7 notice. Kanniammal is reported to have dead a few years back. Obviously, Kanniammal was not there to receive the notice when Section 7 notice was served. Section 6 order was made and issued against a dead person which could neither be enforced nor it could be sustained. The persons who claim to be the heirs it could be sustained. The persons who claim to be the heirs of the deceased Kaliamal raised objections, but of no avail.

In the circumstances, there will be a direction to the first respondent to issue a fresh notice on the occupants of the disputed land namely, premises bearing old Door No.8/1, New Door No.7 Kali Amman Koil St, Koyambedu, Chennai-107, which is according to the petitioner and S.No.1/1 part, according to the Section 6 proceedings. The said notice shall be served on the persons in occupation, including the writ petitioner and thereafter take appropriate action both under 7 and 6. With the above directions the writ petition is allowed. WMP No. 10247 of 2002 is closed.