The Madras High Court while observing that the petitioner is under obligation to prove his title to the land and that too a legal document and not an un-registered document dismissed a petition challenging a notice in Form-III issued under sub-rule (1) of Rule 6 of the Tanks and Eviction of Encroachment Rules, 2007.
The petition has been filed by M. Dhayalan.
The challenge to the impugned notice has been made mainly on the ground that the land in question belongs to the petitioner, yet, notice in Form-III has been given with a direction to evict him from the land. A reference of sale deed has been given to indicate title of the land and perused by this Court.
The Division Bench of Chief Justice Munishwar Nath Bhandari and Justice N. Mala found that the sale deed referred by the petitioner is an un-registered document, which cannot create right in favour of the petitioner and it has been fairly conceded by learned counsel for the petitioner that the sale deed is un-registered.
“The aforesaid is only one part, otherwise, there is nothing on record to show that the executor of the deed was having title to the land i.e. N.Krishnamoorthy, because the land, otherwise, belongs to tank as per the notice. Thus, the petitioner is under obligation to prove his title to the land and that too a legal document and not an un-registered document”, the Bench observed.
At this stage, counsel for the petitioner has given a reference to the judgment of a Coordinate Bench of this Court in the case of K.Sambandhamoorthy v. The Secretary, Public Works Department, Water Resource Department, Government of Tamil Nadu and others [W.P.No.28289 of 2021, decided on 16.02.2022], wherein a similar challenge to Form-III was made and the Court directed to treat Form-III as show cause notice and thereby to give an opportunity of hearing to the petitioner. Thus, a prayer is to follow the said judgment.
The have gone through the judgment of the Coordinate Bench in the case of K.Sambandhamoorthy, supra and observed that the issue raised therein was competence of the officer who issued notice in Form-III, which is not an issue herein and, further, no reason has been given to convert Form-III as show cause notice, which otherwise cannot be converted going against the statutory provision, because after serving notices in Form-I and II, the Court cannot issue direction against the statutory provision.
It is settled law that any judgment of the Court running counter to any statutory provision would be per incuriam, as has been held by the Apex Court in the case of Dr. Shah Faesal and others v. Union of India and another, (2020) 4 SCC 1. In the instant case, since no document has been produced by the petitioner to prove his legal title over the land in question, the Court do not find any ground to cause interference in the notice in Form-III.