SECRETARY OF STATE FOR INDIA IN COUNCIL REPRESENTED BY THE COLLECTOR OF NORTH ARCOT Vs. TRAMANUJAM CHETTY

JUDGEMENT

(1.) The first question raised for our decision in this civil miscellaneous appeal is whether the plaint discloses a proper cause of action. The learned Government Pleader for the appellant relies on the Full Bench ruling in the Secretary of State ; v. Illikkal Assan 32 Ind. Cas. 755 : 39 M. 727 : 3 L.W. 228 : 30 M.L.J. 255 : 19 M.L.T. 157 : (1916) 1 M.W.N. 167 and contends that it does not.

(2.) The plaint, as now amended, bases the cause of action on a notice given to the plaintiffs by the Sub-Collector of Tirupattur, Exhibit I under Section 6% Clause 2 of Act III of 1905, as modified in appeal under Section 20 of that Act by the District Collector. Exhibit I directed toe plaintiffs to demolish within 20 days four anicuts which they had erected in the Pachal river and to "withdraw from the said unauthorised occupation" and stated if you fail to do so, you will be evicted from the said anicuts and they will be demolished." The Collector modified this notice by confining the order to demolish to three anicuts and by directing the levy of penal water rate on irrigation from the one anicut which was allowed to remain. The plaintiffs allege in their plaint that they are entitled to the Pachal river or Kalvai and to the dams and the water in it in various ways, viz., as absolute owners, by prescription, by easement, and as riparian owners. They ask for a declaration of their title, and for an injunction restraining the Collector from carrying out the order above mentioned.

(3.) It was no doubt held by the Full Bench in Secretary of State v. Illihkal Assart 32 Ind. Cas. 755 : 39 M. 727 : 3 L.W. 228 : 30 M.L.J. 255 : 19 M.L.T. 157 : (1916) 1 M.W.N. 167 that a notice under Section 7 of Act HI of 1905 gives rise to no cause of action. But a notice under Section 6 differs very materially from a notice under Section 7. The former is a step in eviction itself, whereas the latter only called upon the person concerned to show cause why proceedings should not be taken,, against him under Section 5 or 6 of the Act, In it there is no threat of invasion of the rights of the person in possession, whereas there is clearly such a threat in the former as shown by the notice in the present suit. Plaintiffs are, therefore, entitled to ask for an injunction under Section 54 of the Specific Relief Act. The Full Bench ruling relied on is thus clearly distinguishable; it is not applicable to a notice under Section 6 of the Act.