✦ High Court of India · 27 Jan 2025

Madrasdated High Court · 2025

Case Details High Court of India · 27 Jan 2025

Court

High Court of India

Decided

27 Jan 2025

Bench

M SUNDAR

Length

2,325 words

Acts & Sections

Constitution of India Tamil Nadu Patta Pass Book Act 1983 Tamil Nadu Protection of Tanks and Eviction of Encroachment Act 2007 The Tamil Nadu Patta Passbook Act 1983

W.P.No.2589 of 20256.The Assistant EngineerWater Resources DepartmentAssistant Engineer's OfficePublic Works DepartmentPadappaiIrrigation DivisionKancheepuram District – 601 301RespondentsWrit Petition filed under Article 226 of the Constitution of India seeking a writ of certiorarified mandamus to call for the records of the sixth respondent, viz., the Assistant Engineer, Water Resources Department notice dated 07.01.2025 in Form III under the Tamil Nadu Protection of Tanks and Eviction of Encroachment Rules, 2007 and to quash the same and to further direct the respondents to conduct the proper survey and to disclose the details of the same to the petitioner.For petitionerMr. P.M. SubramaniamSr. Counselfor Mr. B. RavirajaFor respondentsMr. V. RaviSpecial Government Pleader- - - - -Page Nos.2/14 https://www.mhc.tn.gov.in/judis W.P.No.2589 of 2025ORDER[made by M.SUNDAR, J.]Captioned 'writ petition' (hereinafter 'WP' for the sake of brevity) has been filed inter alia assailing a notice issued by R6 - Assistant Engineer, Water Resources Department, Public Works Department, Padappai, Irrigation Division, Kancheepuram District - 601 301 (signed by R6 on 07.01.2025) (hereinafter 'impugned notice' for the sake of convenience and clarity).2.Caption to impugned notice says 'Form – III – See Rule 6(1)', a perusal of the impugned notice brings to light that this is a reference to Form - III of the 'Tamil Nadu Protection of Tanks and Eviction of Encroachment Rules, 2007' (hereinafter 'Tanks Rules' for the sake of brevity) made under the 'Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007 (Act 8 of 2007)' (hereinafter 'Tanks Act' for the sake of brevity), subject matter of impugned notice is 'Survey Nos.373/1,374 and 376 in Madippakkam – 2 Village, Shozhinganallur Taluk, South Madras Zone, Chennai District' (hereinafter 'said land' for the sake of convenience and clarity). Page Nos.3/14 https://www.mhc.tn.gov.in/judis W.P.No.2589 of 20253.Mr. P.M. Subramaniam, learned Senior Counsel instructed by Mr. B. Raviraja, learned counsel on record for writ petitioner is before us.4.Learned Senior Counsel, inviting the attention of this Court to the impugned notice, adverted to earlier rounds of litigations as well as an earlier 'show cause notice' (hereinafter 'SCN' for the sake of brevity) issued by R6 (signed and undated notice issued by R6) served on noticee on 18.11.2022, noticee/writ petitioner's response dated 30.11.2022 and proceedings dated 10.02.2024 made by Junior Engineer, Water Resources Department. Learned Senior Counsel points out that thereafter, R4 (Revenue Divisional Officer, South Chennai Zone, Guindy), in and by proceedings dated 06.11.2024 bearing reference Na.Ka.No.m2/4984/2024, cancelled the patta issued in favour of writ petitioners. Scanned reproduction of the most relevant paragraph of this proceedings is as follows:Page Nos.4/14 https://www.mhc.tn.gov.in/judis W.P.No.2589 of 20255.It is submitted by learned Senior Counsel that this 06.11.2024 proceedings of R4 has been assailed by writ petitioners by way of a statutory appeal under Section 12 of the 'Tamil Nadu Patta Pass Book Act, 1983 (Act 4 of 1986)' (hereinafter 'Patta Pass Book Act' for the sake of brevity), R3 (District Revenue Officer – DRO for the sake of brevity) is the Appellate Authority, R3 is in seizin of the matter, second writ petitioner came to this Court seeking disposal of the statutory appeal, learned State counsel undertook that R3 (DRO-Appellate Authority) will dispose of the appeal as expeditiously as the business of R3 would permit but in any event on or before 18.03.2025 and the order in this regard is order dated 21.01.2025 in W.P.No.1143 of 2025 which reads as follows:Page Nos.5/14 https://www.mhc.tn.gov.in/judis W.P.No.2589 of 2025'IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 21.01.2025CORAM:THE HONOURABLE MR.JUSTICE M.SUNDAR andTHE HONOURABLE MR.JUSTICE K.RAJASEKARW.P.No.1143 of 2025and W.M.P. Nos.1383 and 1386 of 2025Revathi Sambasivam... PetitionerVs.1.The Principal Secretary, The Government of Tamil Nadu, Public Works Department, Fort St. George, Chennai – 9.2.The District Collector, Chennai District, Rajaji Salai, Chennai – 1.3.District Revenue Officer, Office of DR), 4th Floor, Chennai Collectorate Building, Rajaji Salai, Chennai – 1.4.Revenue Divisional Officer, South Chennai Zone, GST Road, Guindy, Chennai – 32.5.The Tahsildar, Sozhinganallur Taluk, Chennai – 119.6.The Asst. Engineer (Irrigation Section), Water Resources Department, Public Works Department, Padappai, Kancheepuram District – 601 301. ... RespondentsWrit Petition filed under Article 226 of The Constitution of India praying to issue a Writ of Mandamus directing the third respondent to dispose of the Appeal No.E2790173 of 2024 dated 16.12.2024.For Petitioner : Mr.P.M.Subramaniam,Page Nos.6/14 https://www.mhc.tn.gov.in/judis W.P.No.2589 of 2025Senior Counselfor Mr.B.Ravi RajaFor Respondents:Mr.M.S.Arasakumar,Government AdvocateORDER[Order of the Court was made by M.SUNDAR, J.,]Captioned 'Writ Petition' (hereinafter 'WP' for the sake of brevity) has been filed with a mandamus prayer qua statutory appeal dated 16.12.2024 being a statutory appeal under Section 12 of The Tamil Nadu Patta Passbook Act, 1983 (Tamil Nadu Act 4 of 1986). This 'statutory appeal' shall be referred to as 'said appeal' and 'The Tamil Nadu Patta Passbook Act, 1983 (Tamil Nadu Act 4 of 1986)' shall be referred to as 'said Act', both for the sake of convenience and clarity.2. Mr.P.M.Subramaniam, learned senior counsel instructed by Mr.B.Ravi Raja, learned counsel on record for the writ petitioner adverting to the said appeal submitted that the said appeal is a statutory appeal which has been filed assailing an order dated 06.11.2024 (erroneously mentioned as 07.12.2024 in the appeal petition) made by R5 (The Tahsildar, Sozhinganallur Taluk, Chennai – 119.) before us. Learned senior counsel submitted that the appeal pertains to restoration of pattas. 3. Issue notice.4. Mr.M.S.Arasakumar, learned Government Advocate accepts notice for all the respondents and submits on instructions that R3 (District Revenue Officer, Chennai) who is the Appellate Authority has fixed enquiry on said appeal today at 3.00 p.m. 5. Responding to this, learned senior counsel on instructions submitted that the writ petitioner and/or her authorised representative or counsel would participate in the enquiry.6. In the aforementioned scenario, on instructions, learned State counsel fairly submitted that the said appeal will be disposed of by R3/ Appellate Authority within eight weeks from today i.e., on or before 18.03.2025. This submission is recorded.7. Recording the stated position of the learned State counsel draws curtains on the captioned matter and therefore with the consent of learned counsel on both sides, main WP is taken up. Be that as it may, for the sake of clarity, we deem it appropriate to write that all the rights and contentions of the writ petitioner are left open and R3 / Appellate Authority shall decide said appeal under said Act on its own merits and in accordance with law untrammeled by this order.Page Nos.7/14 https://www.mhc.tn.gov.in/judis W.P.No.2589 of 20258. Captioned WP is disposed of in the aforesaid manner. Consequently, captioned Writ Miscellaneous Petitions (WMPs) thereat are disposed of as closed. There shall be no order as to costs.(M.S.,J.)(K.R.S.,J.) 21.01.2025'6.It is the specific say of learned Senior Counsel that when cancellation of patta qua said land itself is the subject matter of statutory appeal and when R3 is in seizin of statutory appeal, the impugned notice ought not to have been issued. It was also argued that as impugned notice has been issued post 06.11.2024 proceedings of R4 which is now under appeal before R3, there should have been a SCN.7.Issue notice to respondents.8.Mr. V. Ravi, learned Special Government Pleader, accepts notice for all respondents and submits, on instructions, that R3 will now dispose of the statutory appeal expeditiously and in any event within time frame vide our aforementioned judicial order dated 21.01.2025.9.Owing to the limited scope of the captioned main WP, main WP was taken up in the Admission Board with the consent of the learned counsel on both sides.Page Nos.8/14 https://www.mhc.tn.gov.in/judis W.P.No.2589 of 202510.Owing to the narrowed down scope of the captioned main WP, it may really not be necessary to advert to earlier rounds of litigation and it will suffice to write two aspects pertaining to the impugned notice. Aspect no.1 is, impugned notice should await outcome of the statutory appeal and aspect no.2 is, impugned notice should now be treated as SCN in the light of principle laid down by a Hon'ble Full Bench of this Court in T.K.Shanmugam's case [T.K.Shanmugam Vs. State of Tamil Nadu] reported in 2015 (5) LW 397, vide sub sub-paragraphs (i) to (iii) of sub-paragraph (f) of paragraph 15 which read as follows:'15. Certain provisions of Tank Act namely, Sections 4 to 10 were challenged in a Writ Petition with a prayer to declare those provisions as null and void and contrary to Article 14 of the Constitution of India on the ground that those provisions confer upon the executive, unguided and uncanalised discretionary power, since they denied to the persons aggrieved an opportunity of being heard. The said Writ petition was heard by a Division Bench to which one of us (M.Sathyanarayanan,J.) was a party. The Division Bench took note of the various decisions including the decision in the case of Sivakasi Region Tax Payers Association (supra), disposed of the Writ Petitions without declaring the provisions of the Act as unconstitutional, since no opportunity is given and held that there is nothing in the Act which excludes the principles of natural justice, the Act (Tank Act) does not specifically indicate that the encroachers do not have right to be heard and issued the following directions vide judgment dated 10.02.2010, reported in 2010 3 MLJ 771.(a).....(b).....(c).....(d)......Page Nos.9/14 https://www.mhc.tn.gov.in/judis W.P.No.2589 of 2025(e).....(f)We uphold the Act, while we provide for observance of principles of natural justice within the Act itself, as under.(i) When the officer of the Public Works Department publishes the notice in Form-II in the notice boards of the offices of Village Administrative Officer, Village Panchayat Office and the Water Resources Organization, notice shall also be issued to the alleged encroacher to the effect that the survey indicates that the place in his/her occupation is an encroachment and secondly, the notice in Form-III of the Rules may be issued.(ii) On receipt of the said notice, the encroacher may give his/her objections relating to the classification of the land in his/her occupation and the nature of the encroachment within a period of two weeks.(iii) Thereafter, the authorities shall consider the objections and pass appropriate orders, in accordance with the provisions of the Act, giving time to the encroachers to remove the encroachment.'11.Before we pen the operative portion infra, we make it clear that 06.11.2024 proceedings of R4 has been made after service of earlier SCN under Tanks Act on writ petitioner on 18.11.2022, writ petitioner's response dated 30.11.2022 and proceedings dated 10.02.2024 of Junior Engineer, Water Resources Department, being peculiar facts of this case and therefore, this order shall not serve as a precedent for matters under Tanks Act.Page Nos.10/14 https://www.mhc.tn.gov.in/judis W.P.No.2589 of 202512.In the light of the narrative, discussion and dispositive reasoning thus far, following order is made:(i)Impugned notice is now kept in abeyance till disposal of statutory appeal before R3;(ii)If the outcome of the statutory appeal is in favour of the writ petitioners, that will be the curtains on the matter;(iii)If the outcome of the statutory appeal is not in favour of the writ petitioners, impugned notice will get activated and the same will then become a SCN in view of T.K. Shanmugam principle, more particularly, sub sub-paragraphs (i) to (iii) of sub-paragraph (f) of paragraph 15 thereat;(iv)This shall be communicated to the writ petitioners by way of a separate communication and thereafter, writ petitioners shall respond to the impugned notice and further proceedings under Tanks Act and Tanks Rules (if that be so) shall be in accordance with the procedure vide T.K. Shanmugam supra;(v)We have noticed that there is a provision for filing a revision under Section 13 of the Patta Pass Book Act and therefore, if the order in the statutory appeal is Page Nos.11/14 https://www.mhc.tn.gov.in/judis W.P.No.2589 of 2025adverse to the writ petitioners and if the writ petitioners seek revision, obviously, further proceedings vide impugned notice should await outcome of the revision and finality of the same too [if it is filed within a fortnight from date of service of order of DRO (R3-Appellate Authority) on writ petitioners];(vi)We make the position clear as revision which is a statutorily vested right qua writ petitioners should not be neutralized;(vii)If the matter reaches revision stage, the revisional authority under the Patta Pass Book Act will do well to dispose of the revision as expeditiously as his official business would permit but in any event within a period of 30 days from date of filing of revision petition.(viii)Though obvious, we make it clear that any further coercive action, if that be so, will be subject to and depending on the final outcome of the impugned notice which is now kept in abeyance to await the order of Appellate Authority (R3);Page Nos.12/14 https://www.mhc.tn.gov.in/judis W.P.No.2589 of 2025Captioned main WP is disposed of in the aforesaid manner. Consequently, captioned writ miscellaneous petitions thereat are disposed of as closed. There shall be no order as to costs.(M.S., J.) (K.R.S., J.)27.01.2025Index : Yes / NoNeutral Citation : Yes / NoSpeaking order / Non-speaking ordercadP.S.1.Upload forthwith2.All concerned, including the Registry of Madras High Court, to act forthwith on the uploaded soft copy of this proceedings as uploaded in the official website of this Court. To be noted, the soft copies uploaded in the official website of this Court are watermarked besides being QR coded.3.List on 09.06.2025 under the cause list caption 'FOR REPORTING COMPLIANCE'Page Nos.13/14 https://www.mhc.tn.gov.in/judis W.P.No.2589 of 2025M.SUNDAR, J.andK.RAJASEKAR, J.cadTo1.The Principal SecretaryGovernment of Tamil NaduPublic Works DepartmentFort St. George, Chennai 600 0092.The District CollectorChennai District, Rajaji Salai, Chennai 600 0013.The District Revenue OfficerOffice of DRO, IV FloorChennai Collectorate BuildingRajaji Salai, Chennai 600 0014.The Revenue Divisional OfficerSouth Chennai Zone, GST RoadGuindy, Chennai 600 0325.The TahsildarSozhinganallur Taluk, Chennai 600 1196.The Assistant EngineerWater Resources DepartmentAssistant Engineer's Office, Public Works DepartmentPadappai, Irrigation DivisionKancheepuram District – 601 301W.P.No.2589 of 202527.01.2025Page Nos.14/14

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