High Court · 2025

W.P.No.8233 of 2023IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 25.06.2025CORAMTHE HONOURABLE MR.JUSTICE M.SUNDAR andTHE HONOURABLE MR.JUSTICE HEMANT CHANDANGOUDARW.P.No.8233 of 2023V.P.PrabhakaranS/o.Pichaikannu... Petitionervs.1.The District CollectorDistrict Collector OfficeTiruvarur District.2.The District Revenue OfficerDistrict Collector OfficeTiruvarur District.3.The TahsildarThiruthuraipoondi TalukTiruvarur District. ... RespondentsWrit Petition filed under Article 226 of the Constitution of India seeking a Writ of Mandamus, to direct the 2nd and 3rd respondents to act as per the directions of the first respondent dated 06.11.2019 bearing reference Page Nos.1/9 https://www.mhc.tn.gov.in/judis W.P.No.8233 of 2023No.Na.Ka.3229/2019/Aa-3.For Petitioner :Mr.V.T.NarendiranFor Respondents:Mr.T.K.SaravananAdditional Government Pleader*****O R D E R[Order of the Court was made by M.SUNDAR J.]Subject matter of captioned main 'Writ Petition' ['WP' for the sake of brevity] is alleged encroachment in a 'water body, i.e., S.No.312/8, Kothamangalam Panchayat, Tiruthuraipoondi Taluk, Tiruvar District' {hereinafter 'said water body' for the sake of brevity, convenience and clarity}.2. Captioned WP which has been filed for removal of encroachment in said water body is predicated on a representation dated 03.09.2019 {hereinafter 'said representation' for the sake of brevity, convenience and clarity}. To be noted, pursuant to said representation, R1 addressed R3 vide communication dated 06.11.2019 bearing reference No.Na.Ka.3229/2019/Aa-3 which reads as follows:Page Nos.2/9 https://www.mhc.tn.gov.in/judis W.P.No.8233 of 2023Page Nos.3/9 https://www.mhc.tn.gov.in/judis W.P.No.8233 of 20233. Inaction on the part of the respondents has necessitated the captioned WP is learned counsel for writ petitioner's say.4. Issue notice to respondents. Mr.T.K.Saravanan, learned Additional Government Pleader accepts notice for respondents. Mr.T.K.Saravanan, learned Additional Government Pleader for respondents submits, on instructions that action for removal of encroachment was initiated and all encroachments in said water body have been removed on 28.01.2024 vide 'the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007 (Tamil Nadu Act 8 of 2007)' (hereinafter 'Tanks Act' for the sake of brevity) but learned counsel for writ petitioner enters upon a disputation and submits that encroachments remained.5. In the the light of the above scenario, following order is made:(i) Survey will be done, after putting all concerned on notice within a period of six weeks from today i.e., on or before 06.08.2025;(ii) If encroachment is found, action under Tanks Page Nos.4/9 https://www.mhc.tn.gov.in/judis W.P.No.8233 of 2023Act will be commenced as expeditiously as the business of official respondents would permit but in any event within a period of six weeks therefrom i.e., on or before 17.09.2025.6. Though obvious, this Court deems it appropriate to make it clear that due process of law vide Tanks Act necessarily means adherence to procedure put in place by a Hon'ble Full Bench of this Court vide T.K.Shanmugam case [T.K.Shanmugam Vs. State of Tamil Nadu] reported in 2015 (5) LW 397. As regards T.K. Shanmugam principle, relevant paragraphs are sub sub-paragraphs (i) to (iii) of subparagraph (f) of paragraph 15 and the same reads 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 Page Nos.5/9 https://www.mhc.tn.gov.in/judis W.P.No.8233 of 2023Bench 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) ...... (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 Page Nos.6/9 https://www.mhc.tn.gov.in/judis W.P.No.8233 of 2023the 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.' To be noted, T.K.Shanmugam reiterates T.S.Senthil Kumar principle [T.S.Senthil Kumar Vs. Government of Tamil Nadu reported in (2010) 3 MLJ 771] rendered by Hon'ble Coordinate coequal Division Bench.7. The above means that the alleged encroacher/s will be put on notice/show caused, given an opportunity and action will be subject to and depending on cause shown / response of noticee/s. Therefore, captioned main WP is taken up with the consent of learned counsel for writ petitioner and State counsel. Though obvious, it is made clear that this order does not touch upon the rights of noticee/s under the Tanks Act. This means that all the rights and contentions of noticee/s stand preserved for responding suitably when show caused / visited with notices. Though obvious, for the sake of specificity, it is clarified that this Court, in instant order, has not expressed any view or opinion one way or the other regarding alleged Page Nos.7/9 https://www.mhc.tn.gov.in/judis W.P.No.8233 of 2023encroachment qua said water body.8. In the light of the narrative thus far, captioned main WP is disposed of in the aforesaid manner. There shall be no order as to costs. (M.S.J.,)(H.C.J.,) 25.06.2025Index : Yes / NoNeutral Citation : Yes / NoSpeaking / Non-speakingmkTo1.The District CollectorDistrict Collector OfficeTiruvarur District.2.The District Revenue OfficerDistrict Collector OfficeTiruvarur District.3.The TahsildarThiruthuraipoondi TalukTiruvarur District. Page Nos.8/9 https://www.mhc.tn.gov.in/judis W.P.No.8233 of 2023M.SUNDAR, J.,andHEMANT CHANDANGOUDAR, J.,mkW.P.No.8233 of 202325.06.2025Page Nos.9/9