✦ High Court of India · 18 Mar 2025

High Court · 2025

Case Details High Court of India · 18 Mar 2025

Court

High Court of India

Decided

18 Mar 2025

Bench

M SUNDAR

Length

1,591 words

Acts & Sections

Constitution of India The Tamil Nadu Protection of Tanks and Eviction of Encroachment Act 2007

W.P.No.14239 of 2024IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 18.03.2025CORAMTHE HONOURABLE MR.JUSTICE M.SUNDAR andTHE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADIW.P.No.14239 of 2024&W.M.P.Nos.15434, 15436 & 28899 of 2024K.Manimegalai... Petitionervs.1. The District Collector Kallakurichi District Kallakurichi2. The Revenue Divisional Officer Kallakurichi The Chairperson/Convener Divisional Monitoring Committee (Encroachment) Kallakurichi Kallakurichi District3. The Tahsildar Kallakurichi Taluk Kallakurichi District4. The Assistant Engineer Water Resource Department (Irrigation Division) P.W.D Kallakurichi Page Nos.1/13 https://www.mhc.tn.gov.in/judis W.P.No.14239 of 2024 Kallakurichi District5. The Assistant Electrical Engineer (Town) TANGEDCO Kallakurichi Kallakurichi District... RespondentsWrit Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari calling for the records related to the “Eviction Order No.Nil dated 17.05.2024 passed by the fourth respondent and quash the same.For Petitioner : Mr.M.Venkateshfor Mr.R.M.Makesh KumaravelFor Respondents:Mr.T.K.SaravananAdditional Government Pleader for R1 to R5O R D E R[Order of the Court was made by M.SUNDAR., J.,]Captioned main 'Writ Petition' ['WP' for the sake of brevity] has been filed with a prayer for issue of writ of certiorari assailing a notice issued by R4 (signed by R4 on 17.05.2024). This notice shall hereinafter be referred to as 'impugned notice' and a scanned reproduction of the same is as Page Nos.2/13 https://www.mhc.tn.gov.in/judis W.P.No.14239 of 2024follows:Page Nos.3/13 https://www.mhc.tn.gov.in/judis W.P.No.14239 of 20242. Mr.M.Venkatesh, learned counsel representing the counsel on record for writ petitioner, who is before us, submits that the impugned notice issued by R4 directly fixes 28.05.2024 as the date for removal of alleged encroachment and calls upon the writ petitioner to remove the alleged encroachment forthwith without show-causing or giving an opportunity to the writ petitioner.3. Mr.T.K.Saravanan, learned Additional Government Pleader for the respondents submits that the impugned notice has been issued as encroachment in a water body has been noticed. Impugned notice has been issued under 'The Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007' (hereinafter 'Tanks Act' for the sake of convenience and clarity) is further say of learned State counsel. 4. We examined the rival submissions and the impugned notice.5. The impugned notice refers to disposal of tHf;F vz;/7053/ 2020. It is submitted by both sides that this is a reference to order dated 19.03.2024 made in W.P.No.7053 of 2020 and WMP thereat by another Hon'ble Division Bench. W.P.No.7053 of 2020 has been filed by one Ms.Sarojini Muthusamy. Learned State counsel submits that she is another Page Nos.4/13 https://www.mhc.tn.gov.in/judis W.P.No.14239 of 2024alleged encroacher who is similarly placed qua writ petitioner.6. The vires of certain provisions of Tanks Act was assailed in T.S.Senthil Kumar case {T.S.Senthil Kumar Vs. Government of Tamil Nadu and others} and a Hon'ble Division Bench in and by order dated 10.02.2010 reported in (2010) 3 MLJ 771: 2010 Writ LR 113:MANU/TN/0281/2010 upheld the vires of the Act but read into the Statute /provisions, a provision for giving opportunity to the alleged encroachers. This is vide paragraph 42 and relevant portion of paragraph 42 is as follows:'42. In the result, we dispose of the writ petition in the same lines adopting the same method which the Supreme Court done in the two cases in Mysore v. J.V. Bhat (supra) and (ii) Scheduled Caste & Weaker Section Welfare Association v. State of Karnataka (supra), where the Supreme Court dealt with the Mysore Slum (Improvement and Clearance) Act, 1958 and without declaring that the Act is unconstitutional since no opportunity is given, we will hold that there is nothing in the Act which excludes the principles of natural justice. The Act does not specifically indicate that the encroachers do not have a right to be heard and therefore we issue the following directions. (a) .....(b) .....(c) .....Page Nos.5/13 https://www.mhc.tn.gov.in/judis W.P.No.14239 of 2024(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 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.’ 7. Thereafter, a Full Bench of this Court in T.K.Shanmugam {T.K.Shanmugam Vs. State of Tamil Nadu reported in 2015 (5) LW 397} reiterated T.S.Senthil Kumar principle and held that an alleged encroacher has to be given an opportunity. This is vide sub-sub-paragraphs (i), (ii) and (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 Page Nos.6/13 https://www.mhc.tn.gov.in/judis W.P.No.14239 of 2024upon 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)......(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 Page Nos.7/13 https://www.mhc.tn.gov.in/judis W.P.No.14239 of 2024may 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.'8. There can be no disputation or contestation on the point that Hon'ble Full Bench ratio i.e., T.K.Shanmugam principle has to be followed.9. In the aforesaid backdrop and obtaining legal position, learned State counsel, on instructions, submits that Form III under the Tanks Act has already been served on the writ petitioner and has placed before us a copy of the same and a scanned reproduction of the same is as follows:Page Nos.8/13 https://www.mhc.tn.gov.in/judis W.P.No.14239 of 2024Page Nos.9/13 https://www.mhc.tn.gov.in/judis W.P.No.14239 of 202410. In the light of the narrative and discussion thus far, the following order is passed:(i) The aforementioned Form III shall be construed to have been served on the writ petitioner today (18.03.2025);(ii) The writ petitioner can now give her objections within a period of two weeks from today i.e., on or before 01.04.2025 and this is vide sub-sub-paragraph (ii) of sub-paragraph (f) of paragraph 15 of T.K.Shanmugam;(iii) Thereafter, the official respondent concerned, shall consider the objections and pass orders in accordance with the provisions of the Act giving time, if encroachment is found and this will be in accordance with sub-sub-paragraph (iii) of sub-paragraph (f) of paragraph 15 of T.K.Shanmugam;(iv)The order made in the aforesaid manner shall be duly served on the writ petitioner under due acknowledgment within five working days from the date on which the order is made;(v) This Court makes it clear that all questions are left open and the rights and contentions of the writ petitioner as well as Page Nos.10/13 https://www.mhc.tn.gov.in/judis W.P.No.14239 of 2024State are left open when the objections are sent and the same are considered. To put it differently, this Court has not expressed any view or opinion on alleged encroachment;(vi) Though obvious this Court makes it clear that coercive action, if any and if that be so shall be subject to and depending on the orders to be made by the authorities concerned vide sub-sub-paragraph (iii) of sub-paragraph (f) of paragraph 15 of T.K.Shanmugam.Captioned WP disposed of in the aforesaid manner. As this Court has made it clear that coercive action (if any and if that be so) will be subject to and depending on the orders to be made, captioned three WMPs have become otiose and the same are disposed of as closed. There shall be no order as to costs.(M.S.,J.)(K.G.T.,J.) 18.03.2025(2/2)Index : Yes/NoNeutral Citation : Yes/NogpaPage Nos.11/13 https://www.mhc.tn.gov.in/judis W.P.No.14239 of 2024To1. The District Collector Kallakurichi District Kallakurichi2. The Revenue Divisional Officer Kallakurichi The Chairperson/Convener Divisional Monitoring Committee (Encroachment) Kallakurichi Kallakurichi District3. The Tahsildar Kallakurichi Taluk Kallakurichi District4. The Assistant Engineer Water Resource Department (Irrigation Division) P.W.D Kallakurichi Kallakurichi District5. The Assistant Electrical Engineer (Town) TANGEDCO Kallakurichi Kallakurichi DistrictPage Nos.12/13

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