High Court · 2025

W.P.No.22658 of 2025IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 24.06.2025CORAMTHE HONOURABLE MR. JUSTICE M.SUNDAR andTHE HONOURABLE MR. JUSTICE HEMANT CHANDANGOUDAR W.P.No.22658 of 2025 and W.M.P. No.25505 of 2025Guru Chandran KPetitionervs.1.The District CollectorO/o.The District CollectorVillupuram District2.The Executive EngineerWater Resources DepartmentPublic Works DepartmentVillupuram District3.The Revenue Divisional OfficerVillupuram Revenue Division Villupuram District4.The TahsildarTaluk Office, GingeeVillupuram District5.The Inspector of PoliceSathiyamankalam Police StationGingee Taluk, Villupuram District6.P. Elumalai AchariPage Nos.1/8 https://www.mhc.tn.gov.in/judis W.P.No.22658 of 20257.M. Murugesan Achari8.V.BaraniRespondentsWrit Petition filed under Article 226 of the Constitution of India seeking a writ of mandamus directing the respondents 1 to 5 to forthwith stop the illegal construction of temples or any other structures on the Government water body/public pathway situated in S.No.123, R.Nayambadi Village, Gingee Taluk, Villupuram District based on the petitioner's representation dated 19.05.2025 and direct the respondents to immediately remove all existing encroachments/illegal constructions made on the said water body and pathway that are obstructing access to the petitioner's lands in Survey Nos.79/2,3D, 124/7, 8A, 70/6, 7 and 8 (Patta No.92).For petitionerMr. N. ElayarajaFor RR 1 to 4Mr. M.S. ArasakumarGovernment Advocate For R5Mr. S. SanthoshGovernment Advocate (Crl. Side)ORDER[made by M. SUNDAR, J.]Subject matter of captioned 'writ petition' ['WP' for the sake of brevity] is 'illegal construction of temples or any other structures on the Government water body/public pathway situate in Survey No.123, Page Nos.2/8 https://www.mhc.tn.gov.in/judis W.P.No.22658 of 2025R. Nayambadi Village, Gingee Taluk, Villupuram District' [hereinafter 'said water body/public pathway' for the sake of convenience and clarity].2.Request made by writ petitioner for removal of aforereferred alleged encroachments by way of representations dated 07.04.2025 and 19.05.2025, besides several e-mails, has not yielded results and that has necessitated captioned main WP is the submission of Mr. N. Elayaraja, learned counsel for writ petitioner.3.Issue notice to official respondents [R1 to R5]. Mr.M.S.Arasakumar, learned Additional Government Pleader, accepts notice for RR 1 to 4 and Mr. S. Santhosh, learned Government Advocate (Criminal Side) accepts notice for R5.4. Learned State counsel for RR 1 to 4 submits that survey is in the anvil and depending on the survey outcome, action for removal of encroachment (if found) will be initiated 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].Page Nos.3/8 https://www.mhc.tn.gov.in/judis W.P.No.22658 of 20255.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 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) ..... Page Nos.4/8 https://www.mhc.tn.gov.in/judis W.P.No.22658 of 2025(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.'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 co-equal Division Bench.6.The above means that private respondents (RR 6 to 8) who are alleged encroachers and / or any other 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 WP is taken up with the consent of learned counsel for writ Page Nos.5/8 https://www.mhc.tn.gov.in/judis W.P.No.22658 of 2025petitioner and learned State counsel, dispensing with notice to RR 6 to 8.7.Though obvious, it is made clear that this order does not touch upon the rights of private respondents and / or any other noticee/s under the Tanks Act. This means that all the rights and contentions of RR 6 to 8 and/or any other 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 encroachments qua said water body/public pathway.8.In the light of the narrative thus far, captioned WP is disposed of in the aforesaid manner, recording the stated position of learned State counsel for RR 1 to 4 that survey will be done within a period of two weeks from today, i.e., on or before 08.07.2025 and action if any, under the Tanks Act will be commenced as expeditiously as the business of official respondents would permit but in any event within a period of two weeks therefrom i.e., on or before 22.07.2025. Page Nos.6/8 https://www.mhc.tn.gov.in/judis W.P.No.22658 of 2025Captioned W.M.P. No.25505 of 2025 stands disposed of as closed. There shall be no order as to costs. .(M.S., J.) (H.C., J.) 24.06.2025cadIndex:Yes/NoN.C.:Yes/NoPage Nos.7/8 https://www.mhc.tn.gov.in/judis W.P.No.22658 of 2025M.SUNDAR, J.andHEMANT CHANDANGOUDAR, J.cadTo1.The District CollectorO/o.The District Collector2.The Executive EngineerWater Resources DepartmentPublic Works DepartmentVillupuram District3.The Revenue Divisional OfficerVillupuram Revenue Division Villupuram District4.The TahsildarTaluk OfficeGingeeVillupuram District5.The Inspector of PoliceSathiyamankalam Police StationGingee TalukVillupuram DistrictW.P.No.22658 of 202524.06.2025Page Nos.8/8