T.K.Shanmugam v. State of Tamil Nadu

W.P.No.3121 of 2023IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 20.06.2025CORAMTHE HONOURABLE MR.JUSTICE M.SUNDAR andTHE HONOURABLE MR.JUSTICE R.SAKTHIVELW.P.No.3121 of 2023R.SivakumarS/o.Rajavel... Petitionervs.1.The District CollectorOffice of the District Collector Perambalur District2. The District Revenue OfficerPerambalur District3. The Thasildhar Kunnam Circle Perambalur District4. The Assistant Executive EngineerDepartment of Water Resources Perambalur District... RespondentsWrit Petition filed under Article 226 of the Constitution of India seeking a writ of mandamus directing the fourth respondent to take action Page Nos.1/8 https://www.mhc.tn.gov.in/judis W.P.No.3121 of 2023based on the proceedings dated 16.02.2022 in O.Mu (A1)/1477/2022 issued by the first respondent and pass appropriate orders in accordance with law within a stipulated time fixed by this Court.For Petitioner :Mr.R.RajasekarFor Respondents :Mr.M.S.ArasakumarGovernment Advocate for R1 to R4O 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., Survey Nos.52 and 71/5, Elumur West Kunnam Circle, Perambalur District, which is a water channel' {'said water body' for the sake of convenience and brevity}.2. Request for removal of afore-referred alleged encroachment has not yielded results and that has necessitated captioned main WP is the submission of learned counsel for writ petitioner.Page Nos.2/8 https://www.mhc.tn.gov.in/judis W.P.No.3121 of 20233. Mr.R.Rajasekar, learned counsel for writ petitioner and Mr.M.S.Arasakumar, learned Government Advocate for respondents are before this Court.4. Learned State counsel 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).5.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 Page Nos.3/8 https://www.mhc.tn.gov.in/judis W.P.No.3121 of 2023upon 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 Page Nos.4/8 https://www.mhc.tn.gov.in/judis W.P.No.3121 of 2023an 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 coequal Division Bench.5. 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 Page Nos.5/8 https://www.mhc.tn.gov.in/judis W.P.No.3121 of 2023sake 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 encroachment qua said water body.6.In the light of the narrative thus far, captioned main WP is disposed of in the aforesaid manner, recording the stated position of learned State counsel that survey will be done within a period of four weeks from today, i.e., on or before 18.07.2025 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 four weeks therefrom i.e., on or before 15.08.2025. There shall be no order as to costs. (M.S.,J.)(R.S.V.,J.) 20.06.2025Index : Yes / NoNeutral Citation : Yes / NoSpeaking / Non-speakinggpaPage Nos.6/8 https://www.mhc.tn.gov.in/judis W.P.No.3121 of 2023To1.The District CollectorOffice of the District Collector Perambalur District2. The District Revenue OfficerPerambalur District3. The Thasildhar Kunnam Circle Perambalur District4. The Assistant Executive EngineerDepartment of Water Resources Perambalur DistrictPage Nos.7/8 https://www.mhc.tn.gov.in/judis W.P.No.3121 of 2023M.SUNDAR, J.,andR.SAKTHIVEL, J.,gpaW.P.No.3121 of 202320.06.2025Page Nos.8/8