High Court · 2025

W.P.No.31018 of 2022IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 29.04.2025CORAMTHE HONOURABLE MR.JUSTICE M.SUNDAR andTHE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADIW.P.No.31018 of 2022P.SelvamS/o.Pachiayappan... Petitioner vs.1. The District Collector Collectorate Dharmapuri District2. The District Revenue Officer Dharmapuri District Dharmapuri3. The Revenue Divisional Officer Harur Dharmapuri District4. The Tahsildar Harur Taluk Dharmapuri District5. The Superintending Engineer Public Works Department Dharmapuri DistrictPage Nos.1/12 https://www.mhc.tn.gov.in/judis W.P.No.31018 of 20226. The Assistant Engineer Public Works Department Pappireddipatti Town & Taluk Dharmapuri District7. Govindhan S/o.Pachayappan8. Selvarani W/o.Vajjiram9. Sambath S/o.Raji... Respondents Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus directing Respondents 4, 5 and 6 to remove the encroachments made by the private respondents and others in canals flowing through the Survey Nos.28, 29, 30 and 31 situated at Kottayur Village, Jammanahalli Post, Pappireddipatti Taluk, Dharmapuri District based on the petitioner's representation dated 28.06.2022.For Petitioner : Mr.J.Shakul Hameedfor Mr.C.PrabakaranFor Respondents: Mr.T.K.Saravanan Additional Government Pleader for R1 to R6O R D E R[Order of the Court was made by M.SUNDAR, J.,]Subject matter of captioned 'Writ Petition' ['WP' for the sake brevity] is 'canals flowing through S.Nos.28, 29, 30 and 31 in Kottayur Village, Page Nos.2/12 https://www.mhc.tn.gov.in/judis W.P.No.31018 of 2022Jammanahalli Post, Pappireddipatti Taluk, Dharmapuri District' [hereinafter 'said water body' for the sake of convenience and clarity].2. Mr.J.Shakul Hameed, learned counsel representing Mr.C.Prabakaran, counsel on record for writ petitioner submits that private respondents R7 to R9 (Govindhan, Selvarani and Sambath) have caused encroachments qua said water body, repeated representations to official respondents for removal of encroachment have not yielded result and that has necessitated captioned WP with a mandamus prayer is learned counsel's further say. It is pointed out that captioned WP is predicated on a 'representation dated 28.06.2022' [hereinafter 'said representation' for the sake of convenience].3. A scanned reproduction of said representation as placed before us is as follows:Page Nos.3/12 https://www.mhc.tn.gov.in/judis W.P.No.31018 of 2022Page Nos.4/12 https://www.mhc.tn.gov.in/judis W.P.No.31018 of 2022Page Nos.5/12 https://www.mhc.tn.gov.in/judis W.P.No.31018 of 20224. Adverting to said representation, learned counsel for writ petitioner submits that writ petitioner, who is an Agriculturist, is affected by alleged encroachments in said water body by private respondents.5. Issue notice to official respondents.6. Mr.T.K.Saravanan, learned Additional Government Pleader accepts notice for R1 to R6. 7. Learned State counsel, on instructions, submits that survey of said water body has already been done on 15.04.2025 inter alia by R4, encroachments have been noticed and commencement of action for removal of encroachments is in the anvil.8. Learned State counsel submits that removal of encroachment proceedings will be commenced essentially by Public Works Department – Water Resource Department as the property in question is a water body. It is further pointed out that removal of encroachment action will be under 'Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007 (Tamil Nadu Act 8 of 2007)' {hereinafter 'Tanks Act' for the sake of convenience, clarity and brevity}.Page Nos.6/12 https://www.mhc.tn.gov.in/judis W.P.No.31018 of 20229.Removal of encroachment proceedings under Tanks Act necessarily means that the alleged encroachers, be it private respondents (R7 to R9) or any other encroacher, he or she should be put on notice, given an opportunity to send objections, objections should be considered and orders should be made. This is T.K.Shanmugam principle which has been laid down by a Full Bench of this Court in T.K.Shanmugam Vs. State of Tamil Nadu reported in 2015 (5) LW 397. Relevant paragraphs are 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 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 Page Nos.7/12 https://www.mhc.tn.gov.in/judis W.P.No.31018 of 2022issued 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 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.'Page Nos.8/12 https://www.mhc.tn.gov.in/judis W.P.No.31018 of 202210.The above also means that a closure can be given to the captioned WP by making an order which does not touch upon the rights of private respondents (R7 to R9). Therefore, we dispense with notice to private respondents (R7 to R9). This Court also makes it clear that all the rights and contentions of private respondents (R7 to R9) as well as any other alleged encroacher will stand protected / preserved for sending representations / responses when show-caused either under the Tanks Act or under any other appropriate Statute for removal of encroachments. 11. Learned State counsel submits that proceedings under Tanks Act will be commenced as expeditiously as the business of R5 and R6 would permit but in any event within six (6) weeks from today i.e., on or before 10.06.2025. This submission is recorded as an undertaking given to this Court by the learned State counsel.Page Nos.9/12 https://www.mhc.tn.gov.in/judis W.P.No.31018 of 2022Captioned WP disposed of recording the stated position of learned State counsel and making the aforementioned recording. There shall be no order as to costs.(M.S.,J.) (K.G.T.,J.) 29.04.2025 Index : Yes/NoSpeaking order/Non speaking orderNeutral Citation: Yes/NogpaPage Nos.10/12 https://www.mhc.tn.gov.in/judis W.P.No.31018 of 2022To1. The District Collector Collectorate Dharmapuri District2. The District Revenue Officer Dharmapuri District Dharmapuri3. The Revenue Divisional Officer Harur Dharmapuri District4. The Tahsildar Harur Taluk Dharmapuri District5. The Superintending Engineer Public Works Department Dharmapuri District6. The Assistant Engineer Public Works Department Pappireddipatti Town & Taluk Dharmapuri DistrictPage Nos.11/12 https://www.mhc.tn.gov.in/judis W.P.No.31018 of 2022M.SUNDAR, J.,andK.GOVINDARAJAN THILAKAVADI, J.,gpaW.P.No.31018 of 202229.04.2025Page Nos.12/12

W.P.No.31018 of 2022IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 29.04.2025CORAMTHE HONOURABLE MR.JUSTICE M.SUNDAR andTHE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADIW.P.No.31018 of 2022P.SelvamS/o.Pachiayappan... Petitioner vs.1. The District Collector Collectorate Dharmapuri District2. The District Revenue Officer Dharmapuri District Dharmapuri3. The Revenue Divisional Officer Harur Dharmapuri District4. The Tahsildar Harur Taluk Dharmapuri District5. The Superintending Engineer Public Works Department Dharmapuri DistrictPage Nos.1/12 https://www.mhc.tn.gov.in/judis W.P.No.31018 of 20226. The Assistant Engineer Public Works Department Pappireddipatti Town & Taluk Dharmapuri District7. Govindhan S/o.Pachayappan8. Selvarani W/o.Vajjiram9. Sambath S/o.Raji... Respondents Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus directing Respondents 4, 5 and 6 to remove the encroachments made by the private respondents and others in canals flowing through the Survey Nos.28, 29, 30 and 31 situated at Kottayur Village, Jammanahalli Post, Pappireddipatti Taluk, Dharmapuri District based on the petitioner's representation dated 28.06.2022.For Petitioner : Mr.J.Shakul Hameedfor Mr.C.PrabakaranFor Respondents: Mr.T.K.Saravanan Additional Government Pleader for R1 to R6O R D E R[Order of the Court was made by M.SUNDAR, J.,]Subject matter of captioned 'Writ Petition' ['WP' for the sake brevity] is 'canals flowing through S.Nos.28, 29, 30 and 31 in Kottayur Village, Page Nos.2/12 https://www.mhc.tn.gov.in/judis W.P.No.31018 of 2022Jammanahalli Post, Pappireddipatti Taluk, Dharmapuri District' [hereinafter 'said water body' for the sake of convenience and clarity].2. Mr.J.Shakul Hameed, learned counsel representing Mr.C.Prabakaran, counsel on record for writ petitioner submits that private respondents R7 to R9 (Govindhan, Selvarani and Sambath) have caused encroachments qua said water body, repeated representations to official respondents for removal of encroachment have not yielded result and that has necessitated captioned WP with a mandamus prayer is learned counsel's further say. It is pointed out that captioned WP is predicated on a 'representation dated 28.06.2022' [hereinafter 'said representation' for the sake of convenience].3. A scanned reproduction of said representation as placed before us is as follows:Page Nos.3/12 https://www.mhc.tn.gov.in/judis W.P.No.31018 of 2022Page Nos.4/12 https://www.mhc.tn.gov.in/judis W.P.No.31018 of 2022Page Nos.5/12 https://www.mhc.tn.gov.in/judis W.P.No.31018 of 20224. Adverting to said representation, learned counsel for writ petitioner submits that writ petitioner, who is an Agriculturist, is affected by alleged encroachments in said water body by private respondents.5. Issue notice to official respondents.6. Mr.T.K.Saravanan, learned Additional Government Pleader accepts notice for R1 to R6. 7. Learned State counsel, on instructions, submits that survey of said water body has already been done on 15.04.2025 inter alia by R4, encroachments have been noticed and commencement of action for removal of encroachments is in the anvil.8. Learned State counsel submits that removal of encroachment proceedings will be commenced essentially by Public Works Department – Water Resource Department as the property in question is a water body. It is further pointed out that removal of encroachment action will be under 'Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007 (Tamil Nadu Act 8 of 2007)' {hereinafter 'Tanks Act' for the sake of convenience, clarity and brevity}.Page Nos.6/12 https://www.mhc.tn.gov.in/judis W.P.No.31018 of 20229.Removal of encroachment proceedings under Tanks Act necessarily means that the alleged encroachers, be it private respondents (R7 to R9) or any other encroacher, he or she should be put on notice, given an opportunity to send objections, objections should be considered and orders should be made. This is T.K.Shanmugam principle which has been laid down by a Full Bench of this Court in T.K.Shanmugam Vs. State of Tamil Nadu reported in 2015 (5) LW 397. Relevant paragraphs are 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 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 Page Nos.7/12 https://www.mhc.tn.gov.in/judis W.P.No.31018 of 2022issued 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 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.'Page Nos.8/12 https://www.mhc.tn.gov.in/judis W.P.No.31018 of 202210.The above also means that a closure can be given to the captioned WP by making an order which does not touch upon the rights of private respondents (R7 to R9). Therefore, we dispense with notice to private respondents (R7 to R9). This Court also makes it clear that all the rights and contentions of private respondents (R7 to R9) as well as any other alleged encroacher will stand protected / preserved for sending representations / responses when show-caused either under the Tanks Act or under any other appropriate Statute for removal of encroachments. 11. Learned State counsel submits that proceedings under Tanks Act will be commenced as expeditiously as the business of R5 and R6 would permit but in any event within six (6) weeks from today i.e., on or before 10.06.2025. This submission is recorded as an undertaking given to this Court by the learned State counsel.Page Nos.9/12 https://www.mhc.tn.gov.in/judis W.P.No.31018 of 2022Captioned WP disposed of recording the stated position of learned State counsel and making the aforementioned recording. There shall be no order as to costs.(M.S.,J.) (K.G.T.,J.) 29.04.2025 Index : Yes/NoSpeaking order/Non speaking orderNeutral Citation: Yes/NogpaPage Nos.10/12 https://www.mhc.tn.gov.in/judis W.P.No.31018 of 2022To1. The District Collector Collectorate Dharmapuri District2. The District Revenue Officer Dharmapuri District Dharmapuri3. The Revenue Divisional Officer Harur Dharmapuri District4. The Tahsildar Harur Taluk Dharmapuri District5. The Superintending Engineer Public Works Department Dharmapuri District6. The Assistant Engineer Public Works Department Pappireddipatti Town & Taluk Dharmapuri DistrictPage Nos.11/12 https://www.mhc.tn.gov.in/judis W.P.No.31018 of 2022M.SUNDAR, J.,andK.GOVINDARAJAN THILAKAVADI, J.,gpaW.P.No.31018 of 202229.04.2025Page Nos.12/12