T.K.Shanmugam v. State of Tamil Nadu

W.P.No.35590 of 2024IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 02.12.2024CORAMTHE HONOURABLE MR.JUSTICE M.SUNDAR andTHE HONOURABLE MR.JUSTICE K.RAJASEKAR W.P.No.35590 of 2024A.MuthuS/o.Aarumugam... PetitionerVs.1.The District CollectorO/o. of the District CollectorKancheepuram - 631 501Kancheepuram District.2.The TahsildarUthiramerur TalukUthiramerur 603 406.3.The Block Development OfficerUthiramerur 603 406Kancheepuram District.4.The Divisional EngineerO/o. Divisional Engineer Highway DepartmentKancheepuram 631 501.Kancheepuram District.Page Nos.1/9 https://www.mhc.tn.gov.in/judis W.P.No.35590 of 20245.The Assistant Line Engineer Construction and MaintenanceHighway DepartmentUthiramerur 603 406Kancheepuram District.6.The Assistant Engineer Construction and MaintenanceUthiramerur 603 406Kancheepuram District.7.TamilS/o.Mohan8.NarayananS/o.Muniyappa Naidu9.DheenadhayalanS/o.Muniyappa Naidu10.ShreeramuluS/o.Lingappa Naidu ... RespondentsPrayer :Writ Petition filed under Article 226 of The Constitution of India praying to issue a Writ of Mandamus to direct the respondents 1 to 6 to take necessary steps to remove the encroachments made by the respondents 7 to 10 made on the Government Poromboke land in Survey Numbers 528 and 529 of Karuvaepampoondi Village, Uthiramerur Taluk, Kancheepuram District which belongs to the Highways Department and Canal by considering the petitioner's representation dated 19.09.2024.Page Nos.2/9 https://www.mhc.tn.gov.in/judis W.P.No.35590 of 2024For Petitioner : Mr.V.R.AppaswameeFor Respondents:Mr.V.RaviSpecial Government Pleaderfor R1 to R6O R D E R[Order of the Court was made by K.RAJASEKAR, J.,]This writ petition has been filed seeking a mandamus to direct the respondents 1 to 6 to remove the encroachments made by the respondents 7 to 10 on the Government Poromboke land in Survey Numbers 528 and 529 of Karuvaepampoondi Village, Uthiramerur Taluk, Kancheepuram District ('said land' hereafter).2. According to the writ petitioner, lands in Survey Numbers 528 and 529, partly belong to Highways Department and a lake is located in portion of above survey numbers, and due to encroachment, width of road is reduced and causes flood.3. Issue notice to official respondents i.e., R1 to R6.Page Nos.3/9 https://www.mhc.tn.gov.in/judis W.P.No.35590 of 20244. Mr.V.Ravi, learned Special Government Pleader accepts notice for R1 to R6.5. Mr.V.Ravi, learned State Counsel submits that the writ petitioner is also one of the encroachers in a portion of the said land and that a survey will be conducted and appropriate action will be taken on the alleged encroachers as per law.6. In the light of the limited scope of captioned WP, main WP was taken up in the Admission Board with the consent of both sides, by preserving the rights of private respondents 7 to 10.7. In the light of the narrative thus far, the official respondents shall conduct a survey and if there is an encroachment (post survey), appropriate authority shall initiate action either 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} or Page Nos.4/9 https://www.mhc.tn.gov.in/judis W.P.No.35590 of 2024under 'the Tamil Nadu Land Encroachment Act, 1905 (Tamil Nadu Act III of 1905)' {hereinafter 'said 1905 Act' for the sake of brevity} or under Section 28(2)(ii) of 'the Tamil Nadu Highways Act, 2001' {hereinafter 'said Act' for the sake of brevity, convenience and clarity}.8. If the action is under Tanks Act, the respondents 1 to 6 is directed to follow the procedure laid down by Hon'ble Full Bench in T.K.Shanmugam case {T.K.Shanmugam Vs. State of Tamil Nadu [2015 (5) LW 397]} more particularly clauses (i) to (iii) of sub-paragraph (f) of paragraph No.15 will be followed 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 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 Page Nos.5/9 https://www.mhc.tn.gov.in/judis W.P.No.35590 of 2024there 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 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 Page Nos.6/9 https://www.mhc.tn.gov.in/judis W.P.No.35590 of 2024provisions of the Act, giving time to the encroachers to remove the encroachment.'9. If the proceedings is initiated under said 1905 Act, the writ petitioner and respondents 7 to 10 will be show caused under Section 7 of said 1905 Act. If the proceedings is initiated under said Act, the writ petitioner and respondents 7 to 10 will be show caused under Section 28(2)(ii) of said Act. This, in our considered view, adequately safeguards the interest of Respondents 7 to 10 and writ petitioner. We make it clear that all rights and contentions of the writ petitioner remain preserved for sending his response on being show caused {if that be so and if that is the case}. Accordingly, this Writ Petition is disposed of in the aforesaid manner. There shall be no order as to costs.(M.S.,J.)(K.R.S.,J.) 02.12.2024Index : Yes / NoNeutral Citation : Yes / NoSpeaking order / Non-speaking ordermkTo1.The District CollectorPage Nos.7/9 https://www.mhc.tn.gov.in/judis W.P.No.35590 of 2024O/o. of the District CollectorKancheepuram - 631 501Kancheepuram District.2.The TahsildarUthiramerur TalukUthiramerur 603 406.3.The Block Development OfficerUthiramerur 603 406Kancheepuram District.4.The Divisional EngineerO/o. Divisional Engineer Highway DepartmentKancheepuram 631 501.Kancheepuram District.5.The Assistant Line Engineer Construction and MaintenanceHighway DepartmentUthiramerur 603 406Kancheepuram District.6.The Assistant Engineer Construction and MaintenanceUthiramerur 603 406Kancheepuram District.Page Nos.8/9 https://www.mhc.tn.gov.in/judis W.P.No.35590 of 2024M.SUNDAR, J.,andK.RAJASEKAR, J.,mkW.P.No.35590 of 202402.12.2024Page Nos.9/9

W.P.No.35590 of 2024IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 02.12.2024CORAMTHE HONOURABLE MR.JUSTICE M.SUNDAR andTHE HONOURABLE MR.JUSTICE K.RAJASEKAR W.P.No.35590 of 2024A.MuthuS/o.Aarumugam... PetitionerVs.1.The District CollectorO/o. of the District CollectorKancheepuram - 631 501Kancheepuram District.2.The TahsildarUthiramerur TalukUthiramerur 603 406.3.The Block Development OfficerUthiramerur 603 406Kancheepuram District.4.The Divisional EngineerO/o. Divisional Engineer Highway DepartmentKancheepuram 631 501.Kancheepuram District.Page Nos.1/9 https://www.mhc.tn.gov.in/judis W.P.No.35590 of 20245.The Assistant Line Engineer Construction and MaintenanceHighway DepartmentUthiramerur 603 406Kancheepuram District.6.The Assistant Engineer Construction and MaintenanceUthiramerur 603 406Kancheepuram District.7.TamilS/o.Mohan8.NarayananS/o.Muniyappa Naidu9.DheenadhayalanS/o.Muniyappa Naidu10.ShreeramuluS/o.Lingappa Naidu ... RespondentsPrayer :Writ Petition filed under Article 226 of The Constitution of India praying to issue a Writ of Mandamus to direct the respondents 1 to 6 to take necessary steps to remove the encroachments made by the respondents 7 to 10 made on the Government Poromboke land in Survey Numbers 528 and 529 of Karuvaepampoondi Village, Uthiramerur Taluk, Kancheepuram District which belongs to the Highways Department and Canal by considering the petitioner's representation dated 19.09.2024.Page Nos.2/9 https://www.mhc.tn.gov.in/judis W.P.No.35590 of 2024For Petitioner : Mr.V.R.AppaswameeFor Respondents:Mr.V.RaviSpecial Government Pleaderfor R1 to R6O R D E R[Order of the Court was made by K.RAJASEKAR, J.,]This writ petition has been filed seeking a mandamus to direct the respondents 1 to 6 to remove the encroachments made by the respondents 7 to 10 on the Government Poromboke land in Survey Numbers 528 and 529 of Karuvaepampoondi Village, Uthiramerur Taluk, Kancheepuram District ('said land' hereafter).2. According to the writ petitioner, lands in Survey Numbers 528 and 529, partly belong to Highways Department and a lake is located in portion of above survey numbers, and due to encroachment, width of road is reduced and causes flood.3. Issue notice to official respondents i.e., R1 to R6.Page Nos.3/9 https://www.mhc.tn.gov.in/judis W.P.No.35590 of 20244. Mr.V.Ravi, learned Special Government Pleader accepts notice for R1 to R6.5. Mr.V.Ravi, learned State Counsel submits that the writ petitioner is also one of the encroachers in a portion of the said land and that a survey will be conducted and appropriate action will be taken on the alleged encroachers as per law.6. In the light of the limited scope of captioned WP, main WP was taken up in the Admission Board with the consent of both sides, by preserving the rights of private respondents 7 to 10.7. In the light of the narrative thus far, the official respondents shall conduct a survey and if there is an encroachment (post survey), appropriate authority shall initiate action either 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} or Page Nos.4/9 https://www.mhc.tn.gov.in/judis W.P.No.35590 of 2024under 'the Tamil Nadu Land Encroachment Act, 1905 (Tamil Nadu Act III of 1905)' {hereinafter 'said 1905 Act' for the sake of brevity} or under Section 28(2)(ii) of 'the Tamil Nadu Highways Act, 2001' {hereinafter 'said Act' for the sake of brevity, convenience and clarity}.8. If the action is under Tanks Act, the respondents 1 to 6 is directed to follow the procedure laid down by Hon'ble Full Bench in T.K.Shanmugam case {T.K.Shanmugam Vs. State of Tamil Nadu [2015 (5) LW 397]} more particularly clauses (i) to (iii) of sub-paragraph (f) of paragraph No.15 will be followed 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 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 Page Nos.5/9 https://www.mhc.tn.gov.in/judis W.P.No.35590 of 2024there 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 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 Page Nos.6/9 https://www.mhc.tn.gov.in/judis W.P.No.35590 of 2024provisions of the Act, giving time to the encroachers to remove the encroachment.'9. If the proceedings is initiated under said 1905 Act, the writ petitioner and respondents 7 to 10 will be show caused under Section 7 of said 1905 Act. If the proceedings is initiated under said Act, the writ petitioner and respondents 7 to 10 will be show caused under Section 28(2)(ii) of said Act. This, in our considered view, adequately safeguards the interest of Respondents 7 to 10 and writ petitioner. We make it clear that all rights and contentions of the writ petitioner remain preserved for sending his response on being show caused {if that be so and if that is the case}. Accordingly, this Writ Petition is disposed of in the aforesaid manner. There shall be no order as to costs.(M.S.,J.)(K.R.S.,J.) 02.12.2024Index : Yes / NoNeutral Citation : Yes / NoSpeaking order / Non-speaking ordermkTo1.The District CollectorPage Nos.7/9 https://www.mhc.tn.gov.in/judis W.P.No.35590 of 2024O/o. of the District CollectorKancheepuram - 631 501Kancheepuram District.2.The TahsildarUthiramerur TalukUthiramerur 603 406.3.The Block Development OfficerUthiramerur 603 406Kancheepuram District.4.The Divisional EngineerO/o. Divisional Engineer Highway DepartmentKancheepuram 631 501.Kancheepuram District.5.The Assistant Line Engineer Construction and MaintenanceHighway DepartmentUthiramerur 603 406Kancheepuram District.6.The Assistant Engineer Construction and MaintenanceUthiramerur 603 406Kancheepuram District.Page Nos.8/9 https://www.mhc.tn.gov.in/judis W.P.No.35590 of 2024M.SUNDAR, J.,andK.RAJASEKAR, J.,mkW.P.No.35590 of 202402.12.2024Page Nos.9/9