Madras High Court
J.Gunasundari vs The District Collector on 18 January, 2021
WP.Nos.826, 827, 829 & 830 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 18.01.2021
CORAM
THE HONOURABLE MR. JUSTICE M.SATHYANARAYANAN
AND
THE HONOURABLE MR. JUSTICE A.A.NAKKIRAN
WP.Nos.826, 827, 829 & 830 of 2021
and W.M.P.Nos.892, 897, 895 & 893 /2021
J.Gunasundari .. Petitioner in W.P.No.826 of 2021
G.Karthikeyan .. Petitioner in W.P.No.827 of 2021
S.Pokkisham .. Petitioner in W.P.No.829 of 2021
K.Sathish .. Petitioner in W.P.No.830 of 2021
Versus
1.The District Collector,
Chennai District,
Singaravelar Maligai,
Chennai 600 001.
2.The Executive Engineer,
PWD Water Resources Department,
Kosathalai River, Thiruvallur District.
3.The Tahsildar,
Ambattur Taluk, Chennai 600 053.
.. Respondents in all W.Ps
https://www.mhc.tn.gov.in/judis/
WP.Nos.826, 827, 829 & 830 of 2021
Common Prayer:- Writ petition filed under Article 226 of the
Constitution of India praying for issuance of a Writ of Mandamus
directing the 2nd respondent to remove the Notice Board and the
boundary stone put up at the petitioner's land in plot no.1 comprised in
S.F.No. 809 of Korratur Village, Ambattur Taluk, as the same is contrary
to the procedure under the Tamil Nadu Protection of Tanks and Eviction
of Encroachment Act, 2007 as held in T.S.Senthil Kumar Vs. the State of
Tamil Nadu reported in 2010 (3) MLJ 771.
For Petitioners in all W.Ps: Mr.K.Sakthivel
For R1 & R3 in all W.Ps : Mr.R.Vijayakumar
Additional Government Pleader
For R2 in all W.Ps : Mr.A.Aruldoss
COMMON ORDER
[Order of the Court was made by M.SATHYANARAYANAN, J. through
video conferencing]
By consent, all the Writ Petitions are taken up for final disposal
and disposed of by this common order.
W.P.No.826/2021:
The petitioner would claim that her father was in occupation and
enjoyment of 0.03 cent of land in plot No.5, comprised in S.F.No.809 of
Korattur Village for more than 45 years prior to 1989 and she is doing
cultivation in the said land and on 06.02.1991, the Collector of
Chengalpet, has issued a direction to give patta to her father on the basis
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WP.Nos.826, 827, 829 & 830 of 2021
of the Government notification issued in the year 1989 and the petitioner
was assigned with the said land, vide proceedings of the Tahsildar
(Special), Saidapet dated 17.10.1991.
W.P.No.827 of 2020:
The petitioner would claim that his father was in occupation and
enjoyment of 0.03 cent of land in plot No.3, comprised in S.F.No.809 of
Korattur Village for more than 45 years prior to 1989 and he is doing
cultivation in the said land and on 06.02.1991, the Collector of
Chengalpet, has issued a direction to give patta to his father on the basis
of the Government notification issued in the year 1989 and the petitioner
was assigned with the said land, vide proceedings of the Tahsildar
(Special), Saidapet dated 17.10.1991.
W.P.No.829 of 2020:
The petitioner would claim that his father was in occupation and
enjoyment of 0.03 cent of land in plot No.2, comprised in S.F.No.809 of
Korattur Village for more than 45 years prior to 1989 and he is doing
cultivation in the said land and on 06.02.1991, the Collector of
Chengalpet, has issued a direction to give patta to his father on the basis
https://www.mhc.tn.gov.in/judis/
WP.Nos.826, 827, 829 & 830 of 2021
of the Government notification issued in the year 1989 and the petitioner
was assigned with the said land, vide proceedings of the Tahsildar
(Special), Saidapet dated 17.10.1991.
W.P.No.830 of 2021:
The petitioner would claim that his father was in occupation and
enjoyment of 0.03 cent of land in plot No.1, comprised in S.F.No.9 of
Korattur Village for more than 45 years prior to 1989 and he is doing
cultivation in the said land and on 06.02.1991, the Collector of
Chengalpet, has issued a direction to give patta to his father on the basis
of the Government notification issued in the year 1989 and the petitioner
was assigned with the said land, vide proceedings of the Tahsildar
(Special), Saidapet dated 17.10.1991.
2. According to the learned counsel appearing for the petitioners,
apart from the said assignment of lands, no encroachment whatsoever has
been caused and no superstructure has also been put up and the said
submission, on instructions, is placed on record. It is also pointed out that
the superstructure has been put up after obtaining Planning Permission
and the construction has also been done strictly in accordance with the
Sanctioned Plan.
https://www.mhc.tn.gov.in/judis/
WP.Nos.826, 827, 829 & 830 of 2021
3. The primordial submission made by the learned counsel
appearing for the petitioners by drawing attention of this Court to the
judgment reported in 2010 (3) MLJ 771 (T.S.Senthilkumar Vs. State of
Tamil Nadu), is that without putting the petitioners on notice, a Notice
Board has been put up, as if the land in occupation of the petitioners
belongs to the Public Works Department, Water Resource Department
and in this regard, the petitioners had also submitted individual
representations and it may be directed to be considered and till such time,
the 2nd respondent may defer further proceedings.
4. This Court heard the submission of Mr.R.Vijayakumar, learned
Additional Government Pleader appearing for the respondents 1 and 3
and Mr.A.Aruldoss, learned standing counsel appearing for the 2nd
respondent also and they would submit that due process of law would be
followed for removal of encroachment.
5. This Court has carefully considered the rival submissions and
also perused the materials placed before it.
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WP.Nos.826, 827, 829 & 830 of 2021
6. A Division Bench of this Court in the decision reported in 2010
(3) MLJ 771 (T.S.Senthil Kumar Vs. Government of Tamil Nadu rep.
By its Secretary, Public Works Department, Chennai-9 and others), has
considered the validity of some of the provisions of the Tamil Nadu
Protection of Tanks and Eviction of Encroachment Act, 2007, and given
certain directions and it is relevant to extract paragraph no.20 of the said
judgment:
''20.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 cited supra Mysore vs. J.V.
Bhat - 1975 (2) S.C.R. 407 and (ii)The Scheduled Caste &
Weaker Section Welfare Association vs. State of Karnataka,
- 1991 (1) U.J. (S.C.) 628 = AIR 1991 SC 1117 = 1991 (2)
SCC 604., 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)The State shall scrupulously follow the provisions
of the Act. It shall also ensure that all the District
Collectors and other authorities, who are concerned with
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WP.Nos.826, 827, 829 & 830 of 2021
the observance of the provisions of the Act, strictly follow
the letter, dated 10.10.2007.
(b)The District Collectors, while creating adequate
awareness, may also enlist the help of Self Help Groups to
disseminate the message that protection of water resources
will actually promote the welfare of the villages and
therefore it is in the interest of every citizen to make sure
that he is not encroaching on a tank and to clear tanks and
water bodies which are filled with garbage and to avoid
dumping of garbage will automatically enhance and
improve the public health of the community.
(c)As already stated, the State will ensure that
alienation of tank poramboke lands, citing public interest,
shall not be made under Section 12 of the Act. The meaning
and weight of the words "public interest" shall be implicitly
borne in mind.
(d)The State holds all the water bodies in public trust
for the welfare of this generation and all the succeeding
generations and, therefore, protecting water bodies must be
given as much weightage, if not more as allowing house-
sites or other buildings to come up on such tanks or tank
poromboke lands, and water charged lands.
(e)The State shall also bear in mind the provisions of
this Act and the objects and reasons of this Act while
issuing patta to persons who claim to have resided in the
same place for a number of years and if necessary modify
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WP.Nos.826, 827, 829 & 830 of 2021
the relevant Government Orders to make sure that the
implementation of these G.Os. are not in violation of this
very valuable and important Act, namely Tamil Nadu
Protection of Tanks and Eviction of Encroachment Act,
2007.
(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
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WP.Nos.826, 827, 829 & 830 of 2021
the encroachment. ''
7. This Court, taking into consideration the above facts and
circumstances and without going into the merits of the claim projected by
the petitioners, either in their representations or in these Writ Petitions,
directs the 2nd respondent to consider and dispose of the petitioners'
representation dated 09.12.2020, on merits and in accordance with law,
and pass appropriate orders within a period of six weeks from the date of
receipt of a copy of this order / uploading of the order in the website. It
is made clear that if any superstructures put up by the petitioners on the
land in question are in deviation of the Sanctioned Plan or without
Planning Permission, necessary steps should also be taken in accordance
with law.
8.These Writ Petitions are disposed of with the above
observations. No costs. Consequently connected miscellaneous petitions
are closed.
[M.S.N.,J] [A.A.N.,J.]
18.01.2021
sk
Internet:Yes /No
Index: Yes/ No
https://www.mhc.tn.gov.in/judis/
WP.Nos.826, 827, 829 & 830 of 2021
M.SATHYANARAYANAN, J.,
AND
A.A.NAKKIRAN, J.,
sk
To
1.The District Collector,
Chennai District,
Singaravelar Maligai,
Chennai 600 001.
2.The Executive Engineer,
PWD Water Resources Department,
Kosathalai River, Thiruvallur District.
3.The Tahsildar,
Ambattur Taluk, Chennai 600 053.
WP.Nos.826, 827, 829 & 830 of 2021
18.01.2021
https://www.mhc.tn.gov.in/judis/
