Madras High Court

S. Saravanan vs State Of Tamilnadu on 1 November, 2021

W.P.No.23478 of 2021

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 01.11.2021

:CORAM:

THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
AND
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
W.P.No.23478 of 2021

S. Saravanan .... Petitioner

.. Vs..

1. State of Tamilnadu,
Rep. by its Secretary to Government,
Public Works Department,
Fort St.George,
Chennai – 600 009.

2. The District Collector,
Vellore District,
Vellore – 632 009.

3. The Commissioner,
Vellore Municipality,
Vellore – 632 004.

4. The Tahsildar
Vellore Taluk & District – 632 001.

5. The Assistant Executive Engineer,
Water Resource Organization,
Public Works Department,
Vellore District.

6. Ramani

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W.P.No.23478 of 2021

7. The Chairman,
Tamil Nadu Generation and Distribution Corporation Ltd.,
144 Anna Salai, Chennai 600 002

(R7 suo motu impleaded as per order of this Court
dated 01.11.2021) .... Respondents

Prayer: Writ Petition filed under Article 226 of the Constitution of India, praying for
issuance of a Writ of Mandamus directing the Respondents to take immediate and
appropriate action to remove all the encroachments made in Survey No.73/15 to an
extent of 0.42 ½ cents which is waterway canal in Palavansathu Village, Vellore
District, based on the Petitioner's representation dated 27.02.2021, 30.11.2020,
05.01.2021 within a time frame fixed by this Court and directing the Respondents to
periodically maintain the waterway canal by extending its width and depth to prevent
inundation of the residential area around the waterway canal.

For Petitioner : Ms.R.Gobika

For Respondents : Mr.K.V.Sajeevkumar
(for R1 to R5)
Government counsel

ORDER

(Order of this Court was made by S. VAIDYANATHAN.,J)

This Writ Petition has been filed seeking direction to the Respondents to take

immediate and appropriate action to remove all the encroachments made in Survey

No.73/15 to an extent of 0.42 ½ cents which is waterway canal in Palavansathu Village,

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W.P.No.23478 of 2021

Vellore District, based on the Petitioner representation dated 27.02.2021, 30.11.2020,

05.01.2021 within a time frame fixed this Hon'ble Court and directing the Respondents

to periodically maintain the waterway canal by extending its width and depth to prevent

inundation of the residential area around the waterway canal.

2. Mr.K.V.Sajeevkumar, learned Government counsel takes notice for

Respondents. Since no adverse orders is going to be passed in respect of the sixth

respondent, notice with respect to the sixth respondent is dispensed with.

3. By consent, this Writ Petition is taken up and disposed of at the stage of

admission itself.

4. The case of the Petitioner is that in his area there is a lake called “Palavansathu

Periya Eri” in an extent of Hec.10.26 Acre or25.34 Acre. From the year of 2001, some

portions of the lake have been illegally encroached upon by the sixth Respondent who

was also constructed a big wall around the encroachment. Therefore, the Petitioner

along with some villagers made an application dated 22.08.2019 to the PIO, office of

the 4th Respondent under RTI act and the Petitioner received a reply dated 19.09.2019

stating that the said lake is classified as Mandaiveli of an extent of 1724 Sq.mts. and

also that patta has been issued to 13 persons in the Survey number 148. Hence, the

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W.P.No.23478 of 2021

Petitioner along with some villagers made a representation dated 27.10.2020 to the 3 rd

Respondent to remove the encroachments made by the 6th Respondent and to prevent

the village from inundation. Thereafter, due to the Nivar cyclone in November 2020,

surplus water got to be released from the nearby lakes and overflowed into the existing

residential area, which devastated many houses nearby the lake. Hence, the Petitioner

made another representation dated 05.01.2021 to the 3rd Respondent. Since, no action

has been taken till date, the petitioner has filed the present Writ Petition seeking for the

aforesaid relief.

5. Taking note of the facts and circumstances of the case and also the submissions

made, the Fourth Respondent/Tahsildar is directed to ascertain and take decision on

the alleged encroachment, by conducting survey, by using the drone technology, after

affording opportunity of hearing to the petitioner, sixth respondent and other persons

concerned, within a period of three months from the date of receipt of a copy of this

order. This Court makes it clear that if any encroachment is found to be made by the

Sixth Respondent, the electricity connection with respect to the encroacher shall be

disconnected in the light of the Judgment of the Division Bench in "P.Selvarajan Vs.

The Commissioner of Municipal Administration, Chennai and others" (W.P.No.

21639 of 2017) decided on 13.02.2018 , following the order of the Supreme Court dated

05.01.2018, passed in Special Leave to Appeal (C) No. 33863 of 2017, wherein the

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W.P.No.23478 of 2021

Apex Court observed as follows:

“3. Learned counsel appearing for the fourth respondent submitted that the fourth respondent has made an application for regularisation and that during the pendency of the proceedings, this Court, by order dated 11.09.2017, directed disconnection of electricity in respect of basement, second and third floors of the fourth respondent's premises, against which, the matter was taken up to the Supreme Court. The Supreme Court, in Petition for Special Leave to Appeal (C).No.26509 of 2017, by order dated 13.10.2017, did not interfere with the said order of this Court dated 11.09.2017, and permitted the fourth respondent herein to move the High Court. During the pendency of this Writ Petition, the fourth respondent herein has filed W.M.P.No.30495 of 2017 seeking direction to the TANGEDCO to restore the electricity connection to the building of the fourth respondent. This Court, by order dated 07.11.2017, rejected the restoration of electricity supply. Thereafter, once again the matter was taken up to the Supreme Court by the fourth respondent, and the Supreme Court, by order dated 05.01.2018 in Petition for Special Leave to Appeal (C) No.33863 of 2017, has dismissed the Special Leave Petition, by observing as follows:

"Heard learned counsel for the petitioner and perused the impugned order dated 07.11.2017 passed in WMP.No.30495/2017 passed by the Madras High Court.

We are not inclined to interfere in the impugned order and accordingly, the Special Leave Petition is dismissed.

However, we direct the authority concerned before whom the application for regularisation under the DTCP Building Regularisation Scheme 2017 is pending to decide the matter in accordance with law within two months.

Pending application stands disposed of."

Thus, in the said order dated 05.01.2018, the Supreme Court directed that the authority concerned before whom the application for regularisation under the DTCP Building Regularisation Scheme, 2017, is pending, to decide the matter in accordance with law within two months.

4. In this case, it is seen that there is no proper set-back left by the fourth respondent while constructing the building. There is also no proper ventilation as required under Rule 14(2) of the Tamil Nadu District https://www.mhc.tn.gov.in/judis

W.P.No.23478 of 2021

Municipalities Building Rules, 1972. The fourth respondent has combined both the buildings as single unit without the permission from the Attur Municipality.

5. It is not in dispute that the building has been constructed by the fourth respondent in violation of the plan. The Supreme Court has repeatedly held that the building has got to be constructed without any violation of the plan. In view of the same, we are of the view that the violated portion(s) will have to be demolished, as it is not in accordance with the sanctioned plan."

6. The First Bench of this Court (S.K.Kaul,C.J., and R.Mahadevan,J.) in

Contempt Petition No.1769 of 2015 and Contempt Petition No.2166 of 2015 (Suo

motu), took up a matter pertaining to demolition of the violated portions of a

building and insisted that the unauthorised constructions are decimated. Relevant

portion of the said order reads thus:

''4.We have also perused the report of the Commissioner, who is present in Court. We have impressed upon him the importance of ensuring that there is atleast no continuing unauthorised construction by issuing stop work notices immediately when such unauthorised construction is detected rather than waiting for comparison of the plans. We have also emphasised the importance of:

(a) Checking the buildings from the basement, ground floor onwards, so that the set backs are adhered to;

(b) Ensure that the on-going construction complies with the norms;

(c)The delinquent officers are brought to book not by mere censure, stoppage of increment, but by more severe consequences like compulsory retirement and dismissal from service. We say so, as despite, mammoth amount of unauthorised construction, we are informed that not a single person has suffered the punishment of dismissal from service or even compulsory retirement atleast for the last five years.

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W.P.No.23478 of 2021

(d) Not to let any unnecessary interference with his work by the persons, who have nothing to do with his job and that he should be able to do his task without fear or favour, for which necessary Court protection is available.''

7. For carrying out the aforesaid exercise, this Court suo motu impleads 'The

Chairman, Tamil Nadu Generation and Distribution Corporation Ltd., 144 Anna

Salai, Chennai 600 002' as 7th Respondent in the Writ Petition.

8. The 7th Respondent is directed to intimate the concerned jurisdictional

authorities of the TANGEDCO, to disconnect the electricity connection of the 6th

respondent, if any encroachment is found to be made.

9. With the above observations and directions, this Writ Petition is disposed of.

No costs.

[S.V.N,J.,] [R.V,J.,] 01.11.2021 Index: Yes / No Speaking order /Non speaking order arr/shk

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W.P.No.23478 of 2021

1. State of Tamilnadu, Rep. by its Secretary to Government, Public Works Department, Fort St.George, Chennai – 600 009.