Madras High Court
B.Thangaraj vs The Secretary on 20 November, 2021
W.P.Nos.13853, 13855 and 14179 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 07.07.2022
DELIVERED ON : 19.07.2022
CORAM :
THE HON'BLE MR.MUNISHWAR NATH BHANDARI, CHIEF JUSTICE
AND
THE HON'BLE MRS.JUSTICE N.MALA
W.P.Nos.13853, 13855 and 14179 of 2022
B.Thangaraj .. Petitioner in
W.P.No.13853/2022
R.Reethamma .. Petitioner in
W.P.No.13855/2022
C.Jacklin Mary Roseline .. Petitioner in
W.P.No.14179/2022
Vs
1.The Secretary,
Public Works Department,
Water Resource Department,
Government of Tamilnadu,
Secretariat,
Chennai-600 009.
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W.P.Nos.13853, 13855 and 14179 of 2022
2.The Assistant Engineer,
Public Works Department,
Water Resource Department,
Irrigation Section,
Padappai-602 301.
3.The Director,
Directorate of Survey and Land Records,
Survey House, Chepauk,
Chennai - 600 005.
4.The Assistant Director of Survey and Land Reforms,
District Survey Office,
Collectorate Campus,
Chengalpet.
5.The Tashildar,
Pallavaram Taluk,
Chrompet,
Chennai-600 044.
6.The Inspector of Police,
S-12, Chitlapakkam Police Station,
2nd Main Road, Chitlapakkam,
Chennai-600 064. .. Respondents
in all WPs
Prayer : W.P.Nos.13853 and 13855 of 2022 filed under Article 226
of the Constitution of India praying for a writ of certiorarified
mandamus calling for the records of the second respondent in respect
of his notice dated 20.11.2021 issued to the petitioners in Form-III,
under rule 6 sub-rule (1) of the Tamilnadu Protection of Tanks and
Eviction of Encroachment Rules, 2007 relating to property comprised
in Survey Number NIL, T.S.Number Ward-D, Block-50, T.S.No.117,
Zamin Pallavaram, Pallavaram, Chengalpattu District of constructed
house admeasuring 80 sq.m., to quash the same and consequently
forebear the respondents from interfering with the petitioners
peaceful possession and enjoyment of subject property referred
above.
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W.P.Nos.13853, 13855 and 14179 of 2022
W.P.No.14179 of 2022 filed under Article 226 of the Constitution of
India praying for a writ of certiorarified mandamus calling for the
records of the second respondent in respect of his notice dated
20.11.2021 issued to the petitioner in Form-III, under rule 6 sub-rule
(1) of the Tamilnadu Protection of Tanks and Eviction of
Encroachment Rules, 2007 relating to property comprised in Survey
Number NIL, T.S.Number 58, Ward-D, Block-53, Zamin Pallavaram,
Pallavaram, Chengalpattu District of constructed house admeasuring
90 sq.m., to quash the same and consequently forebear the
respondents from interfering with the petitioners peaceful possession
and enjoyment of his subject property referred above.
For the Petitioners : Mr.P.Karl Marx
in all WPs
For the Respondents : Mr.J.Ravindran
in all WPs Addl. Advocate General
assisted by
Mr.P.Muthukumar
State Government Pleader
Mr.A.Selvendran
Spl. Government Pleader
COMMON ORDER
THE CHIEF JUSTICE
By these writ petitions a challenge is made to the notices
dated 20.11.2021 issued in Form-III under sub-rule (1) of Rule 6 of
the Tamil Nadu Protection of Tanks and Eviction of Encroachment
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W.P.Nos.13853, 13855 and 14179 of 2022
Rules, 2007 [for brevity, "the Rules of 2007"].
2. The challenge to the notices has been made mainly on the
ground that the lands in question belong to the petitioners and they
are having valid title in proof thereof, yet ignoring the aforesaid the
notices in Form III were issued. The petitioners sent their
replies/objections to the notices. However, no order on it has been
passed. Since the respondents were pursuing action to remove the
constructions, the petitioners were left with no option but to file the
present writ petitions.
3. Learned counsel for the petitioners has given reference of a
Division Bench judgment of this court in the case of T.S.Senthil
Kumar v. The Government of Tamil Nadu and others, (2010)
3 MLJ 771, and also a Larger Bench judgment in the case of
T.K.Shanmugam v. State of Tamil Nadu, (2015) 8 MLJ 1 (FB).
In the case of T.S.Senthil Kumar (supra), the constitutional
validity of certain provisions of the Tamil Nadu Protection of Tanks
and Eviction of Encroachment Act, 2007 [for short, "the Act of
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W.P.Nos.13853, 13855 and 14179 of 2022
2007"] and Rules of 2007 was challenged. The provisions were held
to be constitutionally valid, but to ensure observance of the
principles of natural justice, a direction was given to the effect that
when the officer of the Public Works Department publishes the
notice in Form-II in the notice boards of the offices of the Village
Administrative Officer, Village Panchayat Office and the Water
Resources Organization, the 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 may be issued. It was further directed that 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. The authorities were
directed to consider the objections and pass appropriate orders in
accordance with law. However, in the instant case, though the
petitioners sent their replies/objections, no order has yet been
passed. Thus, the prayer is made to either quash the notice in Form-
III issued under Rule 6(1) of the Rules of 2007 or to direct the
respondents to consider the replies/objections given by them and
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W.P.Nos.13853, 13855 and 14179 of 2022
pass appropriate orders. It is in the background that the petitioners
have placed on record certain documents to show their title and it is
not such a case where the petitioners failed to show their right to
possess the land.
4. Learned Additional Advocate General has contested the writ
petitions and submits that as per the judgment in the case of
T.S.Senthil Kumar (supra), the encroacher was required to give
reply/objection to the notice in Form-III within two weeks, but, in
the instant case, it was given after lapse of five/six months and,
therefore, a direction for consideration of the reply/objection may
not be given, rather finding the petitioners to have encroached the
land of water tank, liberty be given to the respondents to remove
the encroachment.
5. We have considered the rival submissions of the parties and
perused the records.
6. The issue in reference to the notice in Form-III under Rule
6(1) of the Rules of 2007, pursuant to power under Section 7 of the
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W.P.Nos.13853, 13855 and 14179 of 2022
Act of 2007, was the subject-matter of the judgment in the case of
T.S.Senthil Kumar (supra), wherein the constitutional validity of
the provisions was challenged. The Division Bench did not find the
provisions to be unconstitutional so as to strike down the same, but
to provide for observance of the principles of natural justice, certain
directions were given. For ready reference, paragraph (20) of the
said judgment is quoted hereunder:
"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 v. J.V. Bhat, 1975 (2) S.C.R. 407 and (ii) The
Scheduled Caste & Weaker Section Welfare Association
v. State of Karnataka, AIR 1991 SC 1117, 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
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W.P.Nos.13853, 13855 and 14179 of 2022
all the District Collectors and other authorities,
who are concerned with 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 poramboke
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
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necessary modify 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 the
encroachment."
[emphasis supplied]
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W.P.Nos.13853, 13855 and 14179 of 2022
7. The judgment of the Division Bench in the case of
T.S.Senthil Kumar (supra) was considered by the Full Bench in the
case of T.K.Shanmugam (supra) and the directions given by the
Division Bench were found to be just and reasonable in the facts
and circumstances of the case.
8. In the light of the aforesaid, we find that after the notice in
Form-III, the petitioners should have given their replies/objections
within a period of two weeks, as directed by the Division Bench of
this Court in the case of T.S.Senthil Kumar (supra). However, the
fact remains that no action to remove the encroachment was taken
by the respondents immediately or till the filing of the writ petitions
in the month of May, 2022 and, in the meantime, the petitioners
sent their replies/objections.
9. We, therefore, dispose of these writ petitions with the
following directions:
(i) To fortify the stand taken by the petitioners in their
replies/objections, the petitioners are given two weeks'
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W.P.Nos.13853, 13855 and 14179 of 2022
time to submit documents to prove their right of
possession to the respondent authorities;
(ii)On receipt of the such documents, if any, within the
stipulated time, the respondent authorities shall pass
orders on the replies/objections within two weeks
thereafter and proceed further as per the provisions of
the law; and
(iii)Till the aforesaid exercise is undertaken, the
respondent authorities will not give effect to the notice
in Form-III issued under Rule 6(1) of the Rules of
2007.
There will be no order as to costs. Consequently,
W.M.P.Nos.13125, 13127, 13126, 13128, 13423 and 13424 of 2022
are closed.
(M.N.B., CJ.) (N.M., J.)
19.07.2022
Index : Yes
sasi
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W.P.Nos.13853, 13855 and 14179 of 2022
To:
1.The Secretary,
Public Works Department,
Water Resource Department,
Government of Tamilnadu,
Secretariat,
Chennai-600 009.
2.The Assistant Engineer,
Public Works Department,
Water Resource Department,
Irrigation Section,
Padappai-602 301.
3.The Director,
Directorate of Survey and Land Records,
Survey House, Chepauk,
Chennai - 600 005.
4.The Assistant Director of Survey and Land Reforms,
District Survey Office,
Collectorate Campus,
Chengalpet.
5.The Tashildar,
Pallavaram Taluk,
Chrompet,
Chennai-600 044.
6.The Inspector of Police,
S-12, Chitlapakkam Police Station,
2nd Main Road, Chitlapakkam,
Chennai-600 064.
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W.P.Nos.13853, 13855 and 14179 of 2022
THE HON'BLE CHIEF JUSTICE
AND
N.MALA,J.
(sasi)
W.P.Nos.13853, 13855 and 14179 of 2022
19.07.2022
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