Madras High Court
Muniyandi vs The Assistant Engineer on 28 September, 2021
W.P.(MD)No.17541 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28.09.2021
CORAM :
THE HON'BLE MR.SANJIB BANERJEE, THE CHIEF JUSTICE
AND
The HON'BLE MR.JUSTICE M.DURAISWAMY
W.P.(MD) No.17541 of 2021
and
W.M.P(MD) No.14378 of 2021
1.Muniyandi
2.Govindarasu
3.Marimuthu
4.Palraj
5.Karuppayee
6.Sornam & Sornavalli
7.V.Surasangu .. Petitioners
Vs.
1.The Assistant Engineer,
PWD, WRO, (Irrigation),
Kalayarkoil, Sivagangai District.
2.The District Collector,
Sivagangai District,
Sivagangai. .. Respondents
PRAYER: Petition under Article 226 of the Constitution of India seeking
issuance of a writ of Certiorarified Mandamus, calling for the records
relating to the proceedings of the impugned order dated 24.08.2021 issued
Page 1 of 6
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W.P.(MD)No.17541 of 2021
under Section 6(1) of the Tamilnadu Protection of Tank and Eviction of
Encroachment Act 2007 on the file of the first respondent and quash the
same and further directing the respondents to issue the house site patta to
the petitioners.
For Petitioners :Mr.G.Prabhu Rajadurai
For Respondents :Mr.B.Saravanan,
Government Advocate
ORDER
[Order of the Court was made by The Hon'ble CHIEF JUSTICE]
The grievance of the several writ petitioners is that they have been
sought to be summarily evicted without being afforded any opportunity of
hearing.
2.Several notices have been issued in Form III under the Rules made
in pursuance of the Tamil Nadu Protection of Tanks and Eviction of
Encroachments Act, 2007. Notice in Form III is generally issued under Rule
6(1) of the Tamil Nadu Protection of Tanks and Eviction of Encroachment
Rules, 2007.
3.The said Rules of 2007 contemplate, inter alia, a survey of tanks to
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W.P.(MD)No.17541 of 2021
be conducted by the appointment of a survey officer. Action is taken on the
basis of the report of the survey officer. Rule 6(1) of the said Rules
indicates as follows:
“6.Eviction of Encroachment.- (1) If any
person has encroached upon any land of the tank, the
officer referred to in sub-rule (3) of Rule 4, shall
prepare a notice in Form III and call upon the person
concerned to remove the encroachment.”
4.Form III which is appended to the said Rules of 2007 is a summary
direction calling upon the noticee “to evict your encroachment from the said
piece and part of land within twenty one days from the date of receipt of this
notice ...”.
5.There is sufficient basis to the petitioner's grievance that no
opportunity has been afforded to the noticee to present a defence. The
petitioner says that there is a previous Division Bench judgment of this
Court that requires an opportunity of being heard to be read into the
provision so that the said provision is not arbitrary and unreasonable.
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W.P.(MD)No.17541 of 2021
6.Accordingly, the petitioners will treat the impugned notices as
show-cause notices to which the petitioners may respond with full details
within two weeks from date, whereupon the concerned official who
addressed the notices will look into the grounds urged by the petitioners to
ascertain whether any defence is made out or any right is indicated to
continue in occupation of the land which is said to have been encroached
upon. In the event any arguable defence is found, eviction of the relevant
petitioner may not be taken up. However, if the defence does not indicate
any right to the land said to have been encroached upon, eviction will
follow, but after a period of 21 days being afforded from the date of service
of the notice of eviction, till actual eviction is carried out.
7.W.P.(MD)No.17541 of 2021 is disposed of.
There will be no order as to costs. Consequently, W.M.P.(MD)
No.14378 of 2021 is closed.
(S.B., CJ.) (M.D., J.)
28.09.2021
Index : Yes/No
Internet : Yes/No
MR/RM
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W.P.(MD)No.17541 of 2021
Note: In view of the present lock
down owing to COVID-19 pandemic,
a web copy of the order may be
utilized for official purposes, but,
ensuring that the copy of the order
that is presented is the correct
copy, shall be the responsibility of
the advocate/litigant concerned.
To
1.The Assistant Engineer,
PWD, WRO, (Irrigation),
Kalayarkoil, Sivagangai District.
2.The District Collector,
Sivagangai District,
Sivagangai.
https://www.mhc.tn.gov.in/judis/
W.P.(MD)No.17541 of 2021
THE HON'BLE CHIEF JUSTICE
and
M.DURAISWAMY, J.
MR/RM
W.P.(MD) No.17541 of 2021
28.09.2021
https://www.mhc.tn.gov.in/judis/
