Madras High Court
R.Saraswathi vs The Assistant Engineer on 3 August, 2022
W.P.No.19856 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.08.2022
CORAM :
THE HON'BLE MR.MUNISHWAR NATH BHANDARI, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
W.P.No.19856 of 2022
1.R.Saraswathi
2.R.Lakshmi
3.K.Selvi
4.B.Savithri
5.T.Karthikeyan
6.T.Umapathi .. Petitioners
vs
The Assistant Engineer,
(Water Resources Organisations)
River Conservation Division,
Public Works Department,
Karur .. Respondent
Prayer: Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Certiorari calling for the records on the file of the
respondent in Form No.3, dated 23.07.2022 and quash the same.
For the Petitioners : Mr.P.Kannan Kumar
For the Respondent : Mr.P.Muthukumar,
State Government Pleader
Page 1 of 8
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W.P.No.19856 of 2022
ORDER
(Order of the Court was made by
the Hon'ble Chief Justice)
By this writ petition, challenge is made to Form-III notice issued
under the provisions of the Tamil Nadu Protection of Tanks and
Eviction of Encroachment Act, 2007.
2. The main ground of challenge is denial of opportunity of
hearing before causing notice under Form-III, and even non-service of
the notice of Form-II under the Act of 2007. The petitioners have,
however, submitted objection to the notice issued under Form-III,
giving out that action aforesaid is nothing but out-come of the mala
fides due to rivalry out of election. It was also submitted that there are
many other encroachments but no action has been taken against
them, while action has been initiated only against the petitioners, who
are in possession of the land for the last forty years. In the light of the
argument aforesaid, prayer is to set aside the notice issued under
Form-III.
3. We have considered the submission made by learned counsel
and perused the records.
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W.P.No.19856 of 2022
4. The issue raised by the petitioners has been dealt with by
Division Bench of this Court in the case of T.Senthil Kumar vs.
Government of Tamil Nadu [2010(3) MLJ 771], and subsequent
judgment of the larger Bench in the case of T.K.Shanmugam vs.
State of Tamil Nadu [(2015) 8 MLJ 1]. The validity of provisions of
the Act 2007 was an issue before the Division Bench. The provisions
were held to be constitutionally valid but finding that no process for
hearing has been given to abide the principles of natural justice, a
direction was given to supply copy of Form-II before, and at the same
time, on issuance of Form-III, liberty was given to the party to send
objection within a period of two weeks. In case of objection, Form-III
notice be treated as show-cause notice and thereby, the respondents
to pass appropriate order in reference to objection, before proceeding
further to remove the encroachment. The relevant paragraph of the
Division Bench judgment is quoted hereunder for ready reference:
“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
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W.P.No.19856 of 2022
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 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
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W.P.No.19856 of 2022
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 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.
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W.P.No.19856 of 2022
(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.”
5. In the light of the aforesaid, we find reason to issue
appropriate direction on the respondent before they proceed further to
remove the encroachment, since pursuant to the notice, the
petitioners have already submitted their reply/objection. Therefore,
the respondent is directed to consider and pass a speaking order on
the aforesaid, within a period of four weeks, and if the objection/reply
to the notice is rejected, then only to proceed further to remove the
encroachment.
6. With the aforesaid direction, the writ petition is disposed of.
However in the meanwhile, if the petitioners pray for a copy of the
notice under Form-II, as affixed in the manner given under the Act, it
would be provided and otherwise, should have been given but now
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W.P.No.19856 of 2022
objection/reply to notice having been submitted without an objection
to it, appropriate direction for passing the order on reply/objection has
been given. There will be no order as to costs. W.M.P.No.19165 of
2022 is closed.
7. W.M.P.No.19162 of 2022 is filed to allow the petitioners to file
a single writ petition and the same is allowed, subject to payment of
separate Court fees. The order passed by this Court would hold good
only if separate Court fees is paid by the petitioners in the Registry
within a period of three days from today.
(M.N.B., CJ.) (D.B.C., J.)
03.08.2022
Index : Yes/No
tar
To:
The Assistant Engineer,
(Water Resources Organisations)
River Conservation Division,
Public Works Department,
Karur
https://www.mhc.tn.gov.in/judis
W.P.No.19856 of 2022
M.N.Bhandari, CJ.
and
D.Bharatha Chakravarthy, J.
(tar)
W.P.No.19856 of 2022
03.08.2022
https://www.mhc.tn.gov.in/judis
