Madras High Court
Vasantha vs The District Collector on 5 August, 2022
W.P.(MD)No.17634 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 05.08.2022
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
and
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.P(MD)No.17634 of 2022
and
W.M.P.(MD)No.12850 of 2022
Vasantha ... Petitioner
Vs.
1.The District Collector,
Ramanathapuram District, Ramanathapuram.
2.The Block Development Officer,
Panchayat Union, Thiruvadanai.
3.The Tahsildar, Thiruvadanai,
Ramanathapuram District. ... Respondents
Prayer: Writ Petition filed under Article 226 of Constitution of India, to
issue a Writ of Certiorari to call for the records relating to the second
respondent in his proceedings in Na.Ka.No.A7/805/2022, dated
25.07.2022 directing the petitioner to remove the encroachment made in
S.No.46/1 situated at Kallur Village, Thiruvadanai Taluk,
Ramanathapuram District and to quash the same.
For Petitioner :Mr.PT.S.Narendravasan
For R1 and R3 :Mr.N.Satheesh Kumar
Additional Government Pleader
For R2 :Mr.T.Amjad Khan, Government Advocate
1/6
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.17634 of 2022
ORDER
(Order of the Court was made by S.S.SUNDAR, J.)
Challenging the impugned order passed by the second
respondent directing to remove encroachment in exercise of his power
under Section 131(2) of Tamil Nadu Panchayats Act, 1994, the present
Writ Petition is filed.
2.Heard Mr.PT.S.Narendravasan, learned Counsel for the
petitioner, Mr.N.Satheesh Kumar, learned Additional Government
Pleader, who takes notice on behalf of respondent 1 and 3 and
Mr.T.Amjad Khan, learned Government Advocate, who takes notice on
behalf of the second respondent. By consent of both parties, the present
Writ Petition is taken up for final disposal at admission stage.
3.The petitioner states that she is the owner of the property in
S.No.46/1 measuring an extent of 1 acre 35 cents in Kallur Village,
Thiruvadanai Taluk, Ramanathapuram District. It is the case of the
petitioner that her father filed a suit in O.S.No.33 of 2009 on the file of
the District Munsif cum Judicial Magistrate, Thiruvadanai, for declaration
and the Civil Court has granted an ex parte decree as against the
respondents 1 and 3. On the basis of the said ex parte decree passed as
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W.P.(MD)No.17634 of 2022
against the respondents 1 and 3, the petitioner states that she is the
owner of the property in S.No.46/1.
4.It is admitted that one T.Kalimuthu filed a Writ Petition in
W.P.(MD)No.19745 of 2017 for issuance of a Writ of Mandamus to direct
the official respondents to remove the encroachments in various survey
numbers including S.No.46/1 in Kallur Village. Though the petitioner is
the sixth respondent in the said Writ Petition, it is admitted that the said
Writ Petition is still pending. However, on the basis of the order passed
in a subsequent Writ Petition in W.P.(MD)No.20927 of 2018, the Block
Development Officer, has initiated proceedings under the impugned
order for removal of encroachment under Section 131(2) of Tamil Nadu
Panchayats Act, 1994, to evict the petitioner from the property.
5.The grievance of the petitioner is that the petitioner is not a
party in the second Writ Petition. The learned Counsel for the petitioner
states that the respondents have not followed the procedures, as
contemplated under the Act. It is also submitted that the procedure,
which was directed to be followed by the officials respondents in various
judgment of Honourable Supreme Court as well as this Court, is not
adhered to by the Block Development Officer before passing the
impugned order.
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W.P.(MD)No.17634 of 2022
6.This Court has no hesitation to hold that the impugned order
without issuing show cause notice is not sustainable. It is to be noted
that the Block Development Officer or the local body is not a party in the
suit, that was filed by the petitioner's father. Therefore, the question
whether the ex parte decree obtained by the petitioner's father is binding
on the Block Development Officer has to be considered. In case, the
subject matter of the suit is a water body and vest with local body, the
Block Development Officer can initiate proceedings under Section 131 of
the Tamil Nadu Panchayats Act, 1994. However, in case, the Block
Development Officer is not in a position to secure the possession by
removing the encroachment by initiating proceedings under the Tamil
Nadu Panchayats Act, the matter can be referred to the Tahsildar
concerned, who is expected to take action under the provisions of the
Tamil Nadu Land Encroachments Act. Hence, this Court is inclined to
pass the following order:
(1)The impugned order passed by the Block Development
Officer, namely, the second respondent, dated 25.07.2022 is set aside for
want of prior notice, as contemplated under the statute.
(2)Since the Block Development Officer, by the impugned order,
has indicated that the Tahsildar may initiate further action to remove the
encroachment, this Court direct the third respondent to conduct a survey
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W.P.(MD)No.17634 of 2022
after issuing notice to the petitioner and the interested persons and find
out the character of the land and the manner of encroachment.
(3)After confirming that the petitioner has encroached the
property, that vest with the local body, it is open to the third respondent
to issue a show cause notice to the petitioner as well as the interested
persons, under Section 7 of the Tamil Nadu Land Encroachments Act.
(4)It is also made clear that the third respondent may pass final
orders under Section 6 of the Tamil Nadu Land Encroachments Act.
after hearing/considering the objection that may be filed by the petitioner
to the show cause notice.
7.With the liberty above preserved to the official respondents,
this Writ Petition is disposed of. No costs. Consequently, connected
miscellaneous petition is closed.
[S.S.S.R., J.] [S.S.Y., J.]
05.08.2022
Index : Yes / No
cmr
To
1.The District Collector,
Ramanathapuram District, Ramanathapuram.
2.The Block Development Officer,
Panchayat Union, Thiruvadanai.
3.The Tahsildar, Thiruvadanai,
Ramanathapuram District.
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.17634 of 2022
S.S.SUNDAR, J.
and
S.SRIMATHY, J.
cmr
W.P(MD)No.17634 of 2022
05.08.2022
https://www.mhc.tn.gov.in/judis
