Madras High Court
S.Krishnan vs The District Collector on 10 August, 2022
W.P.(MD)Nos.18006 to 18010 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 10.08.2022
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
and
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.P(MD)Nos.18006 to 18010 of 2022
and
W.M.P.(MD)Nos.13152 to 13154, 13156 and 13157 of 2022
S.Krishnan ... Petitioner in W.P.(MD) No.18006/2022
S.Muniyasamy ... Petitioner in W.P.(MD) No.18007/2022
U.Sathya ... Petitioner in W.P.(MD) No.18008/2022
R.Karikalan ... Petitioner in W.P.(MD) No.18009/2022
C.Poongundran Ganesh
Krishnan ... Petitioner in W.P.(MD) No.18010/2022
Vs.
1.The District Collector,
Sivagangai District,
Sivagangai.
2.The Tahsildar,
Ilayankudi Taluk,
Sivagangai District.
3.The Executive Officer,
Salaigramam Village Panchayat,
Salaigramam Post,
Ilayankudi Taluk,
Sivagangai District.
1/8
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W.P.(MD)Nos.18006 to 18010 of 2022
4.The Revenue Inspector,
Salaigramam,
Ilayankudi Taluk,
Sivagangai District.
5.The Village Administrative Officer,
Salaigramam,
Ilayankudi Taluk,
Sivagangai District. ... Respondents in all the writ petitions
Common Prayer: Writ Petitions filed under Article 226 of
Constitution of India, praying to issue a Writ of Mandamus,
directing the 1st respondent to dispose of the appeal dated
16.07.2022 filed by the petitioner within a time stipulated by this
Hon'ble Court.
For Petitioner in all the : Mr.M.P.Senthil
Writ Petitions
For Respondents 1, 2, 4 : Mr.T.Amjadkhan
& 5 in all the Writ Government Advocate
Petitions
For 3rd Respondent in all : Mr.J.Ashok
the Writ Petitions Additional Government Pleader
***
COMMON ORDER
(Common Order of the Court was made by S.S.SUNDAR, J.)
These Writ Petitions have been filed by the same set of writ
petitioners, who have earlier filed Writ Petitions in W.P.(MD) Nos.
12939 of etc., batch cases challenging the order / notice dated
15.06.2022, for removal of encroachment by initiating proceedings
under Section 131(2) of the Tamil Nadu Panchayats Act, 1994.
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W.P.(MD)Nos.18006 to 18010 of 2022
2. Since the encroachment is in respect of a water
body following judgments of earlier Division Bench, this Court in
the said Writ Petitions held that the local body is not competent to
deal with the encroachment on water bodies and such
encroachment shall be dealt with by the Revenue Officials by
invoking provisions of the Tamil Nadu Land Encroachment Act,
1905.
3. The relevant portion of the common order dated
22.06.2022 made in W.P.(MD) Nos.12939 to 12943 and 12978 to
12982 of 2022 is extracted hereunder:-
“9.However, the encroachment in
water bodies cannot be permitted. Therefore,
the impugned notices issued by the sixth
respondent are quashed and the third
respondent is directed to follow the
procedure, as contemplated under the Tamil
Nadu Land Encroachment Act. It is not in
dispute that the petitioners have encroached
the land in S.No.350, which is classified as
oorani. Therefore, there is no dispute that the
entire building in which the petitioners are in
occupation falls within the water body.
Therefore, there is no requirement of survey
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W.P.(MD)Nos.18006 to 18010 of 2022
or demarcation of the encroachment in this
case, as directed by this Court in the case of
T.S.Senthil Kumar vs. Government of
Tamil Nadu reported in 2010 (3) MLJ 771,
and by this Court following the judgment of
Honourable Supreme Court in the case of
Madhav Rao Schindia v. Ramesh Jatav
[(2006) 1 SCC 379]. However, the
procedure contemplated under the Land
Encroachment Act shall be strictly followed by
the third respondent while removing the
encroachment from the water body.
10.Considering the fact that the local
body has no power or jurisdiction to initiate
action for removal of encroachment in
exercise of their power under Section 131(2)
of the Act, this Court directs the third
respondent to proceed further, as indicated in
the judgment of Honourable Full Bench of this
Court, referred to above. The Tahsildar, the
third respondent, is granted eight weeks time
to report this Court as to the removal of
encroachment of petitioners and other
encroachers.
11.It is noticed that the local body
has also put up construction in the bund,
which is not permissible and it is also contrary
to the directions issued by the Honourable
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W.P.(MD)Nos.18006 to 18010 of 2022
Supreme Court. The local body or any
Government Agency or statutory authority,
who have encroached into or put up any
construction in any land, which is classified as
a water body, have to vacate and shift the
building to some other place, so that the
entire water body and bund or water
catchment area, if any, which is also part of
oorani, is available to the public serving the
purpose, as a water body and they should be
maintained, as a water body as per the
direction of this Court.
12.With the above directions, these
Writ Petitions are allowed. No costs.
Consequently, connected miscellaneous
petitions are closed.
13.Post the matter for reporting
compliance on 24.08.2022.”
4. Pursuant to the said common order of this Court,
disposing of those Writ Petitions, it appears that the respondents
have passed final orders under Section 6 of the Tamil Nadu Land
Encroachment Act, 1905, directing the petitioners to remove the
encroachments. It is stated that the petitioners in all these Writ
Petitions preferred appeal before the first respondent – District
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W.P.(MD)Nos.18006 to 18010 of 2022
Collector under Section 10 of the Tamil Nadu Land Encroachment
Act, 1905.
5.Though this Court is unable to sustain the arguments of
the learned counsel for the petitioner, considering his request that
the petitioners may be given some time, this Court is inclined to
direct the respondents not to take any coercive action pursuant to
the notice issued under Section 6 of the Tamil Nadu Land
Encroachment Act, 1905 till such time the appeal filed by the
petitioners under Section 10 of the Tamil Nadu Land Encroachment
Act, 1905 is decided by the District Collector, Sivagangai District on
merits.
6. This Court has earlier directed the Tahsildar,
Ilayankudi Taluk, Sivagangai District, to report compliance by
24.08.2022. Therefore, in all promptness the respondents have
taken action in compliance of the directions issued by this Court.
However, the grievance of the petitioner is that the respondents
have not issued a show cause notice or a notice under Section 7 of
the Tamil Nadu Land Encroachment Act, 1905 before issuing notice
under Section 6 of the Act.
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W.P.(MD)Nos.18006 to 18010 of 2022
7. It is in the said circumstances, this Court is
inclined to dispose of the Writ Petition with the following
directions:-
(i) The District Collector, Sivagangai District - 1st
respondent is directed to consider the appeals filed by the
petitioners dated 16.07.2022, under Section 10 of the Tamil Nadu
Land Encroachment Act, 1905 and pass orders on merits and in
accordance with law within a period of three months from the date
of receipt of a copy of this order.
(ii) Till such time, the appeals preferred by the
petitioners are disposed of, the respondents shall not forcibly evict
the petitioners from the premises.
8. The Writ Petition is disposed of with the above
directions. No costs. Consequently, connected Miscellaneous
Petitions are closed.
[S.S.S.R., J.] [S.S.Y., J.]
10.08.2022
Index : Yes / No
sj
To
1.The District Collector,
Sivagangai District,
Sivagangai.
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W.P.(MD)Nos.18006 to 18010 of 2022
S.S.SUNDAR, J.
and
S.SRIMATHY, J.
sj
2.The Tahsildar,
Ilayankudi Taluk,
Sivagangai District.
3.The Executive Officer,
Salaigramam Village Panchayat,
Salaigramam Post,
Ilayankudi Taluk,
Sivagangai District.
4.The Revenue Inspector,
Salaigramam,
Ilayankudi Taluk,
Sivagangai District.
5.The Village Administrative Officer,
Salaigramam,
Ilayankudi Taluk,
Sivagangai District.
W.P(MD)Nos.18006 to 18010 of 2022
10.08.2022
https://www.mhc.tn.gov.in/judis
