Madras High Court
P.Chandrasekaran vs The District Collector on 16 June, 2022
W.P(MD)No.12013 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 16.06.2022
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
AND
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.P(MD)No.12013 of 2022
and
W.M.P(MD)No.8555 of 2022
P.Chandrasekaran ...Petitioner
Vs.
1.The District Collector,
Trichy District,
Trichy.
2.The Revenue Divisional Officer,
Musiri Taluk,
Trichy District.
3.The Thasildar,
Musiri Taluk,
Trichy District.
4.The Block Development Officer,
Musiri,
Trichy District.
5.The President,
Kattukulam Post,
Musiri Taluk,
Trichy District.
1/13
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W.P(MD)No.12013 of 2022
6.Ponnusamy
7.Thangavel ...Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India, praying this Court to issue a Writ of Mandamus, directing the
respondents 1 to 5 to take action to remove the encroachments made in a
water body in the name of Aandi Kuttai in Survey No.57/2, measuring
4.071 Acres, Kattukulam Village, Musiri Taluk, Trichy District, by the
private respondents or any other person and to implement the order
passed by the fourth respondent vide proceedings in
Na.Ka.A3/4209/2019 dated 15.07.2021, within a reasonable time period
as to be fixed by this Court.
For Petitioners : Mr.N.Dilip Kumar
For R-1 to R-3 : Mr.S.P.Maharajan,
Special Government Pleader
For R-4 & R-5 : Mr.N.Satheesh Kumar
ORDER
(Order of the Court was made by S.S.SUNDAR, J.)
Heard Mr.N.Dilip Kumar, learned counsel appearing for the
petitioner, Mr.S.P.Maharajan, learned Special Government Pleader for
respondents 1 to 3, Mr.N.Satheesh Kumar, learned Additional
Government Pleader for respondents 4 and 5.
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W.P(MD)No.12013 of 2022
2. Having regard to the nature of the order proposed to be passed
by this Court, no notice is necessary to the respondents 6 and 7, who are
impleaded as encroachers.
3. This writ petition is filed seeking for issuance of a Writ of
Mandamus, directing the respondents 1 to 5, to take action to remove the
encroachments made in the water body namely 'Aandi Kuttai' in
Survey No.57/2, measuring 4.071 Acres, Kattukulam Village, Musiri
Taluk, Trichy District, by the respondents 6 and 7 or any other person
and to implement the order passed by the fourth respondent vide
proceedings in Na.Ka.A3/4209/2019 dated 15.07.2021, within a
reasonable time that may be fixed by this Court.
4. It is the case of the petitioner that he is a resident of
Udaiyampatti, Kattukulam Village and he is an agriculturist. It is the
further case of the petitioner that a water body by name 'Aandi Kuttai'
measuring an extent of 4.071 acres in Survey No.57/2 at Kattukulam
Village, Musiri Taluk, Trichy District, is under the control of fifth
respondent local body. The fifth respondent in the writ petition is the
President of Kattukulam Village Panchayat.
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W.P(MD)No.12013 of 2022
5. The specific allegation of the petitioner is that encroachments
have been made by the respondents 6 and 7 over the water body known
as 'Aandi Kuttai' on the south & eastern side of the tank with the aid of
their family members. It is further stated that eastern side of the tank is
encroached by the respondents 6 and 7 by doing agricultural activities
taking advantage of the position that they are having their own patta
lands adjoining the water body.
6. The grievance of the petitioner and the other village people is
that the respondents 6 and 7, by encroaching into the water body caused
obstruction to the free access to the agricultural land of the village
people.
7. The petitioner has made several representations to the
authorities to remove the encroachments made by the respondents 6 and
7 over the water body. It is the case of the petitioner that the third
respondent though directed the fourth respondent to remove the
encroachments after issuing due notice, no action has been taken by the
fourth respondent. However, the fourth respondent has directed the fifth
respondent to remove the encroachments.
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W.P(MD)No.12013 of 2022
8. The learned counsel appearing for the petitioner relied upon a
judgment of the Full Bench of this Court in the case of T.K.Shanmugam
vs. the State of Tamil Nadu and others reported in 2015-5-L.W.397,
wherein the Full Bench of this Court on a reference as to the applicability
of the provision of the Tamil Nadu Protection of Tanks and Eviction of
Encroachment Act, 2007(hereinafter referred to as 'the Act'), has held as
follows:
“44.The Government Orders starting from
30.12.2006 in G.O.(Ms)No.854, Revenue Department and
subsequent Government Orders in G.O.Ms.No.498, 711, 34,
43 and 372 dated 05.09.2007, 30.11.2007, 23.01.2008,
29.01.2010 and 26.08.2014 respectively, with particular
reference to encroachments in water bodies are in clear
violation of the public trust doctrine. Moreover, Article
51-A of the Constitution of India enjoins that it shall be the
duty of every citizen of India, inter alia, to protect and
improve the national environment including forests, lakes,
rivers, wildlife and to have compassion for living creatures.
This Article is not only fundamental in the governance of the
country but a duty on the State to apply these principles in
making laws and further to be kept in mind in
understanding the scope and purport of the fundamental
rights guaranteed by the Constitution including Articles 14,
19 and 21 of the Constitution and also the various laws
enacted by Parliament and the State Legislatures. But
unfortunately, the State, by passing the above said
Government Orders, actively encourages encroachers of
water bodies, to indulge in illegal and unlawful activities
and also bent upon regularizing their possession which has
to be deprecated.”
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W.P(MD)No.12013 of 2022
45.In the light of the above, we answer the reference on
the following terms:- The provisions of the Tamil Nadu
Protection of Tanks and Eviction of Encroachment Act, 2007,
does not in any manner dilute the observations / directions
issued in L.Krishnan vs. State of Tamil Nadu reported 2005-3-
L.W. 313 = 2005(4) CTC 1, as quoted with the approval by the
Hon'ble Supreme Court in Jagpal Singh vs. State of Punjab,
reported in 2011-3-L.W.17=(2011) 11 SCC 396, and the
observations contained in paragraph 20(d)(3) of the judgment
of Division Bench in T.S.Senthil Kumar, vs. Government of
Tamil Nadu, reported in 2010-3-MLJ 771] and that the tanks
which do not fall within the purview of the Tamil Nadu
Protection of Tanks and Eviction of Encroachment Act, 2007,
also require protection from encroachment and any
encroachment made in such tanks or water bodies have to be
removed by following the provisions of the Tamil Nadu Land
Encroachment Act, 1905.
9. It is to be noted that earlier, a Division Bench of this Court in
the case of T.S.Senthil Kumar vs. the Government of Tamil Nadu and
others reported in 2010 Wril L.R. 113, while dismissing the writ
petitions filed by several persons challenging the constitutional vires of
Sections 4 to 10 of the Act, has held as follows:
“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
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W.P(MD)No.12013 of 2022
(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 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
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W.P(MD)No.12013 of 2022
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.
(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.
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W.P(MD)No.12013 of 2022
10. The learned Additional Government Pleader on instructions
submitted that the removal of encroachments in water bodies is being
done, by scrupulously following the provisions of the Act. However, it is
brought to the notice of this Court that the Tank as defined under the Act,
has a clear indication that the tank or water body referred to under the
Act, are the tanks which are under the control and management of Public
Works Department and the tanks which are under the control of local
body, cannot be dealt with under the Act.
11. It was in the said context, the Full Bench of this Court had
directed the action to be taken as per the provisions of the Tamil Nadu
Land Encroachment Act, in case any tank or water body vests with the
local body under the Panchayat Act or by the Executive order by the
State.
12. In the peculiar circumstances of the case, this Court is of the
view that it is appropriate to direct the official respondents to consider
the representation of the petitioner after issuing notice to the respondents
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W.P(MD)No.12013 of 2022
6 and 7 or any one, who may have a say in the matter of removal of
encroachments in the water body.
13. Hence, without expressing any opinion on the merits of the
representation made by the petitioner and the contentions and statements
made in the affidavit filed in support of this writ petition, this Court
directs the third respondent Tahsildar to make a local inspection and
survey the water body namely 'Aandi Kuttai' as per the revenue records
and demarcate the boundary lines of the tank in the presence of the
petitioner and the respondents 6 & 7. Such exercise shall be done by the
third respondent within a period of four weeks from the date of receipt of
a copy of this order. Upon the third respondent drawing a report after
local inspection and enquiry, a copy of the report shall be served on the
petitioner, the respondents 6 & 7 and the local body. It is thereafter, the
third respondent has to initiate action for removal of encroachments as
directed by the Full Bench of this Court in the case of T.K.Shanmugam
vs. the State of Tamil Nadu and others as referred to supra.
14. It is made clear that before initiating action under the Tamil
Nadu Land Encroachment Act, 1905, by the Tahsildar concerned, the
respondents 6 & 7, shall be given an opportunity by way of show-cause
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W.P(MD)No.12013 of 2022
notice. The entire exercise for removal of encroachments shall be
completed by the local body, within a period of twelve weeks from the
date of receipt of report from the Tahsildar concerned as indicated above.
15. In case, the respondents 6 and 7 are found to be in
encroachments as per the report drawn by the Tahsildar after notice to the
petitioner and the respondents 6 and 7, the respondents 6 and 7 raise any
issue regarding title over the property, which is in their enjoyment, it may
be open to the respondents 6 and 7, to approach the civil Court for
appropriate relief and it is not for them to resist the action for eviction on
the basis of any self-serving document without declaration from civil
Court.
With the above directions, the writ petition is disposed of.
Consequently, connected miscellaneous petition is closed.
[S.S.S.R., J.] [S.S.Y., J.]
16.06.2022
Index:Yes/No
Internet:Yes
PM
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W.P(MD)No.12013 of 2022
To
1.The District Collector,
Trichy District,
Trichy.
2.The Revenue Divisional Officer,
Musiri Taluk,
Trichy District.
3.The Thasildar,
Musiri Taluk,
Trichy District.
4.The Block Development Officer,
Musiri,
Trichy District.
5.The President,
Kattukulam Post,
Musiri Taluk,
Trichy District.
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W.P(MD)No.12013 of 2022
S.S.SUNDAR, J.
AND
S.SRIMATHY, J.
PM
ORDER MADE IN
W.P(MD)No.12013 of 2022
16.06.2022
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