Madras High Court
Charles vs The District Collector on 24 June, 2022
W.P.(MD)No.13221 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED:24/06/2022
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
and
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.P(MD)No.13221 of 2022
and
W.M.P(MD)No.9392 of 2022
Charles ... Petitioner
Vs.
1.The District Collector,
Dindigul District,
Dindigul.
2.The Block Development Officer,
(Village Panchayat),
Saanarpatti Village Panchayat Union),
Dindigul District.
3.The President,
T.Panjampatti Village Panchayat,
Saanarpatti Village Panchayat Union,
Dindigul District. ... Respondents
Prayer: Writ Petition filed under Article 226 of Constitution of India, to issue a
Writ of Certiorari, calling for the records relating to the order passed by the
third respondent in his impugned order, dated 18.06.2022 and quash the same
as arbitrary and illegal.
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W.P.(MD)No.13221 of 2022
For Petitioner :Mr.K.Baalasundharam
For Respondents :Mr.S.P.Maharajan,
Special Government Pleader
***
ORDER
(Order of the Court was made by S.S.SUNDAR, J.)
Heard Mr.K.Baalasundharam, learned counsel for the petitioner.
Mr.S.P.Maharajan, learned Special Government Pleader for the respondents.
2. By consent of parties, the writ petition is disposed of at the
admission stage itself.
3. The writ petition has been filed to quash the impugned order, dated
18.06.2022, passed by the third respondent, in and by which, the petitioner was
directed to remove the encroachment made by him.
4. According to the petitioner, he is residing in T.Panjampatti Village,
Kosavapatti Post, Dindigul East Taluk, Dindigul District. It is further stated
that he is having patta lands. However, he was issued with a notice by the
President of the Panchayat namely, the third respondent herein, stating that in
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W.P.(MD)No.13221 of 2022
the case of one Sahaya Raj, the Honourable Supreme Court has passed an order
directing to remove the encroachments made in the water bodies and therefore,
the petitioner has to remove the encroachment made by him, within seven days
from the date of receipt of the said order, otherwise, the encroachment will be
removed by the panchayat.
5. The learned counsel appearing for the petitioner contended that in
the impugned notice, not even the details of encroachment or the survey
number of the lands in which such encroachment is made by the petitioner, is
indicated and such a notice is not under any Statute.
6. The learned Special Government Pleader appearing for the first
respondent/District Collector, submitted that this Court has earlier in the case of
R.Gurusamy vs The Government of Tamil and others, in W.P.(MD)No.11825
of 2022, dated 15.06.2022, issued directions to remove the encroachments from
the water bodies following the survey being conducted. He further submitted
that the land in Survey No.488/2 is classified as 'kalam poromboke' and several
encroachments in the water bodies are reported and the land belongs to the
Government.
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W.P.(MD)No.13221 of 2022
7. In the case of R.Gurusamy vs The Government of Tamil and
others, in W.P.(MD)No.11825 of 2022, dated 15.06.2022, this Court has
observed as follows:
9.The Division Bench of this Court in the case of
T.S.Senthil Kumar vs. Government of Tamil Nadu reported in
2010 (3) MLJ 771, held that the encroachment should be
identified after conducting survey. The Hon'ble Supreme Court in
Madhav Rao Schindia v. Ramesh Jatav [(2006) 1 SCC 379] has
held that such survey to identify encroachment shall be done in the
presence of the persons, who are interested or the persons, who
are found to be encroachers. However, the respondents have not
taken care to comply with the directions of this Court. Hence, the
impugned Form-III notice, dated 03.06.2022, which is contrary to
the statute as held by the Division Bench of this Court, is set aside.
10.However, liberty is given to the fifth respondent to
make arrangements for survey/demarcation in the presence of the
petitioner and to proceed further. After such survey, even if the
survey report reveals that any portion of the petitioner's
construction is encroaching into any part of the water body, the
petitioner is entitled to be heard before passing an order, after
conducting the survey as directed by this Court in the decisions
referred to supra.
11.As pointed out earlier, before conducting survey, the
fifth respondent shall issue a notice as to the date and time on
which, such survey will be conducted. This Writ Petition is
allowed accordingly. There shall be no order as to costs.
Consequently, connected Miscellaneous Petition is closed.”
8. If there is any encroachment in any water body, if it is under the
control of Public Works Department, the provisions of the Tamil Nadu
Protection of Tanks and Eviction of Encroachment Act, 2007, is attracted.
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W.P.(MD)No.13221 of 2022
Similarly, if there is any encroachment in the water body which vests with the
local body, it is open to the Revenue Department to take action for removal of
encroachment under the provisions of the Tamil Nadu Land Encroachment Act,
1905. Again, if there is any encroachment in respect of public street or road
which vests with the local body, it is open to the local body to initiate
proceedings under Section 131 of the Tamil Nadu Panchayats Act, 1994. In
case, the local body is unable to secure possession, it has to get assistance of
the Revenue Department, who in turn will proceed against the encroachers by
invoking the provisions of the Tamil Nadu Land Encroachment Act. Under
every enactment, for removal of encroachment, notice is mandatory.
9. Therefore, this Court suggests that the first respondent/District
Collector, may issue suitable directions to the officials so that all
encroachments in the water bodies or the public land which vests with the local
body or the Government, can be removed under the respective Statute.
10. As suggested by this Court, following the judgment of the
Honourable Supreme Court in Madhav Rao Schindia v. Ramesh Jatav [(2006)
1 SCC 379], before proceeding with the eviction, there shall be a survey
conducted by the Revenue Officials in the presence of alleged encroachers.
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W.P.(MD)No.13221 of 2022
11. As pointed out by this Court earlier in the judgment above
referred to, the Tahsildar concerned shall conduct a survey and demarcation, by
issuing a notice not only to the local body, but also to the person who is in
encroachment of the property. On the basis of the report identifying
encroachment, proceedings shall be initiated by issuing show-cause notice to
the encroacher. Thereafter, final orders shall be passed after hearing the
objections and representations of anyone, who is in possession and enjoyment
over the public land. After passing the final order of eviction under the relevant
Statute, it is open to the respondents to take coercive steps for removal of
encroachment either in public or Government poramboke land or water bodies,
in accordance with law, within a reasonable time.
12. Even assuming that the third respondent is entitled to take action
under Section 131 of the Tamil Nadu Panchayats Act,1994, proceedings for
removal of eviction cannot be finalised by directing the encroacher to remove
the encroachment without issuing a show-cause notice. Therefore, the
impugned order cannot stand and the same is liable to be set aside.
13. In the result, the Writ Petition is allowed and the impugned
eviction order, dated 18.06.2022, is hereby quashed. However, liberty is given
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W.P.(MD)No.13221 of 2022
to proceed further after conducting survey in the presence of petitioner and
thereafter to proceed further as indicated above, following relevant Statute.
If the encroachment is in kalam poromboke, provisions of the Tamil Nadu Land
Encroachment Act, 1905, is applicable. If the land in which the encroachment
noticed is a water body that vests with the Public Works Department, provisions
of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act,
2007, shall be followed. If the water body is either under the control of
Revenue or local body, it is appropriate to proceed under the Tamil Nadu Land
Encroachment Act, 1905. No costs. Consequently, connected miscellaneous
petition is closed.
[S.S.S.R., J.] [S.S.Y., J.]
24/06/2022
Index : Yes / No
pm
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W.P.(MD)No.13221 of 2022
To
1.The District Collector,
Dindigul District,
Dindigul.
2.The Block Development Officer,
(Village Panchayat),
Saanarpatti Village Panchayat Union),
Dindigul District.
3.The President,
T.Panjampatti Village Panchayat,
Saanarpatti Village Panchayat Union,
Dindigul District.
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W.P.(MD)No.13221 of 2022
S.S.SUNDAR, J.
and
S.SRIMATHY, J.
pm
W.P(MD)No.13221 of 2022
24.06.2022
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