Madras High Court
J.Nisha vs The District Collector on 9 June, 2022
W.P.(MD)No.7664 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 09.06.2022
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
AND
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.P.(MD)No.7664 of 2022
and
W.M.P.(MD)Nos.5783 & 5785 of 2022
J.Nisha ...Petitioner
/Vs./
1.The District Collector,
Nagercoil,
Kanyakumari District.
2.The Revenue Division Officer,
Nagercoil,
Kanyakumari District.
3.The Assistant Engineer,
Water Resource Organization – Public Works Department,
Nagercoil,
Kanyakumari District.
4.The Tahsildar,
Agasteeswaram Taluk,
Nagercoil,
Kanyakumari District.
1/10
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W.P.(MD)No.7664 of 2022
5.The Village Administrative Officer,
Putheri, (previously Vadaseri),
Agasteeswaram Taluk,
Kanyakumari District. ...Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India for issuance of Writ of Certiorarified Mandamus, to call for the
records related to the impugned proceedings of the Assistant Engineer,
WRO - PWD, Irrigation Section, Nagercoil in Letter No.Ko.12/153/2022
dated 21.03.2022 (delivered on 01.04.2022) and Letter No.Ko.
12/174/2022 dated 29.03.2022 (delivered on 09.04.2022) and quash them
both same and consequently forbear the respondents from interfering
with the petitioner's peaceful possession and enjoyment of her residential
house bearing Door No.1/222N1-A, Putheri Village Panchayat,
(previously Vadaseri) having an extent of 3 cents in Survey No.463/2
(now classified in Survey No.463/2A1A1), Putheri, (previously
Vadaseri), Agasteeswaram Taluk, Kanyakumari District.
For Petitioner : Mr.N.Dilip Kumar
For Respondents : Mr.T.Amjath Khan
Government Advocate
ORDER
[Order of the Court was made by S.S.SUNDAR, J.]
This writ petition is filed challenging the notice issued by the third
respondent dated 21.03.2022 and the consequential order dated
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W.P.(MD)No.7664 of 2022
29.03.2022 and to forbear the respondents from interfering with the
petitioner's peaceful possession and enjoyment of her residential house
bearing Door No.1/222N1-A, Putheri Village Panchayat, (previously
Vadaseri) having an extent of 3 cents in Survey No.463/2 (now classified
in Survey No.463/2A1A1), Putheri, (previously Vadaseri),
Agasteeswaram Taluk, Kanyakumari District.
2.The petitioner states that she has put up a residential house,
which lies in S.No.463/2, measuring to an extent of 3 cents (now
classified in Survey No.463/2A1A1), Putheri, (previously Vadaseri),
Agasteeswaram Taluk, Kanyakumari District.
3.It is the case of the petitioner that it is a patta land and no portion
of her property, in which, she has put up a house, falls within the water
body. However, the impugned notice has been issued by the third
respondent directing the petitioner to remove the encroachment. In the
notice impugned in this writ petition, the survey number mentioned is
494 and not survey number 463/2.
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W.P.(MD)No.7664 of 2022
4.The petitioner has earlier filed a writ petition in WP(MD)No.
4203 of 2022 challenging the letter dated 24.02.2022 along with
annexure in Form III issued under the Tamil Nadu Protection of Tanks
and Eviction of Encroachment Act, 2007. The said writ petition was
allowed after following the judgment of the Hon'ble Division Bench of
this Court in the case of T.S.Senthil Kumar vs. Government of Tamil
Nadu reported in 2004 (3) MLJ 771 and the impugned proceedings were
set aside and liberty was given to the respondents for taking action
strictly in accordance with the directions issued by the Division Bench of
this Court. However, even after the order of this Court in the writ
petition filed by the petitioner earlier in WP(MD)No.4203 of 2022, a
different notice has been issued once again by showing the encroachment
by the petitioner in S.No.494 measuring to an extent of 0.01.17 h.a..
5.The grievance of the petitioner is that the respondents have not
followed the procedure contemplated under the Tamil Nadu Protection of
Tanks and Eviction of Encroachment Act, 2007, ie., conducting survey in
the presence of the petitioner or the persons who are interested in.
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W.P.(MD)No.7664 of 2022
6.From the Field Measurement Book (FMB) produced by the
petitioner's counsel, this Court is unable to find any connection
whatsoever, between the survey number claimed by the petitioner and the
survey number, in respect of which notice in Form III was issued.
7.This Court, in the earlier round, quoted the Judgment of the
Division Bench of this Court in T.S.Senthil Kumar's case and directed
the respondents to follow the same in strict adherence, before taking any
action. Unfortunately, the respondents have not produced any records to
show that they conducted survey after issuing notice. It is not their case
that the petitioner is aware of the survey, but did not participate at the
time of inspection by officials for the purpose of survey.
8.The learned counsel appearing for the petitioner also relied upon
the Judgment of Hon'ble Supreme Court, in the case of Madhavrao
Scindia vs. Ramesh Jatav and Others reported in 2006 (1) SCC 379
wherein the Hon'ble Supreme Court, had taken note of a similar situation
and passed the following order:
“1. The learned Senior Counsel for the
petitioners submits that the impugned order of the
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W.P.(MD)No.7664 of 2022
High Court has been passed with undue haste. Some
of the directions made by the High Court are vague
and premature. As to para 11, it is submitted that no
encroachment could have been directed to be
removed and no demolition could have been ordered
without recording a specific finding in that regard.
The Municipal Corporation ought to have been
directed to carry out a survey in the presence of the
parties and identify encroachment and unauthorised
construction, if any, so that the aggrieved party could
have the remedy of approaching the civil court. As to
para 10, it is submitted that that direction, if any, was
called for against O.P.Saraswat who is in illegal
possession of land in excess of what he is entitled to.
2. Issue notice to Respondents 1 to 11. The
learned counsel for the petitioners submits that for
the present notice is not required to be issued to
Respondents 12 to 24.
3. Until further orders, it is directed that the
direction made by the High Court shall remain stayed
until the Municipal Corporation has identified the
boundaries of the land alleged to be public park and
clearly identified, by taking measurements, the
encroachment, if any. Needless to say such survey
and identification shall have to be done in the
presence of the parties likely to be affected adversely
by the action of the Municipal Corporation.”
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W.P.(MD)No.7664 of 2022
9.Despite the Hon'ble Division Bench of this Court held that the
encroachment should be identified after conducting survey in the
presence of the persons, who are interested or the persons, who are found
to be encroachers of water body, the respondents have not taken care to
comply with the directions of this Court. Hence, the impugned notice
and order, which are contrary to the statute as held by the Division Bench
of this Court, are set aside.
10.However, liberty is given to the third respondent to make
arrangements for survey/demarcation in the presence of the petitioner
and to proceed further. After such survey, only if the survey report
reveals that any portion of the petitioner's construction is encroaching
into any part of the water body in S.No.494, the petitioner is entitled to
be heard before passing an order, after conducting the survey as directed
by this Court in T.S.Senthil Kumar's case.
11.As pointed out earlier, before conducting survey, the third
respondent shall issue a notice as to the date and time on which, such
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W.P.(MD)No.7664 of 2022
survey is conducted. This Writ Petition is allowed accordingly. There
shall be no order as to costs. Consequently, connected Miscellaneous
Petition is closed.
[S.S.S.R., J.] & [S.S.Y., J.]
09.06.2022
Index:Yes/No
Internet:Yes/No
sm
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W.P.(MD)No.7664 of 2022
To
1.The District Collector,
Nagercoil,
Kanyakumari District.
2.The Revenue Division Officer,
Nagercoil,
Kanyakumari District.
3.The Assistant Engineer,
Water Resource Organization – Public Works Department,
Nagercoil,
Kanyakumari District.
4.The Tahsildar,
Agasteeswaram Taluk,
Nagercoil,
Kanyakumari District.
5.The Village Administrative Officer,
Putheri, (previously Vadaseri),
Agasteeswaram Taluk,
Kanyakumari District.
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W.P.(MD)No.7664 of 2022
S.S.SUNDAR, J.
AND
S.SRIMATHY, J.
sm
Order Made in
W.P.(MD)No.7664 of 2022
Dated:
09.06.2022
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