Madras High Court
S.Rani vs The District Collector on 21 July, 2023
W.P.(MD) No.17617 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 21.07.2023
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
and
THE HONOURABLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
W.P.(MD) No.17617 of 2023
and
W.M.P.(MD) Nos.14718 & 14720 of 2023
S.Rani ... Petitioner
-vs-
1.The District Collector
Trichy District
Trichy
2.The Tahsildar
Manapparai Taluk Office
Manapparai
Trichy District
3.James
4.Infantraj
5.Arulsamy ... Respondents
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W.P.(MD) No.17617 of 2023
PRAYER: Petition filed under Article 226 of the Constitution of India, to issue
a writ of certiorari calling for the records pertaining to the impugned notice
under Section 6 of the Tamil Nadu Land Encroachment Act, 1905, dated
10.07.2023, issued by the second respondent read along with the impugned
notice under Section 7 of the Tamil Nadu Land Encroachment Act, 1905,
dated 22.06.2023, issued by the second respondent with respect to S.F.No.
10/5 of Vaiyampatti Village, Manapparai Taluk, Trichy District, quash the
same as illegal.
For Petitioner : Mr.A.M.Ramanathan
For Respondents : Mr.D.Sachi Kumar
Additional Government Pleader for R1 & R2
ORDER
[Order of the Court was made by S.S.SUNDAR, J.]
This writ petition is filed challenging the order, dated 10.07.2023,
passed by the second respondent, under Section 6 of the Tamil Nadu Land
Encroachment Act, 1905 (for brevity, “the Act”) and the notice, dated
22.06.2023, issued by the second respondent, under Section 7 of the Act,
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W.P.(MD) No.17617 of 2023
directing the petitioner to remove encroachment from an extent of 0.0181
sq.meter of land in Survey No.10/5 of Vaiyampatti Village, which is classified
as “Vaari”.
2. From the impugned order, it is seen that the nature of the
encroachment is by constructing a bath room and terrace house. The
encroachment is substantial. However, the petitioner comes forward with the
case stating that she is not in encroachment of any portion of public property
or Varri, as alleged.
3. The petitioner further states that she made a representation for
removal of encroachment in the Vaari and changing the course of Vaari as
against a private individual and the said private individual has now instigated
the official respondents by giving wrong particulars complaining that the
petitioner has encroached into the Vaari.
4. Learned counsel for the petitioner states that the order under
Section 6 of the Act was earlier passed by the Local Body against the
petitioner's deceased husband and therefore, this Court, at the instance of the
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W.P.(MD) No.17617 of 2023
petitioner, quashed the same. Again, an attempt is made by the respondents
to initiate action, without even conducting proper survey or measurement, in
the presence of the petitioner, to identify whether the encroachment.
5. Learned Additional Government Pleader, who takes notice for
the respondents 1 to 3, is unable to produce any record to show that survey
was conducted, after issuing notice to the petitioner, in her presence.
6. The Honourable Supreme Court in the case of Madhav Rao
Schindia vs. Ramesh Jatav [(2006) 1 SCC 379] has held that survey to
identify encroachment shall be done in the presence of persons, who are
interested or the persons, who are found to be encroachers.
7. Following the Judgment of Honourable Supreme Court in the
case of Madhav Rao Schindia above referred to, this Court has repeatedly
held that before removal of encroachment, the actual encroachment should be
identified by conducting a survey by the Tahsildar concerned after issuing
notice to the alleged encroachers or in the presence of the alleged encroachers.
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W.P.(MD) No.17617 of 2023
8. 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 principles of natural justice should be read into the provisions of Tamil
Nadu Protections of Tanks and Eviction of Encroachments Act, 2007. So
saying, this Court 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
(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
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W.P.(MD) No.17617 of 2023
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 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
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W.P.(MD) No.17617 of 2023
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
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W.P.(MD) No.17617 of 2023
orders, in accordance with the provisions of the
Act, giving time to the encroachers to remove
the encroachment.”
9. In such circumstances, this Court is inclined to pass the
following orders:
(i) This writ petition is allowed.
(ii) The order, dated 10.07.2023, passed by the second
respondent, under Section 6 of the Act and the
notice, dated 22.06.2023, issued by the second
respondent, under Section 7 of the Act, are quashed.
(iii) Liberty is given to the second respondent to proceed
afresh in accordance with law.
(iv) Before initiating action under the Act, the second
respondent is directed to conduct a survey, after
issuing notice to the petitioner and any other
interested persons.
(v) Survey shall be conducted in the presence of the
petitioner.
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W.P.(MD) No.17617 of 2023
(vi) In case the petitioner or anyone is found to be in
encroachment of any public land, it may be open to
the second respondent to proceed further in
accordance with law.
(vii) No costs. Consequently, connected miscellaneous
petitions are closed.
[S.S.S.R., J.] [D.B.C., J.]
21.07.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
krk
To:
1.The District Collector,
Trichy District,
Trichy.
2.The Tahsildar,
Manapparai Taluk Office,
Manapparai,
Trichy District.
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https://www.mhc.tn.gov.in/judis
W.P.(MD) No.17617 of 2023
S.S.SUNDAR, J.
and
D.BHARATHA CHAKRAVARTHY, J.
krk
W.P.(MD) No.17617 of 2023
and
W.M.P.(MD) Nos.14718 & 14720 of
21.07.2023
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https://www.mhc.tn.gov.in/judis
