Madras High Court
Yogarajan vs The Tahsildar on 12 June, 2023
W.P(MD)No.13837 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED :12.06.2023
CORAM :
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
and
THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI
W.P(MD)No.13837 of 2023
and
W.M.P(MD)Nos.11669 and 11671 of 2023
Yogarajan ... Petitioner
vs.
1.The Tahsildar,
Madurai East Taluk,
Madurai District.
2.The President,
Ilangiyenthal Village Panchayat,
Puduthamaraipatti Post,
Madurai District. ... Respondents
PRAYER : Writ Petition filed under Article 226 of the Constitution of
India, for issuance of a Writ of Certiorarified Mandamus calling for the
records pertaining to the impugned order dated 05.06.2023 served on the
petitioner on 10.06.2023 of the second respondent relates to S.No.73/21
and quash the same and consequently forbear the respondents from
interfering with the peaceful possession and enjoyment of the house of the
petitioner situated at Iangiyenthal Village.
1/6
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W.P(MD)No.13837 of 2023
For Petitioner : Mr.K.Govindarajan for
Mr.B.Ponnupandi
For R-1 : Mr.S.P.Maharajan,
Special Government Pleader
ORDER
(Order of the Court was made by R.SUBRAMANIAN, J.)
Mr.S.P.Maharajan, learned Special Government Pleader, takes notice
for the respondents.
2. With the consent of both sides, this writ petition is taken up for
final hearing at the admission stage itself.
3. Challenge in this writ petition is to the notice issued by the
President of Ilangiyenthal Village Panchayat, dated 05.06.2023.
4. The fear we have expressed in our earlier order dated 28.04.2023
in W.P(MD)No.10500 of 2023, has come true. The conduct of the
respondents makes it very obvious that the very object is to help the
encroachers and not to remove the encroachments. The order impugned in
this writ petition has to be quashed on the sole ground that Section 131 of
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W.P(MD)No.13837 of 2023
the Tamil Nadu Panchayat Acts, 1994, does not empower the panchayat
President to remove encroachments.
5. We have considered the language of the provision in several
judgments and held that the panchayat President can only seek removal of
encroachment and if the encroacher does not voluntarily remove the
encroachment, the President will have to necessarily approach the Revenue
Tahsildar for eviction of encroachment under the Tamil Nadu Land
Encroachment Act, 1905. In respect of the very same panchayat, we had,
on 21.04.2023, while allowing the writ petition in W.P(MD)No.9527 of
2023, made it clear that the panchayat President will have to necessarily
move the Tahsildar for eviction under the Tamil Nadu Land Encroachment
Act, 1905.
6. Mr.S.P.Mahararajan, learned Special Government Pleader would
however seek to rely upon the judgment of the Division Bench in
W.P(MD)No.28660 of 2022 passed in the absence of the alleged
encroacher wherein there is a direction to the respondents 3 and 4, to
remove the encroachment. It is the duty of the learned Government
Pleader who appeared, to bring it to the notice of the Court the correct
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W.P(MD)No.13837 of 2023
legal position and the authority empowered to remove the encroachment.
We find that this has not been done. In some cases, we come across the
undertakings given by the Government Pleaders and Government
Advocates to remove encroachments. When we try to ensure such
undertakings, the Government Pleaders and the Government Advocates
take shelter under the judgment of the High Courts and the Hon'ble
Supreme Court which laid down that the Government Pleaders and the
Government Advocates are not entitled to give an undertaking on behalf of
the Government and their undertaking will not bind the Government. Even
if a Division Bench is to direct the authority to remove encroachments, it
can only by the authority empowered under the Statute. In the absence of
statutory power, even a Division Bench cannot invest the power. Hence,
we are not able to accept the submissions of the learned Special
Government Pleader based on the judgment of the Division Bench of this
Court in W.P(MD)No.28660 of 2022.
7. We find that the notice under Section 7 of the Tamil Nadu Act III
of 1905, was issued by the Revenue Officials and the eviction order has
been passed by the Panchayat President. We are sure that this has been
done for extraneous consideration to help the encroachers. However, being
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W.P(MD)No.13837 of 2023
helpless we quash the notice. The writ appeal stands allowed and the
impugned notice issued of the second respondent, dated 05.06.2023, is
quashed with liberty to the respondents to proceed “in accordance with
law” if they really want removal of encroachment. No Costs.
Consequently, connected miscellaneous petitions are closed.
(R.SUBRAMANIAN, J.) & (L.VICTORIA GOWRI, J.)
12.06.2023
Index : Yes / No
Neutral Citation : Yes / No
pm
To:
1.The Tahsildar,
Madurai East Taluk,
Madurai District.
2.The President,
Ilangiyenthal Village Panchayat,
Puduthamaraipatti Post,
Madurai District.
https://www.mhc.tn.gov.in/judis
W.P(MD)No.13837 of 2023
R.SUBRAMANIAN, J.
and
L.VICTORIA GOWRI, J.
pm
ORDER MADE IN
W.P(MD)No.13837 of 2023
DATED :12.06.2023
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