Madras High Court
Babu C vs The District Collector on 9 April, 2025
Author: M.Sundar
Bench: M.Sundar
W.P.No.13081 and 13085 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.04.2025
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI
W.P.Nos.13081 and 13085 of 2025
and
W.M.P. No.14755 of 2025 in W.P.No.13081 of 2025
and
W.M.P. No.14603 of 2025 in W.P.No.13085 of 2025
Babu C ... Petitioner in
W.P.No.13081 of 2025
Pitchai Ammal ... Petitioner in
W.P.No.13085 of 2025
Vs.
1.The District Collector,
Chengalpattu,
Chengalpattu District.
2.The Tahsildar,
Pallavaram Taluk,
Chengalpattu District.
3.The Commissioner,
Tambaram Municipality,
Tambaram,
Chengalpattu – 600 045. ... Respondents in
both WPs
Page Nos.1/15
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W.P.No.13081 and 13085 of 2025
Prayer in W.P.No.13081 of 2025: Writ Petition filed under
Article 226 of The Constitution of India praying for the issuance of a
writ of mandamus forbearing the respondents not to evict the
petitioner from the said premises and further direct the second
respondent to consider the petitioner's representation dated
05.03.2025 to issuance of patta in respect of property in Survey
No.372/1 situated at Shop No.54, Railway Station Road, Pallavaram,
Chengalpattu District.
Prayer in W.P.No.13085 of 2025: Writ Petition filed under
Article 226 of The Constitution of India praying for the issuance of a
writ of mandamus forbearing the respondents not to evict the
petitioner from the said premises and further direct the second
respondent to consider the petitioner's representation dated
10.03.2025 to issuance of patta in respect of property in Survey
No.372/1 situated at Shop No.32, Railway Station Road, Pallavaram,
Chengalpattu District.
For Petitioner : Mr.N.Edwin Jayakumar
in both WPs
For Respondents : Mr.T.K.Saravanan,
Additional Government Pleader
in both WPs
Page Nos.2/15
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W.P.No.13081 and 13085 of 2025
COMMON ORDER
[Order of the Court was made by K.GOVINDARAJAN THILAKAVADI, J.,]
Captioned writ petitions are filed for the issuance of a writ of
mandamus forbearing the respondents not to evict the petitioners from
the subject premises and for a consequential direction to the second
respondent to consider the petitioners' representations dated
05.03.2025 and 10.03.2025 respectively for issuance of patta in
respect of property in Survey No.372/1 situated at Shop Nos.54 and
32 respectively at Railway Station Road, Pallavaram, Chengalpattu
District.
2. It is the case of the writ petitioners that Shop Nos.54 and 32
were purchased by the respective petitioners and from the date of
purchase, they are in possession and enjoyment of the same and they
have also applied for patta. The petitioners had also sent
representations dated 05.03.2025 and 10.03.2025 respectively for
issuance of patta, to the first respondent, who, in turn forwarded the
said representations to the second respondent for taking necessary
action. However, no action has been taken by the respondents at their
end. The petitioners are under threat of eviction from the subject
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W.P.No.13081 and 13085 of 2025
premises and this has necessitated the writ petitioners to file the
captioned writ petitions.
3. Issue notice to the respondents.
4. Mr.T.K.Saravanan, learned Additional Government Pleader
accepts notice for the respondents.
5. Owing to the limited scope of writ petitions, with the consent
of both sides, the main writ petitions are taken up at the admission
stage.
6. Learned Additional Government Pleader submits that in the
earlier writ petition filed by one Mr.S.P.Gandhi in W.P.No.10863 of
2024, learned State Government Pleader undertook to survey the
lands in Survey No.372 (which is sub-divided into Survey Nos.372/1,
372/2 and 372/3) within a period of four months from the date of
order and survey was conducted in the said survey number within the
said stipulated period. Said undertaking was recorded in paragraph 3
of the order dated 22.04.2024, which reads as follows:
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'3. Learned State Government Pleader further
submits that the lands in Survey No.372 would be
surveyed within a period of four months from today and if
upon survey encroachment is found, then steps to remove
the encroachment in accordance with law would be
undertaken after observing the principles of natural
justice, within one month thereafter.'
7. Learned Additional Government Pleader also submits that the
present writ petitions are also covered by the order dated 02.04.2025
passed in W.P.Nos.11767 and 11777 of 2025. However, in the said writ
petitions, notice was caused to the writ petitioners but in the present
writ petitions, no notice was served on the writ petitioners.
8. The order dated 02.04.2025 passed in W.P.Nos.11767 and
11777 of 2025 reads as follows:
'IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.04.2025
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI
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W.P.No.13081 and 13085 of 2025
W.P.Nos.11767 and 11777 of 2025
&
W.M.P Nos.13326 and 13339 of 2025
Ganesan ... Petitioner
Mohammed Saleem Thekku ... Petitioner
vs.
1. The Commissioner
The Office of Commissionarate
Tambaram Municipal Corporation
2. The District Collector
Tambaram
Chengalpattu District
3. The Tahsildar
Tambaram
4. The Village Administrative Officer
Jameen Pallavaram
Tambaram
5. The Executive Engineer
Water Resources Department
Tambaram ... Respondents
in both WPs
(*R5 suo motu impleaded vide this order)
W.P.No. 11767 of 2025: Writ Petition filed under Article 226 of The
Constitution of India praying to issue a Writ of Mandamus forbearing the
respondents particularly 2nd to 4th respondents from evicting the petitioner
from the property bearing Shop No.59 situated at Railway Station Road,
Jameen Pallavaram Village, Tambaram Taluk, Chengalpattu District
comprised in Survey No.372/1, T.S.No.2 without passing any appropriate
orders under Section 7 of the Protection of Tanks and Eviction of
Encroachment Act,2007.
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W.P.No.13081 and 13085 of 2025
W.P.No. 11777 of 2025: Writ Petition filed under Article 226 of The
Constitution of India praying to issue a Writ of Mandamus forbearing the
respondents particularly 2nd to 4th respondents from evicting the petitioner
from the property bearing Shop No.58 situated at Railway Station Road,
Jameen Pallavaram Village, Tambaram Taluk, Chengalpattu District
comprised in Survey No.372/1, T.S.No.2 without passing any appropriate
orders under Section 7 of the Protection of Tanks and Eviction of
Encroachment Act,2007.
For Petitioners : Mr.G.Mohammed Aseef
in both writ petitions
For Respondents : Mr.T.K.Saravanan
in both writ petitions Additional Government Pleader
for R1 to R5
COMMON ORDER
[Order of the Court was made by M.SUNDAR, J.,]
In captioned 'Writ Petitions' ['WPs' in plural and 'WP' in singular for
the sake of brevity], two notices, both signed by R1 (Commissioner,
Tambaram Municipal Corporation) on 12.08.2024 and captioned 'Show-cause
Notice' ['SCN' in singular and 'SCNs' in plural for the sake of brevity] have
been assailed. These two notices shall be collectively referred to as 'impugned
notices' for the sake of brevity, convenience and clarity.
2. Mr.G.Mohammed Aseef, learned counsel on record for the writ
petitioners is before us. Adverting to the impugned notices, learned counsel
submits that the subject matter of impugned notices is 'land comprised in
Survey No.372/1, Town Survey No.2, Ward G, Block 5 in Jameen Pallavaram
Village, Tambaram Corporation, Zone – 2, Chengalpattu District and the brick
and mortar superstructure standing on the same' [hereinafter 'said property' for
the sake of convenience and clarity].
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3. Learned counsel for writ petitioners submits that R1 does not have
the authority to issue SCNs as the same are under the 'Tamil Nadu Protection
of Tanks and Eviction of Encroachment Act, 2007 (Tamil Nadu Act 8 of
2007)' {hereinafter 'Tanks Act' for the sake of convenience, clarity and
brevity}. Notwithstanding this position, writ petitioners have responded to
the impugned notices in and vide objections dated 27.03.2025 but without
considering the objections or passing appropriate orders, hectic efforts are
underway to remove writ petitioners from said property branding them as
'encroachers' under Tanks Act is learned counsel's further say.
4. Issue notice to respondents.
5. Mr.T.K.Saravanan, learned Additional Government Pleader accepts
notice for all four respondents and submits that one Mr.S.P.Gandhi {President
of Pallavaram 13th Ward Kudiiruppor Podhu Nala Sangam} filed a writ
petition in W.P.No.10863 of 2024 with a plea for removal of encroachment/s,
the same came to be disposed of by a Hon'ble Division Bench on 22.04.2024
and the impugned notices have been issued pursuant to such orders.
6. This Court carefully considered the case file and the submissions.
7. This Court finds that the scope of the captioned WPs is very limited
and therefore, with the consent of learned counsel on both sides, main WPs
were taken up in the Admission Board.
8. The first point urged by learned counsel for writ petitioners is a
jurisdiction point. A perusal of the impugned notices styled 'SCNs' makes it
clear that the same have been issued by R1 purportedly under Section 6(3) of
Tanks Act. Section 6(3) talks about publication of a notice in the prescribed
manner pointing out the boundaries of the Tank. Therefore, this provision
does not enure to the benefit of the respondents insofar as impugned notices
i.e., SCNs are concerned.
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9. Before we proceed further, it is necessary to respectfully advert to
order dated 22.04.2024 made by another Hon'ble Division Bench in
W.P.No.10863 of 2024 about which there is allusion supra. Paragraph 2 of
this 22.04.2024 order makes it clear that Survey No.372 has been sub-divided
into Survey Nos.372/1, 372/2 and 372/3 which are pond, pattai and temple
respectively. To be noted, as regards impugned notices, we are concerned
only with Survey No.372/1, which is a pond. This means that the ratio laid
down by a Hon'ble Full Bench of this Court in T.K.Shanmugam case i.e.,
T.K.Shanmugam Vs. The State of Tamil Nadu and others reported in 2015
SCC OnLine Mad 9343 comes into play. In T.K.Shanmugam, the
procedure to be followed as regards removal of encroachment under Tanks
Act as laid down in T.S.Senthil Kumar case {T.S.Sentil Kumar Vs.
Government of Tamil Nadu and others reported in 2010 SCC OnLine Mad
1347} has been reiterated. Relevant paragraphs in T.K.Shanmugam case are
sub-sub-paragraphs (i), (ii) and (iii) of sub-paragraph (f) of paragraph No.15,
which read as follows:
'15. Certain provisions of Tank Act namely, Sections
4 to 10 were challenged in a Writ Petition with a prayer to
declare those provisions as null and void and contrary to
Article 14 of the Constitution of India on the ground that
those provisions confer upon the executive, unguided and
uncanalised discretionary power, since they denied to the
persons aggrieved an opportunity of being heard. The said
Writ petition was heard by a Division Bench to which one of
us (M.Sathyanarayanan,J.) was a party. The Division Bench
took note of the various decisions including the decision in
the case of Sivakasi Region Tax Payers Association (supra),
disposed of the Writ Petitions without declaring the
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provisions of the Act as unconstitutional, since no
opportunity is given and held that there is nothing in the Act
which excludes the principles of natural justice, the Act
(Tank Act) does not specifically indicate that the
encroachers do not have right to be heard and issued the
following directions vide judgment dated 10.02.2010,
reported in 2010 3 MLJ 771.
(a) .....
(b) .....
(c) .....
(d) ......
(e) .....
(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.'
We respectfully follow the aforesaid principle put in place by a
Hon'ble Full Bench.
10. As regards the aforementioned procedure, Form II under 'Tamil
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Nadu Protection of Tanks and Eviction of Encroachment Rules, 2007'
[hereinafter 'Tanks Rules' for the sake of brevity] is qua sub-rule (2) of Rule 5
which talks about handing over a chart and register to 'Officer' referred to in
sub-rule (3) of Rule 4. Sub-rule (3) of Rule 4 talks about 'Officer of Public
Works Department', survey and demarcation of the limits of the Tanks.
Therefore, notice to alleged encroacher which is simultaneous qua Form II
vide T.K.Shanmugam principle has to be issued by 'Officer', to be noted,
'Officer' is a term of Art i.e., a defined term having been defined under Rule
2(1)(d) of Tanks Rules, which reads as follows:
Rule 2(1)(d) - “Officer” means the Assistant Engineer or Junior
Engineer or Overseer of the Water Resources Organization of Public Works
Department, in charge of the tanks lying in his jurisdiction for the purpose of
enforcing the provisions of the Acts and the Rules'
11. It is clear as daylight that R1 does not qualify as an 'Officer' vide
Rule 2(1)(d) of Tanks Rules. In this view of the matter, we suo motu implead
Executive Engineer, Water Resources Department, Tambaram as R5 and
Mr.T.K.Saravanan, learned Additional Government Pleader accepts notice for
R5 also.
12. Before we proceed further, we make it clear that as regards Survey
No.372/2, as the same is pattai, if any removal of encroachment proceedings
are to be embarked upon, the same shall be under 'the Tamil Nadu Land
Encroachment Act, 1905 (Tamil Nadu Act III of 1905)' [hereinafter 'said 1905
Act' for the sake of convenience] by Officers specified thereat. Likewise, as
regards Survey No.372/3, it has to be either under 'The Tamil Nadu Hindu
Religious and Charitable Endowment Act, 1959 (Act 22 of 1959)' [hereinafter
'TN HR & CE Act' for the sake of brevity], more particularly Section 78
thereat and / or under said 1905 Act. Either way, the alleged encroachers have
to be put on notice/show-caused and opportunity has to be given.
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W.P.No.13081 and 13085 of 2025
13. As we sustain the jurisdiction point urged by learned counsel for
writ petitioners, we deem it unnecessary to embark upon a legal drill qua the
second point which turns on the responses not being considered.
14. In the light of the narrative, discussion and dispositive reasoning
thus far, the following order is made:
i) Impugned notices being notices dated 12.08.2024 are set aside;
ii) Impugned notices are set aside on jurisdictional point and therefore,
though obvious we make it clear that we have not expressed any view or
opinion on the merits of the matter much less about alleged encroachments
one way or the other;
iii) It is made clear that if the above exercise is undertaken along with
Form II, Form III shall also be issued as made clear in T.K.Shanmugam
principle;
iv) We preserve all the rights and contentions of State to issue notice
afresh by a competent officer i.e., competent qua Tanks Rules keeping in mind
allusion and elucidation supra, more particularly the principle put in place by
a Hon'ble Full Bench i.e., T.K.Shanmugam principle;
v) If the above exercise is undertaken, axiomatically we preserve all
the rights and contentions of the writ petitioners to respond to the same, to be
noted, this would be vide sub-sub-paragraph (ii) of sub-paragraph (f) of
paragraph 15 of T.K.Shanmugam;
vi) If the above scenario unfurls, the authorities shall consider the
objections and pass appropriate orders vide sub-sub-paragraph (iii) of sub-
paragraph (f) of paragraph 15.
Captioned main WPs disposed of in the aforesaid manner. As the
impugned notices have been set aside, captioned WMPs thereat have become
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W.P.No.13081 and 13085 of 2025
otiose and therefore, the same are disposed of as closed. There shall be no
order as to costs.'
9. In the earlier order dated 22.04.2024, learned State
Government Pleader undertook to take action in accordance with law,
observing the principles of natural justice. This means that the writ
petitioners should be show caused before any action for eviction is
taken against them. Considering the above facts and circumstances of
the case, we deem it appropriate to pass the following order:
9.1 If any encroachment is found in the survey,
action shall be initiated under the Tanks Act by the
appropriate authority in accordance with law;
9.2 Since it is submitted that Survey No.372/1 is a
pond, the appropriate authority shall issue a show cause
notice under 'The Tamil Nadu Protection of Tanks and
Eviction of Encroachment Act, 2007' (hereinafter 'Tanks
Act' for the sake of convenience and clarity);
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9.3 The writ petitioners shall respond to the said
show cause notices within a stipulated period and the said
representations shall be considered by the official
respondents in accordance with law on its own merits
before passing any final order.
10. With the above direction, captioned writ petitions are
disposed of. There shall be no order as to costs. Consequently,
connected writ miscellaneous petitions are closed.
(M.S.,J.) (K.G.T.,J.)
09.04.2025
Index : Yes / No
Neutral Citation : Yes/No
mmi
To
1.The District Collector,
Chengalpattu,
Chengalpattu District.
2.The Tahsildar,
Pallavaram Taluk,
Chengalpattu District.
3.The Commissioner,
Tambaram Municipality,
Tambaram, Chengalpattu – 600 045.
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W.P.No.13081 and 13085 of 2025
M.SUNDAR, J.,
and
K.GOVINDARAJAN THILAKAVADI, J.,
mmi
W.P.Nos.13081 and 13085 of 2025
09.04.2025
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