Madras High Court
D.Gajalakshmi vs The District Collector on 22 April, 2025
Author: M.Sundar
Bench: M.Sundar
W.P.No.14185 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.04.2025
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI
W.P.No.14185 of 2025
&
W.M.P Nos.15938 and 15940 of 2025
D.Gajalakshmi
W/o.S.Dheenadhayalan ... Petitioner
vs.
1. The District Collector
Kallakurichi District
Kallakurichi
2. The Revenue Divisional Officer, Kallakurichi
/The Chairperson/Convener
Divisional Monitoring Committee (Encroachment)
Kallakurichi
Kallakurichi District
3. The Tahsildar
Kallakurichi Taluk
Kallkurichi District
4. The Assistant Engineer
Water Resources Department (Irrigation Division)
P.W.D Kallkurichi
Page Nos.1/11
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W.P.No.14185 of 2025
Kallakurichi District
5. The Assistant Electrical Engineer (Town)
TANGEDCO
Kallkurichi
Kallkurichi District ... Respondents
Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorari calling for the records related to the
“Eviction Order No.Nil dated 09.04.2025 passed by the fourth respondent
and quash the same.
For Petitioner : Mr.S.R.Rajagopal
for Mr.R.M.Makesh Kumarvel
For Respondents : Mr.T.K.Saravanan
Additional Government Pleader
for R1 to R4
Mr.Swami Subramanian
Standing counsel for R5
ORDER
[Order of the Court was made by M.SUNDAR, J.,]
Captioned main 'Writ Petition' ['WP' for the sake of brevity] has been
filed with a prayer for issuance of a writ of certiorari qua an order dated
09.04.2025 made by R4.
2. Short facts are that one Ms.K.Manimegalai filed W.P 14239 of 2024
on 21.05.2024 assailing an eviction order dated 17.05.2024 made by R5 in
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the captioned matter; that pending writ petition, Ms. K.Manimegalai died;
that the date of demise is 03.11.2024; that W.P.No.14239 of 2024 was taken
up for final disposal on 18.03.2025 but the counsel on record
Mr.R.M.Makesh Kumarvel did not bring to the notice of this Court the
factum of demise of Ms.K.Manimegalai; that it is now contended that this is
owing to lapse in communication; that writ petition (W.P.No.14239 of 2024
along with WMP thereat) came to be disposed of by this Court on
18.03.2025 inter alia holding that T.K.Shanmugam principle has to be
followed by construing the impugned notice thereat as a 'show-cause notice'
['SCN']; that writ petitioner in the captioned matter (D.Gajalakshmi,
daughter of Manimegalai) sent objections (dated 28.03.2025) to SCN; that
considering the objections, R5 made the impugned order.
3. Today, Mr. S.R.Rajagopal, learned Senior counsel appearing on
behalf of Mr.R.M.Makesh Kumarvel, counsel on record for writ petitioner
who is before us, submits that factum of demise of Ms.K.Manimegalai on
03.11.2024 was not brought to the notice of this Court by his instructing
counsel solely owing to lapse in communication between client's family
(writ petitioner in captined matter) and the lawyer. We refrain from delving
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into this question further and we deem it appropriate to plough into the main
matter as it can otherwise result in a case of 'missing the woods for the trees'
4. One of the main contentions in writ petitioner's campaign against
the impugned order is that the SCN was issued to a dead person.
5. Issue notice to respondents.
6. Mr.T.K.Saravanan, learned Additional Government Pleader accepts
notice for all five respondents and learned State counsel submits that when
the SCN was issued, Ms.K.Manimegalai was alive and the writ petitioner
has chosen to respond.
7. Considering the limited landscape of the captioned main WP, with
the consent of learned counsel on both sides, main WP was taken up and
heard out in the Admission Board.
8. We find that the point that SCN was issued to a dead person has
been urged in the aforesaid response dated 28.03.2025. Learned Senior
counsel, on instructions, submits that this point would continue to be pressed
into service though counsel on record has failed to bring to the notice of this
Court demise of Manimegalai. Therefore, we deem it appropriate to give a
quietus to the matter by interfering with the impugned order i.e., setting
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aside the same on the short dead person point and preserving the rights of
the State to issue notice to legal heirs of Manimegalai and follow
T.K.Shanmugam principle.
9. Before we proceed further, we make it clear that by referring to
T.K.Shanmugam principle, we refer to the principle laid down by Hon'ble
Full Bench in T.K.Shanmugam Vs. The State of Tamil Nadu and others
reported in 2015 SCC OnLine Mad 9343. Relevant paragraphs are sub-sub-
paragraphs (i), (ii) and (iii) of sub-paragraph (f) of paragraph No.15 which in
turn reiterates paragraph 42 of T.S.Senthil Kumar {T.S.Sentil Kumar Vs.
Government of Tamil Nadu and others reported in 2010 SCC OnLine Mad
1347}. For convenience, we deem it appropriate to set out this sub-sub-
paragraphs (i), (ii) and (iii) of sub-paragraph (f) of paragraph No.15, we do
so and the same 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
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various decisions including the decision in the case of Sivakasi Region
Tax Payers Association (supra), disposed of the Writ Petitions without
declaring the 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
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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.'
10. In the light the narrative, discussion and dispositive reasoning set
out supra, the following order is made:
i) The impugned order being order dated 09.04.2025
made by R4 is set aside on the short and sole point that
Ms.K.Manimegalai is no more but the impugned order has been
made on the basis of Ms.K.Manimegalai being show-caused;
ii) Though obvious we make it clear that all other
questions are left open with regard to both sides;
iii) R4 is now at liberty to issue notice under 'The Tamil
Nadu Protection of Tanks and Eviction of Encroachment Act,
2007' (hereinafter 'Tanks Act' for the sake of convenience and
clarity) afresh to the legal heirs of Ms.K.Manimegalai as per the
Legal Heir Certificate dated 19.12.2024 being Certificate No.
TN-7202412051242, which has been enclosed qua typed-set of
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the writ petition;
iv) The legal heirs of Ms.K.Manimegalai can send their
response as per T.K.Shanmugam principle and as all questions
are left open, it is open to the legal heirs to raise the objections
which have been raised by writ petitioner in 28.03.2025
objections also;
v) As per sub-sub-paragraph (iii) of paragraph (f) of
paragraph 15, orders shall be made after considering the
objections;
vi) Though obvious we make it clear that aforementioned
drill shall be done denovo untrammeled by intervening
proceedings;
vii) Any further coercive action shall be subject to and
depending on the orders to be made in aforesaid manner by R4
by following T.K.Shanmugam principle.
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Captioned WP disposed of in the aforesaid manner. As we have made
it clear that further coercive action (if any and if that be so) is subject to
orders to be made denovo, captioned WMPs have become otiose and the
same are disposed as closed. We refrain from imposing costs.
(M.S.,J.) (K.G.T.,J.)
22.04.2025
Index : Yes/No
Speaking order/Non speaking order
Neutral Citation: Yes/No
gpa
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To
1. The District Collector
Kallakurichi District
Kallakurichi
2. The Revenue Divisional Officer, Kallakurichi
/The Chairperson/Convener
Divisional Monitoring Committee (Encroachment)
Kallakurichi
Kallakurichi District
3. The Tahsildar
Kallakurichi Taluk
Kallkurichi District
4. The Assistant Engineer
Water Resources Department (Irrigation Division)
P.W.D Kallkurichi
Kallakurichi District
5. The Assistant Electrical Engineer (Town)
TANGEDCO
Kallkurichi
Kallkurichi District
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M.SUNDAR, J.,
and
K.GOVINDARAJAN THILAKAVADI, J.,
gpa
22.04.2025
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