Madras High Court
J. Udhayakumar vs The Assistant Engineer on 26 February, 2025
Author: M.Sundar
Bench: M.Sundar
W.P. No.6568 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.02.2025
CORAM:
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MRS. JUSTICE K. GOVINDARAJAN THILAKAVADI
W.P.No.6568 of 2025 and W.M.P. No.7230 of 2025
J. Udhayakumar Petitioner
vs.
The Assistant Engineer
Department of Water Resources
Keelpenathur Irrigation Division
Tiruvannamalai Respondent
Writ Petition filed under Article 226 of the Constitution of India
seeking a writ of certiorari calling for the records of the respondent
dated 24.01.2025 made in Form – III issued under Section 6(1) of the
Tamil Nadu Land Encroachment Act, 1905 and quash the same.
For petitioner Mr. K. Venkatasubban
for M/s. Sarvabhauman Associates
For respondent Mr. V. Ravi
Special Government Pleader
Page Nos.1/8
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W.P. No.6568 of 2025
ORDER
[made by M.SUNDAR, J.]
Captioned main 'writ petition' (hereinafter 'WP' for the sake of
brevity) has been filed assailing a 'notice dated 24.01.2025 issued by
the sole respondent' (hereinafter 'impugned notice' for the sake of
convenience and clarity).
2. Mr. K. Venkatasubban, learned counsel of
M/s.Sarvabhauman Associates (Law Firm), adverting to the impugned
notice issued by the sole respondent, submits that it calls upon the
writ petitioner to remove alleged encroachment in Survey No.55
admeasuring 00.89.5 hectare or thereabouts (encroachment to an
extent of 0.04.0 hectare) on the ground that the alleged
encroachment is in a water body (Vhpapd; ePh; gpog;g[g; gFjp).
3. Learned counsel for writ petitioner submits that writ
petitioner has not been show caused.
4. Issue notice to sole respondent.
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5. Mr. V. Ravi, learned Special Government Pleader, accepts
notice for sole respondent and submits that there is encroachment in
the water body and therefore, '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 brevity) has been resorted to.
6. Owing to the limited scope of the captioned main WP,
captioned main WP is taken up in the Admission Board with the
consent of both sides.
7. We carefully considered the submissions of both sides.
8. As regards alleged encroachment and resort to Tanks Act,
procedure to be followed has been laid down by a Hon'ble Division
Bench in T.S. Senthil Kumar vide T.S.Senthil Kumar vs.
Government of Tamil Nadu reported in (2010) 3 MLJ 771: 2010
Writ LR 113:MANU/TN/0281/2010. Paragraph 42 is of relevance
and the same reads as follows:
'42. 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 in Mysore v. J.V. Bhat (supra) and (ii) Scheduled
Caste & Weaker Section Welfare Association v. State of
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Karnataka (supra), 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 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 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
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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.’
9. The aforementioned procedure to be followed has been
reiterated/affirmed by a Hon'ble Full Bench of this Court vide
T.K.Shanmugam's case [T.K.Shanmugam Vs. State of Tamil
Nadu] reported in 2015 (5) LW 397. Sub sub-paragraphs (i) to (iii)
of sub-paragraph (f) of paragraph 15 are of relevance 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 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
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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.'
10. The above means that the writ petitioner ought to have
been show caused and given an opportunity as per what we would
refer to as T.K. Shanmugam principle.
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11. Faced with the above situation, learned State counsel
submitted that the impugned notice shall now be treated as a 'show
cause notice' (hereinafter 'SCN' for the sake of brevity) and
T.K.Shanmugam principle will follow. This submission is recorded.
12. As regards the certiorari prayer, we are not dislodging the
impugned notice but we hold that the impugned notice will now be
treated as SCN vide T.K. Shanmugam principle and the rest of the
procedure laid down in T.S. Senthil Kumar affirmed in
T.K.Shanmugam will follow. Any coercive action will be subject to
and depending on the outcome qua aforereferred procedure to be
followed.
13. Captioned main WP stands disposed of in the aforesaid
manner. Consequently, captioned writ miscellaneous petition thereat
is disposed of as closed. There shall be no order as to costs.
(M.S., J.) (K.G.T., J.)
26.02.2025
cad
Index : Yes/No
NC : Yes/No
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M.SUNDAR, J.
and
K. GOVINDARAJAN THILAKAVADI, J.
cad
To:
The Assistant Engineer
Department of Water Resources
Keelpenathur Irrigation Division
Tiruvannamalai
26.02.2025
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