Madras High Court

Balakrishnan .M vs State Of Tamil Nadu on 3 January, 2025

Author: M.Sundar

Bench: M.Sundar

                                                                                 W.P.No.39956 of 2024

                                     IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                       DATED : 03.01.2025

                                                               CORAM

                                       THE HONOURABLE MR.JUSTICE M.SUNDAR
                                                      and
                                      THE HONOURABLE MR.JUSTICE K.RAJASEKAR

                                                      W.P.No.39956 of 2024
                                                              and
                                                     W.M.P.No.43264 of 2024

                     Balakrishnan .M                                          ... Petitioner

                                                                   Vs.

                     1.           State of Tamil Nadu
                                  Rep. by the District Collector
                                  Chennai District.

                     2.           The Revenue Divisional Officer
                                  (North Chennai Division)
                                  Tondiarpet, Chennai-81.

                     3.           The Tahsildar
                                  Thiruvotriyur Taluk
                                  No.304/936, T.H.Road
                                  Ellaiamman Koil Street
                                  Thiruvotriyur, Chennai-19.

                     4.           The Zonal Officer, Zone-1
                                  Greater Chennai Corporation
                                  Thiruvotriyur, Chennai-19.


                     Page Nos.1/13


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                                                                                     W.P.No.39956 of 2024

                     5.           The Executive Engineer, Zone-1
                                  Greater Chennai Corporation Zonal Office-01
                                  No.945, T.H.Road, Thiruvottiyur,
                                  Chennai-19.                                       ... Respondents

                     Prayer :
                                  Writ Petition filed under Article 226 of The Constitution of India
                     praying to issue a Writ of Mandamus directing or forbearing the respondents
                     from interfering with the peaceful possession and enjoyment of petitioner's
                     property at Door No.23/17, Plot No.3, Thiruvallur Nagar 1st Street, Ennore,
                     Chennai-600 057 comprised in Survey No.20 of Kathivakkam Village,
                     Tiruvotriyur Taluk (formerly Saidapet Taluk) Chennai District (formerly
                     Chengalpet District) except by due process of law.


                                        For Petitioner    :    Mr.Manoj Sreevalsan
                                        For Respondent    :    Mr.T.K.Saravanan
                                                               Government Advocate, for R1 to R3
                                                               Mr.G.T.Subramanian
                                                               Standing Counsel
                                                               for R4 and R5



                                                          ORDER

[Order of the Court was made by M.SUNDAR, J.,]

Captioned main 'Writ Petition' {hereinafter 'WP' for the sake of

brevity} pertains to 'property at Door No.23/17, Plot No.3, Thiruvallur

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Nagar 1st Street, Ennore, Chennai-600 057 comprised in Survey No.20 of

Kathivakkam Village, Tiruvotriyur Taluk (formerly Saidapet Taluk) Chennai

District (formerly Chengalpet District)' {hereinafter 'said property' for the

sake of brevity, convenience and clarity}.

2. A 'Show Cause Notice' {hereinafter 'SCN' for the sake of brevity}

under Section 128 of TNULB Act signed on 26.08.2023 by R5 and the

Regional Deputy Commissioner of Greater Chennai Corporation was issued

to the writ petitioner. This notice bears reference 'Notice

No.Z.O.X.C.No./50/2023' and the same shall hereinafter be referred to as

'said SCN'. Writ petitioner has shown cause by responding to said SCN

vide response dated 08.09.2023 enclosing supporting documents as

enclosures. Notwithstanding this position, writ petitioner is under pain of

dispossession and that has necessitated the filing of captioned main WP is

learned counsel's say.

3. Issue notice to respondents.

4. Mr.T.K.Saravanan, learned Government Advocate accepts notice

for respondents 1 to 3 and Mr.G.T.Subramanian, learned Standing Counsel

accepts notice for R4 and R5.

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5. Mr.G.T.Subramanian, learned Standing Counsel for Greater

Chennai Corporation who has accepted notice for R4 and R5 submits that

the matter pertains to 'Survey No.20 of Kathivakkam Village, Tiruvotriyur

Taluk (formerly Saidapet Taluk) Chennai District (formerly Chengalpet

District)' {hereinafter 'said survey number' for the sake of brevity}. Learned

Standing Counsel for Greater Chennai Corporation submits that a similar

SCN (similar to said SCN) issued to three other persons in different door

numbers in the same survey number was assailed by them vide

W.P.No.39762 of 2024 and the same came to be disposed of by a Hon'ble

Division Bench (Vacation Court) on 27.12.2024. We ferreted out the order

from the official website of this Court and a scanned reproduction of the

same is as follows:

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6. Owing to the limited scope of the captioned main WP, main WP

was taken up in the Admission Board with the consent of both sides.

7. A careful perusal of the afore-referred order dated 27.12.2024 in

W.P.No.39762 of 2024 brings to light that only difference qua captioned WP

is, the writ petitioner in the captioned WP has responded to said SCN.

Therefore, recording this position (response dated 08.09.2023 which has

been captured supra), we hold that the same order i.e., order dated

27.12.2024 in W.P.No.39762 of 2024 will govern the captioned WP also.

8. Be that as it may, in addition to the aforementioned earlier order

made by Hon'ble Division Bench governing the captioned WP,

Mr.T.K.Saravanan, learned State Counsel submits that action under '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} is envisaged and necessary preliminary notices have

been issued. If action under Tanks Act is to be initiated, though obvious we

make it clear that procedure laid down by Hon'ble Full Bench in

T.K.Shanmugam case {T.K.Shanmugam Vs. State of Tamil Nadu [2015

(5) LW 397]} more particularly sub sub-paragraphs (i) to (iii) of sub-

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paragraph (f) of paragraph No.15 has to be followed. To be noted,

paragraph 15(f)(i)(ii) and (iii) of T.K.Shanmugam case 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 and issued the following directions vide judgment dated 10.02.2010, reported in 2010 3 MLJ 771.

(a) ...................

(b)...................

(c)...................

(d)...................

(e)...................

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(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.'

9. This means that writ petitioner will be put on notice / show

caused under Tanks Act also. If such a course is adopted, this order will

neither impede nor serve as impetus for either of the parties.

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Captioned WP is disposed of in the above said manner.

Consequently, captioned Writ Miscellaneous Petition is disposed of as

closed. There shall be no order as to costs.

(M.S.,J.) (K.R.S.,J.) 03.01.2025

Index : Yes / No Neutral Citation : Yes / No Speaking order / Non-speaking order mk

1. State of Tamil Nadu Rep. by the District Collector Chennai District.

2. The Revenue Divisional Officer (North Chennai Division) Tondiarpet, Chennai-81.

3. The Tahsildar Thiruvotriyur Taluk No.304/936, T.H.Road Ellaiamman Koil Street Thiruvotriyur, Chennai-19.