Madras High Court
M.Mayilsamy vs The Executive Engineer on 23 January, 2025
Author: M.Sundar
Bench: M.Sundar
W.P.No.1935 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.01.2025
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MR.JUSTICE K.RAJASEKAR
W.P.No.1935 of 2025
and
W.M.P.No.2222 of 2025
M.Mayilsamy
S/o.Muthusamy ... Petitioner
Vs.
1. The Executive Engineer
Parambikulam - Aliyar Project Scheme
Water Resources Organization
Makkinampatti
Pollachi - 642 003
Coimbatore District.
2. The Assistant Engineer
Parambikulam - Aliyar Project Scheme
Water Resources Organization
Palladam, Palladam Taluk
Tiruppur District.
3. The Assistant Engineer
Parambikulam - Aliyar Project Scheme
Water Resources Organization
Senjeripudur, Sulur Taluk
Coimbatore District. ... Respondents
Page Nos.1/10
https://www.mhc.tn.gov.in/judis
W.P.No.1935 of 2025
Prayer :
Writ Petition filed under Article 226 of The Constitution of India
praying to issue a Writ of Certiorari calling for the records relating to
impugned notice issued by the 3rd respondent in Form-III dated 10.12.2024
and quash the same.
For Petitioner : Ms.R.Hemalatha
For Respondents : Mr.V.Ravi
Special Government Pleader
ORDER
[Order of the Court was made by M.SUNDAR, J.,]
Captioned main 'writ petition' (hereinafter 'WP' for the sake of
brevity) has been filed with a certiorari prayer assailing a notice dated
10.12.2024. This notice has been issued by R3 (Assistant Divisional
Engineer - Water Resources Organization) and the same shall be referred to
as 'impugned notice' for the sake of convenience and clarity.
2. Learned counsel for writ petitioner submits that the impugned
notice directly calls upon the writ petitioner to remove the alleged
encroachment within 15 days without even show causing the writ petitioner.
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3. Issue notice.
4. Mr.V.Ravi, learned Special Government Pleader, accepts notice for
R1 to R3.
5. Learned State counsel, on instructions, submits that survey has been
done, encroachment has been noticed and steps are underway.
6. Owing to the limited scope of the captioned main WP, captioned
main WP was taken up in the Admission Board with the consent of learned
counsel on both sides.
7. In the case on hand, the impugned notice issued by R3 directly calls
upon the alleged encroacher to remove the encroachment within 15 days
without 'show cause notice' (hereinafter 'SCN' for the sake of brevity).
Therefore, we are of the considered view that it would serve the ends of
justice, if the impugned notice is directed to be treated as SCN and if the
writ petitioner is given an opportunity to send a representation (if so advised
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and if so desired) so that the authority or officer concerned can pass final
orders considering the cause shown.
8. The alleged encroachment being in water body, the eviction
proceedings will obviously be 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}
and 'Tamil Nadu Protection of Tanks and Eviction of Encroachment Rules,
2007' {hereinafter 'Tanks Rules' for the sake of convenience, clarity and
brevity}. As regards Tanks Act and Rules thereunder, a Hon'ble Full bench
in T.K.Shanmugam case {T.K.Shanmugam Vs. State of Tamil Nadu [2015
(5) LW 397]} has made it clear that alleged encroachers should be put on
notice and relevant paragraph in T.K.Shanmugam case is paragraph No.15
which reads 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
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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
(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
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"public interest" shall be implicitly borne in mind.(emphasis laid)
(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.
(emphasis laid)
(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.
(emphasis laid)
(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
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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 In the light of the narrative thus far, following order is passed:
(i) Impugned notice dated 10.12.2024 shall now be
treated as SCN;
(ii) It is open to writ petitioner to send objection /
response to SCN (if so advised and if so desired) within a
period of two weeks from today i.e., on or before
06.02.2025;
(iii) If the writ petitioner sends objection / response
as above, R3 shall pass final orders after considering the
objection / response;
(iv) If the writ petitioner does not send any
objection / response by 06.02.2025, it is open to
respondents to proceed further in accordance in law;
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(v) Though obvious, it is made clear that any
further action will be subject to and depending on final
orders to be made by concerned authorities, if objection /
response is sent.
Captioned main WP disposed of in the aforesaid manner.
Consequently, Writ Miscellaneous Petition thereat disposed of as closed.
There shall be no order as to costs.
(M.S.,J.) (K.R.S.,J.)
23.01.2025
Index : Yes / No
Neutral Citation : Yes / No
Speaking order / Non-speaking order
mk
https://www.mhc.tn.gov.in/judis
To
1. The Executive Engineer
Parambikulam - Aliyar Project Scheme
Water Resources Organization
Makkinampatti
Pollachi - 642 003
Coimbatore District.
2. The Assistant Engineer
Parambikulam - Aliyar Project Scheme
Water Resources Organization
Palladam, Palladam Taluk
Tiruppur District.
3. The Assistant Engineer
Parambikulam - Aliyar Project Scheme
Water Resources Organization
Senjeripudur, Sulur Taluk
Coimbatore District.
https://www.mhc.tn.gov.in/judis
M.SUNDAR, J.,
and
K.RAJASEKAR, J.,
mk
23.01.2025
(2/2)
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