Madras High Court
Arul Raj vs The District Collector on 2 June, 2025
Author: M.Sundar
Bench: M.Sundar
W.P.No.17132 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.06.2025
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MR.JUSTICE HEMANT CHANDANGOUDAR
W.P.No.17132 of 2025
&
W.M.P No.19422 of 2025 in W.P.No.17132 of 2025
Arul Raj ... Petitioner
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
Writ Petition filed under Article 226 of The Constitution of India
praying to issue a Writ of Mandamus forbearing the respondents not to evict
the petitioner from said premises and further direct the second respondent to
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W.P.No.17132 of 2025
consider the petitioner's representation dated 12.03.2025 to issue patta in
respect of property in Survey No.372/1 situated at Shop No.31, Railway
Station Raod, Pallavaram, Chengalpattu District.
For Petitioner : Mr.N.Edwin Jeyakumar
For Respondents : Mr.T.K.Saravanan,
Additional Government Pleader
for R1 and R2
Mr.P.Srinivas
Standing counsel for R3
ORDER
[Order of the Court was made by M.SUNDAR, J.,]
Captioned writ petition is filed for the issuance of a writ of
mandamus forbearing the respondents not to evict the petitioner from the
subject premises and for a consequential direction to the second respondent
to consider the petitioner's representation 12.03.2025 for issuance of patta in
respect of property in Survey No.372/1 situated at Shop No.31 at Railway
Station Road, Pallavaram, Chengalpattu District.
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W.P.No.17132 of 2025
2. It is the case of the writ petitioner that Shop No.31 was purchased
by the petitioner and from the date of purchase, he is in possession and
enjoyment of the same and he has also applied for patta. The petitioner had
also sent representation dated 12.03.2025 for issuance of patta to the
respondents. However, no action has been taken by the respondents at their
end. The petitioner is under threat of eviction from the subject premises and
this has necessitated the writ petitioner to file the captioned writ petition.
3. Issue notice to the respondents.
4. Mr.T.K.Saravanan, learned Additional Government Pleader accepts
notice for the R1 and R2 and Mr.P.Srinivas, learned Standing counsel
accepts notice for R3.
5. Owing to the limited scope of writ petition, with the consent of
both sides, the main writ petition is taken up at the admission stage.
6. Learned Additional Government Pleader submits that in the earlier
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W.P.No.17132 of 2025
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:
'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 petition is also covered by an 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 petition, no
notice was served on the writ petitioner.
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W.P.No.17132 of 2025
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
W.P.Nos.11767 and 11777 of 2025
&
W.M.P Nos.13326 and 13339 of 2025
Ganesan ... Petitioner
W.P.No.11767 of
2025
Mohammed Saleem Thekku ... Petitioner
W.P. No.11777 of
2025
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
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W.P.No.17132 of 2025
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.
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
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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].
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.
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
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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 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
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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
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.
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Either way, the alleged encroachers have to be put on notice/show-caused
and opportunity has to be given.
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 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 by observing the
principles of natural justice. This means that the writ petitioner should be
show caused before any action for eviction is taken against him.
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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 to writ
petitioner and/or any other alleged encroacher/s under 'The
Tamil Nadu Protection of Tanks and Eviction of Encroachment
Act, 2007' (hereinafter 'Tanks Act' for the sake of convenience
and clarity);
9.3 The writ petitioner shall respond to the said show
cause notice within a stipulated period and the said
representation shall be considered by the official respondents in
accordance with law on its own merits before passing any final
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order.
10. With the above direction, captioned writ petition is disposed of.
There shall be no order as to costs. Consequently, connected writ
miscellaneous petition is closed.
(M.S.,J.) (H.C.,J.)
02.06.2025
Index : Yes / No
Neutral Citation : Yes / No
gpa
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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M.SUNDAR, J.,
and
HEMANT CHANDANGOUDAR, J.,
gpa
02.06.2025
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