Madras High Court
P.Murugavel vs The District Collector on 17 June, 2025
Author: M.Sundar
Bench: M.Sundar
W.P.No.18492 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.06.2025
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MR.JUSTICE HEMANT CHANDANGOUDAR
W.P.No.18492 of 2022
P.Murugavel ... Petitioner
vs.
1. The District Collector
Salem
Salem District
2. The Revenue Divisional Officer
Aathur
Salem District
3. The Tahsildar
Peddanaaickenpalayam
Salem
Salem District
4. The Executive Engineer
Public Works Department
Water Resources Department
Sarabanga Basin Circle
Salem
5. R.Ganesan
Page Nos.1/8
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W.P.No.18492 of 2022
6. S.Pazhanivel
7. S.Perumal
8. Rajamani
9. Periammal
10. Chandran
11. Annakodi ... Respondents
Writ Petition filed under Article 226 of the Constitution of India
seeking a writ of mandamus, directing the respondents 1 to 4 to remove the
illegal encroachment made by the Respondents 5 to 11 in the water body
land admeasuring 41.5 ares comprised in S.No.36 and land admeasuring 47
ares comprised in S.No.48, Gopalapuram Village, Peddanaickenpalayam
Taluk, Salem District.
For Petitioner : Mr.M.Manohar
For Respondents : Mr.T.K.Saravanan
Additional Government Pleader
for R1 to R4
ORDER
[Order of the Court was made by M. SUNDAR, J.]
Subject matter of captioned main 'Writ Petition' ['WP' for the sake of
brevity] is alleged encroachment in 'odai poramboke in Survey Nos.36 and
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48 admeasuring 41.5 ares and 47 ares respectively in Gopalapuram Village,
Peddanaickenpalayam Taluk, Salem District' {'said water body' for the sake
of convenience and brevity} made by R5 to R11 (private respondents).
2. Request for removal of afore-referred alleged encroachment has
not yielded results and that has necessitated captioned main WP is the
submission of learned counsel for writ petitioner.
3. Issue notice to official respondents [R1 to R4]. Mr.T.K.Saravanan,
learned Additional Government Pleader accepts notice for official
respondents. Learned State counsel submits that survey is in the anvil and
depending on the survey outcome, action for removal of encroachment (if
found) will be initiated vide '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).
4. Though obvious, this Court deems it appropriate to make it clear
that due process of law vide Tanks Act necessarily means adherence to
procedure put in place by a Hon'ble Full Bench of this Court vide
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T.K.Shanmugam case [T.K.Shanmugam Vs. State of Tamil Nadu] reported
in 2015 (5) LW 397. As regards T.K. Shanmugam principle, relevant
paragraphs are sub sub-paragraphs (i) to (iii) of subparagraph (f) of
paragraph 15 and the same 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
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) .....
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(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.'
To be noted, T.K.Shanmugam reiterates T.S.Senthil Kumar principle
[T.S.Senthil Kumar Vs. Government of Tamil Nadu reported in (2010) 3
MLJ 771] rendered by Hon'ble Coordinate coequal Division Bench.
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5. The above means that the private respondents (R5 to R11) who are
alleged encroachers and / or any other encroacher/s will be put on
notice/show caused, given an opportunity and action will be subject to and
depending on cause shown / response of noticee/s. Therefore, captioned
main WP is taken up with the consent of learned counsel for writ petitioner
and State counsel, dispensing with notice to private respondents. Though
obvious, it is made clear that this order does not touch upon the rights of
private respondents and / or any other noticee/s under the Tanks Act. This
means that all the rights and contentions of private respondents and/or any
other noticee/s stand preserved for responding suitably when show caused /
visited with notices. Though obvious, for the sake of specificity, it is
clarified that this Court, in instant order, has not expressed any view or
opinion one way or the other regarding alleged encroachment qua said water
body.
6. In the light of the narrative thus far, captioned main WP is disposed
of in the aforesaid manner, recording the stated position of learned State
counsel that survey will be done within a period of six weeks from today,
i.e., on or before 29.07.2025 and action if any, under the Tanks Act will be
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commenced as expeditiously as the business of official respondents would
permit but in any event within a period of six weeks therefrom i.e., on or
before 09.09.2025. There shall be no order as to costs.
(M.S.,J.) (H.C.,J.)
17.06.2025
Index : Yes / No
Neutral Citation : Yes / No
Speaking / Non-speaking
gpa
To
1. The District Collector
Salem
Salem District
2. The Revenue Divisional Officer
Aathur
Salem District
3. The Tahsildar
Peddanaaickenpalayam
Salem
Salem District
4. The Executive Engineer
Public Works Department
Water Resources Department
Sarabanga Basin Circle
Salem
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M.SUNDAR, J.,
and
HEMANT CHANDANGOUDAR, J.,
gpa
17.06.2025
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