Partly allowed

Rasu, S/O.Arumugam, v. the Assistant Engineer

Madras HC12 Sept 2018WP(MD)/17885/2017

Case brief

AI extract

What is this about?

The Madras High Court held that an order removing encroachment issued without prior notice violates the Tamil Nadu Land Encroachment Act, 1905. The petition was partly allowed, directing the Assistant Engineer to issue a Form II notice based on survey findings before proceeding.

What did the court decide?

Impugned notice set aside; liberty granted to issue Form II notice to petitioner giving two weeks to submit explanation before proceeding.

Rasu, S/O.Arumugam, Vs the Assistant Engineer — Land Acquisition | Madras HC (2018)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED : 12.09.2018

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CORAM :

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THE HONOURABLE MR.JUSTICE T.RAJA AND

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THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY

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W.P(MD)No.17885 of 2017

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W.M.P.(MD) No.14417 of 2017

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Rasu

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vs.

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The Assistant Engineer, Public Works Department/ Water Resources Department (Kallanai Canal Division) Edaiyathi, Orathanadu Taluk, Thanjavur District.

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Arumugam ... Respondents

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Prayer : Writ Petition filed under Article 226 of the Constitution of India, for issuance of Writ of Certiorarified Mandamus to call for the records relating to the impugned order dated 26.08.2017 passed by the 1^st respondent herein and quash the same and consequently direct to hear the petitioner by issuing show cause notice regarding the alleged encroachment.

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For Petitioner : Mr.D.R.Murugesan For Respondents : Mr.V.R.Shanmuganathan for R1 Special Government Pleader Mr.N.Balakrishnan for R2

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ORDER

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(Order of the Court was made by T.RAJA, J.)

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This writ petition is directed against the impugned proceedings dated 26.08.2017 issued by the Assistant Engineer, Public Works Department/Water Resources Department (Kallanai Canal Division), Edaiyathi, Orathanadu Taluk, Thanjavur District, calling upon the petitioner to remove the encroachment on the ground that when the petitioner was not issued with any notice alleging encroachment, straight away an order of removal, which is impugned herein, cannot be issued. This is against the ratio laid down by this Court in T.S.Senthilkumar v. The Government of Tamil https://hcservices.ecourts.gov.in/hcservices/ Nadu and others reported in 2010 WLR 113 , wherein, it is held in Paragraph No.20(f)(1), which is given as under:

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“(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 Organisation, 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.”

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Mr.V.R.Shanmuganathan and Mr.N.Balakrishnan appearing for the respondents fairly submitted that the petitioner is entitled to have a prior notice before the impugned order directing him to remove the encroachment and vacate the place in question is issued.

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Learned counsel for the petitioner drawing our notice to an order dated 21.07.2017 passed by this Court in W.P.(MD) No.3840/2017 filed by the second respondent herein, stated that, a specific direction was issued by this Court to the Executive Engineer to give notice to all the encroachers and after giving them reasonable opportunity to submit their case, only then, to proceed further for removal of encroachment, if the Executive Engineer satisfied that there has been encroachment. Since there is no notice issued, the impugned order may be treated as notice and the petitioner may be given two weeks time to submit his explanation to the impugned notice.

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Learned Special Government Pleader also submitted that this Court has already held in T.S.Senthilkumar (supra) in Paragraph No.20(f)(1) that notice should also be issued to the alleged encroachers to the effect that survey indicates that the place in his/her occupation is an encroachment and notice in Form II may be issued.

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We are satisfied that the respondents should proceed against the alleged encroachers, after issuing notice on the basis of the survey report indicating the nature of encroachment and the extent of encroachment and thereafter Form II notice, under Rule 6 of the Tamil Nadu Land Encroachment Act, 1905 to be issued. In the present case, notice in Form III alone has been issued. Therefore, we grant liberty to the Assistant Engineer, first respondent herein, to issue Form II notice on the basis of the survey report indicating the nature and extent of encroachment and thereafter issue notice in Form II and thereafter proceed.

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In view of the above, the writ petition is partly allowed by setting aside the impugned notice and the first respondent is https://hcservices.ecourts.gov.in/hcservices/ directed to issue Form II notice and after receiving the said Form II notice, the petitioner is given two weeks time to submit his

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explanation, if any and on the basis of the explanation to be given by the petitioner, the first respondent can proceed. No costs. Consequently connected Miscellaneous Petition is closed.

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Sd/-

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Assistant Registrar(CS-II)

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/True Copy/

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Sub Assistant Registrar(CS-IV)

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The Assistant Engineer, Public Works Department/ Water Resources Department (Kallanai Canal Division) Edaiyathi, Orathanadu Taluk, Thanjavur District.

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+1cc to Mr.D.R.Murugesan, Advocate Sr.No.84153 +1cc to Spl.Government Pleader Sr.No.84334

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VB/RSK/SAR4/08.10.2018/3P/4C

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W.P(MD)No.17885 of 2017 and W.M.P.(MD) No.14417 of 2017 12.09.2018

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https://hcservices.ecourts.gov.in/hcservices/

Rasu, S/O.Arumugam, v. the Assistant Engineer

Case brief

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Rasu, S/O.Arumugam, v. the Assistant Engineer

Case brief

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