Writ petition challenging eviction notice from water body dismissed. Court directed respondents to remove encroachment within one month, preserve trees, and report with photographs.
Eviction notice dismissed; directed to remove encroachment by 01.12.2020; to preserve trees and submit report with photographs.
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W.P.(MD)No.14609 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 28.10.2020 CORAM THE HON'BLE Mr. JUSTICE N.KIRUBAKARAN AND THE HON'BLE Mr. JUSTICE B.PUGALENDHI W.P.(MD)No.14609 of 2020 & W.M.P.(MD)Nos.12262 and 12265 of 2020
A.Thirumurugasamy .. Petitioner
Vs.
1.The District Collector, Dindigul District, Dindigul.
2.The Revenue Divisional Officer, Office of the Revenue Divisional Officer, Palani Revenue Division, Palani, Dindigul District.
3.The Tahsildar, Oddanchathiram Taluk Office, Oddanchathiram, Dindigul District.
4.The Block Development Officer, Oddanchathiram Panchayat Union, Oddanchathiram, Dindigul District.
5.The President, Vadakadu Village Panchayat, Oddanchathiram Taluk, Dindigul District. .. Respondents
Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorarified Mandamus, calling for the records pertaining to the impugned order issued by the fifth respondent, dated 06.10.2020, quash the same as illegal and unconstitutional and consequently, forbearing the respondents 1 to 5 from in any way constructing any water storage tank by laying the water channel through the petitioner's property, measuring about 2.31.0 Hectares, situated in S.No.36/1 of Vadakadu Village, Oddanchathiram Taluk, Dindigul District, on the basis of the proceedings issued by the third respondent in Na.Ka./2002/B3, dated 24.12.2003.
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For Petitioner : Mr.C.Gangai Amaran For R1 to R3 : Mr.K.Mu.Muthu Additional Government Pleader For R4 and R5 : Ms.Vaishnavi Government Advocate
ORDER
(Order of the Court was made by N.KIRUBAKARAN, J.)
The petitioner has filed the present Writ Petition challenging the eviction notice, dated 06.10.2020, issued by the fifth respondent, to remove the encroachment made by him and others in the water body viz., Kuttai Poramboke , as per the directions of this Court, dated 16.03.2020, made in W.P.(MD)Nos.5483 and 5488 of 2020, filed by the petitioner and one Velusamy.
2.Heard the learned counsel appearing for the parties and perused the materials available on record.
3.Admittedly, the property comprised in S.No.36/1, measuring an extent of 2.31.0 Hectares has been classified as Village Puddle [ Kuttai ], situated at Vadakadu Village, Oddanchathiram Taluk, Dindigul District. Earlier, attempts have been made to remove the petitioner and others, who have encroached upon the said water body, which compelled the petitioner and the said Velusamy to file W.P. (MD)No.20490 of 2019 and this Court, by order dated 25.09.2019, directed the third respondent to conduct a proper survey after issuing notice to the parties and proceed in accordance with law. Even before filing of W.P.(MD)No.20490 of 2019, W.P.(MD)No.4886 of 2019 was filed and the said Writ Petition was disposed of on 01.03.2019. Subsequently, a survey was conducted and thereafter, the Tahsildar has passed an order on 28.01.2020. The relevant portion of the proceedings, dated 28.01.2020, is extracted as follows:-
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'' https://hcservices.ecourts.gov.in/hcservices/ egHfSf ; F njhptpf ; fg ; gLfpwJ.
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4.From the above, it is clear that as per the order passed by this Court in W.P.(MD)No.20490 of 2019, dated 25.09.2019, the third respondent - Tahsildar, Oddanchathiram Taluk, Dindigul District, conducted inspection after giving notice to the parties. Thereafter, the fourth respondent - Block Development Officer, Oddanchathiram Panchayat Union, Oddanchathiram, Dindigul District, has informed the fifth respondent, vide communication, dated 17.02.2020, that the inspection was conducted with regard to S.No.36/1, which is classified as water body and boundary stones have been laid. Since the water channels have been choked, encroachment has to be cleared, so as to augment storage of the water under the Mahatma Gandhi National Rural Employment Guarantee Scheme [MGNREGS].
5.Subsequently, the petitioner and the said P.Velusamy filed writ petitions in W.P.(MD)Nos.5483 and 5488 of 2020, seeking to forbear the respondents from in anyway constructing any water storage tank by laying the water channel through the property measuring about 2.31.0 Hectares, situated in S.No.36/1, Vadakadu Village, Oddanchathiram Taluk, Dindigul District, based on the proceedings issued by the third respondent - Tahsildar, Oddanchathiram, dated 24.12.2003. The said writ petitions were dismissed by this Court, vide order, dated 16.03.2020. Paragraph 6 of the said order reads as follows:-
''6.Incidentally, it is also admitted before this Court that the respondents have not so far initiated action for the removal of encroachment by taking action in the manner known to law. In this case, it is admitted that the property is under the Control of local body. Therefore, it is open to the respondent to initiate action under the Land Encroachment Act to evict the petitioners by following the procedure. In case the water body vest with PWD or ought to be treated as tank under the control of PWD, it is also open to the respondents to seek eviction of encroachment by resorting to the provisions of Tamilnadu Protection of Tanks and Eviction of Encroachment Act 2007 and Rules. Since it is a case where the encroachment of water body is not in dispute, this Court direct the respondents to observe the procedure as contemplated in the relevant statute in the manner indicated by this Court in several judgments and see that the petitioners are evicted from the water body and that the pond/kuttai is restored within a period of six months from the date of receipt of a copy of this order.''
6.After dismissal of the said Writ Petitions only, the present notice for removal of encroachment has been issued by the fifth respondent on 06.10.2020.
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7.A close scrutiny of the records filed before this Court would show that the petitioner has been making every attempt to see that the encroachment made by him in the water body is not removed. Admittedly, the property comprised in S.No.36/1, measuring an extent of 2.31.0 Hectares is a Puddle [ Kuttai ]. There is no document produced by the petitioner to show that he is the owner of the property. The place where the water body is situated, should be used only as it is. The authorities are taking effective steps to reclaim the water body and also to remove the debris, which is choking the water channel. If the water channel is restored, it will be useful for the entire village.
8.In view of the above, this Writ Petition is dismissed with a direction to the respondents to remove the said encroachment and file a report along with Photographs by 01.12.2020 . No costs. Consequently, connected Miscellaneous Petitions are closed. It is made clear that if any tree is there, the tree should not be removed and the same should be taken care of by the Panchayat.
9.It is represented by the learned Additional Government Pleader appearing for the respondents that another encroacher viz., P.Velusamy has already filed W.P.(MD)No.14347 of 2020 before this Court and the same was dismissed on 14.10.2020 with a direction to remove the encroachment. Hence, the Registry is directed to list both the matters on 01.12.2020 , for reporting compliance.
Sd/-
// True Copy //
/ /2020 Sub Assistant Registrar(CS)
smn2
Note :- In view of the present lock down owing to COVID19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.
To
1.The District Collector, Dindigul District, Dindigul.
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2.The Revenue Divisional Officer, Office of the Revenue Divisional Officer, Palani Revenue Division, Palani, Dindigul District. 3.The Tahsildar, Oddanchathiram Taluk Office, Oddanchathiram, Dindigul District. 4.The Block Development Officer, Oddanchathiram Panchayat Union, Oddanchathiram, Dindigul District. 5.The President, Vadakadu Village Panchayat, Oddanchathiram Taluk, Dindigul District. Copy to The Section Officer, Writ Posting Section, Madurai Bench of Madras High Court, Madurai. +1 CC to SPL GP ( SR-20815[F] dated 02/11/2020 ) W.P.(MD)No.14609 of 2020 28.10.2020 VB (11.11.2020) 5P 8C
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2 issues framed by the court
Whether the eviction notice issued by the fifth respondent to remove encroachment from a village water body can be quashed.
Whether the respondents can proceed to remove encroachment from the classified water body following statutory procedure.
A.Thirumurugasamy
The District Collector, Dindigul District
The Revenue Divisional Officer, Palani Revenue Division
The Tahsildar, Oddanchathiram Taluk Office
The Block Development Officer, Oddanchathiram Panchayat Union
The President, Vadakadu Village Panchayat
N.KIRUBAKARAN
B.PUGALENDHI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
