Quashed

Saravanan S v. The District Collector

Madras HC13 Nov 2024WP(MD)/12324/2022

Case brief

AI extract

What is this about?

This writ petition challenged a charge memo against a Town Planning Inspector for failing to remove waterbody encroachments. The Court observed that while public waterbodies are vested in municipalities, the specific power to remove such encroachments was absent in the prevailing 1920 Act. Consequently, the charge was issued mechanically without legal basis.

What did the court decide?

The impugned charge memo dated 23.05.2022 issued by the respondent is set aside.

Saravanan S Vs The District Collector — Service and Employment | Madras HC (2024)

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W.P.(MD)No.12324 of 2022

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED : 13.11.2024

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CORAM:

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THE HONOURABLE MR.JUSTICE B.PUGALENDHI

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W.P.(MD)No.12324 of 2022 and W.M.P.(MD)No.8756 of 2022

S.Saravanan

... Petitioner

versus

The District Collector, Thoothukudi District, Thoothukudi.

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... Respondent

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Writ Petition filed under Article 226 of Constitution of India, seeking for the issuance of Writ of Certiorari, to call for the records related to the impugned charge memo of the respondent dated 23.05.2022 in Na.Ka.D4/8605/2017 and quash the same.

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For Petitioner : Mr.N.Dilip Kumar For Respondent : Mr.K.Balasubramani, Special Government Pleader

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ORDER

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The petitioner, a Town Planning Inspector working in Kovilpatti Municipality, has filed this writ petition, challenging the charge memo dated

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https://www.mhc.tn.gov.in/judis

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W.P.(MD)No.12324 of 2022

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23.05.2022 issued against him under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. The charge framed against this petitioner is that he has failed to initiate action to remove the encroachments in a waterbody within the limits of Kovilpatti Municipality.

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The case of the petitioner is that though the waterbody lies within the jurisdiction of Kovilpatti Municipality, the officials of the Municipality are not having the powers to remove the encroachments under the Tamil Nadu District Municipalities Act, 1920. The Assistant Commissioner of Land Administration, by his letter dated 12.08.2013, clarrified that the competent authority to remove the encroachments in a waterbody within the limits of Municipality is only the Tahsildar under the Tamil Nadu Land Encroachment Act, 1905. In response to a notice dated 21.03.2022 from the Tahsildar, Kovilpatti, requesting to take appropriate action to remove the encroachment in a waterbody, the Commissioner of Kovilpatti Municipality, by his letter dated 05.04.2022 states that the Tahsildar has to remove the encroachment under the provisions of Tamil Nadu Land Encroachment Act. But, the respondent/the District Collector, Thoothukudi District, finding fault with the same that the petitioner has failed to initiate action to remove

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https://www.mhc.tn.gov.in/judis

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W.P.(MD)No.12324 of 2022

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the encroachments under the Tamil Nadu District Municipalities Act, 1920, has issued the impugned charge memo dated 23.05.2022. Challenging the same, the present writ petition has been filed.

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The learned counsel appearing for the petitioner, by referring the proceedings of the Assistant Commissioner of Land Administration dated 12.08.2013 and the letter of the Commissioner of Kovilpatti Municipality dated 05.04.2022, submits that the concerned authorities have already clarified that the officials of the Municipality are not having any jurisdiction to take action on the encroachments in a waterbody. The learned counsel, by referring the provision under Section 182 of the Tamil Nadu District Municipalities Act, 1920, submits that it falls under Chapter-IX which is pertaining to encroachment in streets and therefore, the encroachment in a waterbody cannot be removed under the provisions of the Tamil Nadu District Municipalities Act. However, the District Collector, Thoothukudi District, without understanding the relevant provisions of law, has issued the impugned charge memo as against the petitioner. When the Commissioner of Kovilpatti Municipality has clarified in his letter dated 05.04.2022 that the Tahsildar has to remove the encroachment under the provisions of Tamil

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Nadu Land Encroachment Act, it is not proper on the part of the respondent/the District Collector in initiating the disciplinary proceedings as against the peititoner.

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The learned counsel, by relying on the order of this Court passed in W.P.(MD)No.6050 of 2022, dated 09.06.2022, submits that a similar course

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of action taken by the Commissioner of Paramakudi Municipality, by issuing notice dated 25.03.2022 to remove the encroachments in a waterbody, was challenged in W.P.(MD)No.6050 of 2022, wherein, the learned Additional Advocate General appeared before this Court and reported that the Municipality has withdrawn the impugned notice dated 25.03.2022 that the Municipality is not having any power to remove the encroachments.

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The learned Special Government Pleader submits that it is only a charge memo. The petitioner can very well explain his stand before the Enquiry Officer. Therefore, there is no necessity to interefere with the impugned charge memo at this stage.

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This Court considered the rival submissions and also perused the

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materials placed on record.

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All public water-courses and springs and all public reservoirs, tanks, cisterns, fountains, wells are all vested with the Municipality as per Section 125 of the Tamil Nadu District Municipalities Act, 1920. However, the provision of Section 182 of the Tamil Nadu District Municipalities Act, 1920, falls under Chapter IX, which is meant for removal of encroachment on street. Therefore, this Court directed the learned Special Government Pleader to clarify under which provision the Town Planning Officer is empowered to remove the encroachments in a waterbody.

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The learned Special Government Pleader, by referring the new provision under Section 128 of the Tamil Nadu Urban Local Bodies Act, 1998, submits that for all the lands vested with the Municipality, the Municipality is having the power to remove the encroachments, including, the encorachments in the waterbodies.

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However, the Tamil Nadu Urban Local Bodies Act, 1998 has come

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into effect from 13.04.2023. Prior to that, the available provision for the Municipality is under the Tamil Nadu District Municipalities Act, 1920. The language incorporated in Section 128 of the Tamil Nadu Urban Local Bodies Act, 1998 is different from the language incorporated under Section 182 of the Tamil Nadu District Municipalities Act, 1920.

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No doubt, under Section 128 of the Tamil Nadu Urban Local Bodies Act, 1998, the Municipality is empowered to remove the encroachments, including, the encroachment in a waterbody, but, such provision was not in existence in the Tamil Nadu District Municipalities Act. Therefore, this Court is of the view that the impugned charge memo dated 23.05.2022 has been issued in a mechanical manner, without ascertaining the available provisions of law, which enables the petitioner to remove the encroachments in a waterbody and the same is liable to be set aside. Moreover, the District Collector, Thoothukudi District, is not the competent authority to issue the impugned charge memo dated 23.05.2022 against the petitioner under the provision of Tamil Nadu Municipal Town Planning Service Rules, 1970.

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