Thamarai Vs the District Collector

Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Mandamus, forbearing the respondents 1 to 3 from taking coercive action on the petitioners' dwelling houses, their men, agents or anybody claiming through them from in any manner attempting to evict the petitioners from the subject property in survey number 301/1 pending disposal of the petitioners' representation dated 02.12.2024 and pass appropriate order.

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For Petitioners : Mr.N.Sudharsan For Respondents : Mr.T.K.Saravanan Government Advocate

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O R D E R

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[Order of the Court was made by M.SUNDAR, J. ,]

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Subject matter of captioned main 'Writ Petition' {hereinafter 'WP' for

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the sake of brevity, convenience and clarity} is 'property classified as jpUepd;wt{h; Vhp in Thiruninravur Village, Avadi Taluk, Thiruvallur District' {hereinafter 'said lake' for the sake of brevity, convenience and

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clarity}.

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Mr.N.Sudharsan, learned counsel on record for writ petitioners submits that said lake is comprised in S.No.301/1. We note this submission without expressing any view or opinion one way or the other. Main WP has

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been filed with a prayer to mandamus respondents i.e., forbear respondents from taking coercive action qua petitioners' dwelling houses in said lake. Learned counsel submits that writ petitioners were visited with notices in Form II under Rule 5(3) of 'the Tamil Nadu Protection of Tanks and Eviction of Encroachment Rules, 2007' {hereinafter 'Tanks Rules' for the sake of convenience, clarity and brevity} being notices dated 25.11.2024 and writ petitioners have responded to the notices by sending representations dated 02.12.2024.

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Learned counsel for writ petitioners submits that writ petitioners are under pain of dispossession / eviction and therefore, the captioned WP has been filed.

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Issue notice to respondents.

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Mr.T.K.Saravanan, learned Government Advocate, accepts notice

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for all three respondents and submits, on instructions, that there are over

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200 encroachers in said lake and therefore, afore-referred Form II notices have been published / issued.

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Owing to the limited scope of the captioned WP, main WP was taken up in the Admission Board with the consent of learned counsel on both sides.

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As regards proceedings 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},

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we deem it appropriate to set out the same step by step in detail and the same is as follows:

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(i) Tanks Act is a conditional legislation, received the assent on 22.05.2007, published in Tamil Nadu Government

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Gazette on 23.05.2007 and came into force on 01.10.2007;

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(ii) Section 13 of Tanks Act deals with rule making power

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and it confers such powers on State Government;

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(iii) In exercise of aforementioned rule making power

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under Section 13 of Tanks Act, the State Government has made a

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set of rules i.e., 'Tanks Rules' and Tanks Rules came into force on and from 01.10.2007;

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(iv) Certain provisions of Tanks Act ( inter alia Sections 4 to 10 of Tanks Act) were assailed in T.S.Senthil Kumar case

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{T.S.Sentil Kumar Vs. Government of Tamil Nadu and others reported in 2010 SCC OnLine Mad 1347} and Hon'ble Division Bench of this Court, in and by an order dated 10.02.2010 upheld the vires;

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(v) Thereafter, there was a reference to Full Bench ( inter alia) as regards the question as to whether Tanks Act in any manner dilutes the observation in L.Krishnan case {L.Krishnan Vs. State of Tamil Nadu reported in AIR 2005 Madras 311 : (2005) 3 MLJ 363} . To be noted, in L.Krishnan case, directions were issued qua all natural water resources and removal of encroachment;

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(vi) Aforementioned reference was answered by Full Bench

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of this Court in T.K.Shanmugam case {T.K.Shanmugam Vs. The State of Tamil Nadu and others reported in 2015 SCC OnLine

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Mad 9343} (order dated 30.10.2015);

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(vii) In T.K.Shanmugam case, Hon'ble Full Bench referred

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to T.S.Senthil Kumar case with approval, made it clear that Full Bench upholds the Tanks Act as in T.S.Senthil Kumar case providing for observance of principles of natural justice {NJP} within the Act. NJP provided for within the Act in T.S.Senthil Kumar case is by way of an adumbration vide sub-subparagraphs (i), (ii) and (iii) of sub-paragraph (f) of paragraph No.42 in T.S.Senthil Kumar case as reported in 2010 SCC

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OnLine Mad 1347 which read as follows:

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'42. In the result, we dispose of the writ petition in the same lines adopting the same method which the Supreme Court done in the two cases in Mysore v. J.V. Bhat (supra) and (ii) Scheduled Caste & Weaker Section Welfare Association v. State of Karnataka (supra), where the Supreme Court dealt with the Mysore Slum (Improvement and Clearance) Act, 1958 and without declaring that the Act is unconstitutional since no opportunity is given, we will hold that there is nothing in the Act which excludes the principles of natural justice. The Act does not specifically indicate that the encroachers do not have a right to be heard and therefore we issue the following directions.

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(a) The State shall scrupulously follow the provisions of the Act. It shall also ensure that all the District Collectors and other authorities, who are concerned with the observance of the provisions of the Act, strictly follow the letter, dated 10.10.2007.

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(b) The District Collectors, while creating adequate awareness, may also enlist the help of Self Help Groups to disseminate the message that protection of water resources will actually promote the welfare of the villages and therefore it is in the interest of every citizen to make sure that he is not encroaching on a tank and to clear tanks and water bodies which are filled with garbage and to avoid dumping of garbage will automatically enhance and improve the public health of the community.

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(c) As already stated, the State will ensure that alienation of tank poramboke lands, citing public interest, shall not be made under Section 12 of the Act. The meaning and weight of the words “public interest” shall be implicitly borne in mind.

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(d) The State holds all the water bodies in public trust for the welfare of this generation and all the succeeding generations and, therefore, protecting water bodies must be given as much weightage, if not more as allowing house-sites or other buildings to come up on such tanks or tank poramboke lands, and water charged lands.

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(e) The State shall also bear in mind the provisions of this Act and the objects and reasons of this Act while issuing patta to persons who claim to have resided in the same place for a number of years and if necessary modify the relevant Government Orders to

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make sure that the implementation of these G.Os. are not in violation of this very valuable and important Act, namely Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007.

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(f) We uphold the Act, while we provide for observance of principles of natural justice within the Act itself, 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 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.

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(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.

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(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.’

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(viii) To respectfully elaborate on the above, the same would be as follows:

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(a) When the report of survey officer is affixed

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under Rule 5 of Tanks Rules in the office of Village Administrative Officer, Village Panchayat Office and Water Resources Organization, notice shall also be issued to alleged encroachers notifying that the survey indicates that place in his / her occupation is an encroachment;

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(b) After afore-referred Form II vide Rule 5 of Tanks Rules, notice in Form III (vide Rule 6(1) of Tanks Rules) should be issued to alleged encroachers. This notice is a 'Show Cause Notice' {'SCN'}. In this SCN, alleged encroachers should be called upon to give his / her objection / objections relating to classification of land in their occupation and the nature of alleged encroachment;

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(c) Thereafter, after 15 days elapse, authorities should consider objections of noticees and pass appropriate orders vide Tanks Act, giving time to encroachers for removal of alleged encroachment;

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(d) To be noted, if the noticees do not reply /

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respond within two weeks, authorities will still pass such orders (obviously without considering any objections as there are none) in accordance with provisions of Tanks Act and give time to alleged encroachers to remove the encroachment.

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(ix) Aforementioned proceedings as laid down by Hon'ble Full Bench has to be scrupulously and strictly adhered to.

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Reverting to the case on hand, the first step of sending Form-II to writ petitioners at the time of affixture has happened, rest of procedures as laid down by Division Bench in T.S.Senthil Kumar case and approved by Full Bench in T.K.Shanmugam case should be followed. Any coercive action (if that be so) will obviously, be subject to / depending on and after orders of authorities vide sub-sub-paragraph(iii) of sub-paragraph(f) of paragraph No.42 of T.S.Senthil Kumar case which has been reiterated in T.K.Shanmugam Case.

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Learned State Counsel submits that aforementioned procedures

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will be adhered to and what has been done now is step 1. This means that writ petitioners will be show-caused vide Form-III, giving two weeks time for sending their objections, if any and thereafter, orders will be passed.

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In the light of the narrative thus far, we are of the considered view that captioned main WP can be disposed of by recording the stated position of learned State Counsel which has been captured supra. We do so.

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Ergo, the sequitur is, captioned WP stands disposed of in the aforesaid manner. Consequently, captioned Writ Miscellaneous Petition is disposed of as closed. There shall be no order as to costs.

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Index : Yes / No Neutral Citation : Yes / No Speaking order / Non-speaking order

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mk

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To