Basheer Ahamed Vs the Chief Engineer (General)

a writ of mandamus directing the respondents 1 to 6 to clear the encroachments made by the seventh respondent in the Alavazhi Irrigation Canal running between the land comprised in S.F.No.288/1A and 289/2 of Odanthurai Village, Mettupalayam Taluk, Coimbatore District.

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For petitioner Mr. P.A. Sai Govindaraja

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For RR 1 to 6 Mr. K. Suresh Government Advocate

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For R7 Notice dispensed with

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ORDER

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(made by M. SUNDAR, J.)

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Subject matter of captioned ‘writ petition’ [‘WP’ for the sake of brevity]

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is 'alleged encroachment in S.F. Nos.288/1A and 289/2 of Odanthurai Village, Mettupalayam Taluk, Coimbatore District’ [hereinafter ‘said lands’ for the sake of convenience and clarity].

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W.P.No.25426 of 2024

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Request for removal of aforereferred alleged encroachments has

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not yielded results and that has necessitated captioned WP is the submission of learned counsel for writ petitioner.

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Mr. P.A. Sai Govindaraja, learned counsel on record for writ petitioner is before us.

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Issue notice to official respondents (RR 1 to 6).

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Mr. K. Suresh, learned Government Advocate, accepts notice for RR 1 to 6 and submits, on instructions 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].

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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 an Hon’ble Full Bench of this Court vide T.K.Shanmugam case [T.K.Shanmugam Vs. State of Tamil Nadu]

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W.P.No.25426 of 2024

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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

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paragraph 15 and the same read as follows:

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'15.Certain provisions of Tanks 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) .....

(d) ......

(e) .....

(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

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W.P.No.25426 of 2024

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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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To be noted, T.K.Shanmugam reiterates T.S.Senthil Kumar principle

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[T.S. Senthil Kumar Vs. Government of Tamil Nadu reported in (2010)

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3 MLJ 771] rendered by an Hon’ble Coordinate co-equal Division Bench.

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The above means that private respondent (R7) who is an alleged encroacher 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 WP is taken up with the consent of learned counsel for writ petitioner and learned State counsel, dispensing with notice to R7. Though obvious, it is made clear that this order does not touch upon the rights of R7 and / or any other noticee/s under the Tanks Act or any other appropriate/applicable statute. This means that all the rights and contentions of R7 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 lands.

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W.P.No.25426 of 2024

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In the light of the narrative thus far, captioned 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 08.09.2025 and action, if any, under the Tanks Act will be commenced as expeditiously as the business of official respondents would permit but in any event within a period of eight weeks therefrom i.e., on or before 03.11.2025. There shall be no order as to costs.

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(M.S., J.) (H.C., J.) 14.07.2025

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cad Index: Yes/No NC : Yes/No

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