Dr.N.a.Priyadharshini Vs The District Collector

Writ Petition filed under Article 226 of The Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for the records relating to the impugned order passed by the 8^th respondent in Lr.No.F/10/AE Sathy/2022 dated 15.02.2022, quash the same and consequently direct the respondents not to interfere with the petitioner's peaceful possession and enjoyment of her land situated in S.F.No.49/4A1, Sellipalayam Village, Sathyamangalam Taluk, Erode District by considering the petitioner's representation dated 15.02.2022 and further direct the respondents 7 and 8 to pay compensation as fixed by this Court to the petitioner for the illegal demolition of the retaining wall in the subject matter land and for causing hardship and mental agony to the petitioner and her family members.

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W.P.No.7825 of 2022

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For Petitioner : Ms. R.Preethikaa for Mr.D.R.Arunkumar For Respondents : Mr.T.K.Saravanan Additional Government Pleader

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ORDER

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

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Captioned main 'Writ Petition' ['WP' for the sake of brevity] has been

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filed with a prayer seeking issue of writ of certiorarified mandamus.

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2. In and vide certiorari limb of the prayer, proceedings of the eighth respondent dated 15.02.2022 bearing reference f/vz ; /nfh/10-c/bghrj ; jp-2022' [hereinafter 'impugned proceedings' for the sake of convenience] has been assailed.

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3. As regards the mandamus limb, which has been described as a consequential limb, a direction has been sought to restrain respondents from interfering with petitioner's possession of 'land situate in S.F.No.49/4A1' ('said land' for convenience) by considering writ petitioner's representation dated 15.02.2022 and a further direction to pay compensation (for alleged illegal demolition of retaining wall) has been sought. A scanned

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W.P.No.7825 of 2022

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reproduction of 15.02.2022 representation of writ petitioner as placed

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before us is as follows:

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4. Ms.R.Preethikaa, learned counsel representing the counsel on record for writ petitioner submits that the impugned proceedings of eighth respondent directly calls upon the writ petitioner to remove alleged encroachment without giving an opportunity to the writ petitioner.

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5. Mr.T.K.Saravanan, learned State counsel submits that as it is a case of encroachment in a water body, the impugned proceedings was made.

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6. This Court carefully considered the submissions on both sides and examined the case file.

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7. As regards 'Removal of Encroachment' {'RoE' for the sake of brevity} 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 brevity), in the light of T.K.Shanmugam principle laid down by a Hon'ble Full Bench of this Court

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W.P.No.7825 of 2022

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LW 397,

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i.e., ratio in T.K.Shanmugam Vs. State of Tamil Nadu reported in 2015 (5)

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LW 397, more particularly vide sub-sub-paragraphs (i) to (iii) of subparagraph (f) of paragraph 15, it is necessary to show-cause the alleged encroacher, give an opportunity, consider noticee's response and make orders before either accepting the cause shown or proceeding with RoE. Sub sub-paragraphs (i) to (iii) of subparagraph (f) of paragraph 15 of

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T.K.Shanmugam case read as follows:

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'15.Certain provisions of Tank 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.

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(a) .....

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(b) .....

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(c) .....

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(d) ......

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(e) .....

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(f) We uphold the Act, while we provide for observance of

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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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8 . The aforesaid paragraph is a reiteration of contents of paragraph 42 of T.S.Senthil Kumar principle [ T.S.Senthil Kumar Vs. Government of

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Tamil Nadu reported in (2010) 3 MLJ 771 ] wherein vires of Tanks Act was upheld.

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9. In the light of the obtaining position, without interfering qua impugned notice, we make the following order:

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i) Impugned proceedings of eighth respondent dated 15.02.2022 shall now be treated as a 'show-cause notice'

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['SCN'];

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ii) Writ petitioner has already sent a representation dated 15.02.2022 (scanned and reproduced supra). In addition to this 15.02.2022 representation, it is open to the writ petitioner to send a detailed response to the SCN, which shall be done within a fortnight from the date on which copy of instant order is uploaded in the official website of this Court;

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iii) If writ petitioner sends an additional response in the aforesaid manner, the Authority concerned shall consider 15.02.2022 representation of writ petitioner as well as further representation and make orders;

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iv) Orders made in the aforesaid manner shall be served

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on the writ petitioner under due acknowledgement within 7 working days from the date on which the orders are made;

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v) If the writ petitioner. does not send further response within the afore-referred time frame, it is open to the Authorities to pass orders on the basis of 15.02.2022 response and proceed further, obviously depending on the orders;

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vi) Notwithstanding this order, it is made clear (though obvious) that writ petitioner's rights to assail orders made in the aforesaid manner if it is adverse to the writ petitioner, stand preserved;

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vii) Coercive action, if any and if that be so, will be subject to and depending on orders to be made by Appropriate authority in the aforesaid manner.

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W.P.No.7825 of 2022

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Captioned main WP disposed of in the aforesaid manner. In the light

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of what we have written regarding coercive action, captioned WMPs have

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become otiose and the same are disposed of as closed. There shall be no