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High Court of Judicature at Madras
THE HONOURABLE MRS. JUSTICE PRABHA SRIDEVAN & THE HONOURABLE MR. JUSTICE M. SATHYANARAYANANAN
T.S. Senthil Kumar
Versus
The Government of Tamil Nadu, Rep. by its Secretary, Fort St. George, Chennai & Others
Writ Petition No.20021 of 2008
Decided on: 10-02-2010
Writ petition filed for a declaration that Sections 4, 5, 6, 7, 8, 9 and 10 of the Tamil Nadu Protection of Tanks and Eviction of Encroachments Act, 2007 as null and void and contrary to Article 14 of the Constitution of India and also to quash the impugned order dated 27. 2008 passed by the fourth respondent herein. The court held that the Act is constitutional and that the principles of natural justice can be observed within the Act itself.
Fact of the Case:
The petitioner filed a writ petition challenging the constitutional validity of the Tamil Nadu Protection of Tanks and Eviction of Encroachments Act, 2007, arguing that it violated Article 14 of the Constitution of India by denying encroachers an opportunity to be heard before eviction. The petitioner also sought to quash an eviction order issued by the fourth respondent.
Finding of the Court:
The court held that the Act is constitutional and that the principles of natural justice can be observed within the Act itself. The court directed the State to scrupulously follow the provisions of the Act and to ensure that all authorities concerned strictly adhere to the letter issued by the Government on 10. 2007. The court also directed the State to create adequate awareness among the public about the importance of protecting water resources and to enlist the help of Self Help Groups in disseminating this message. The court further directed the State to ensure that alienation of tank poramboke lands under Section 12 of the Act is done only in the public interest and that the meaning and weight of the words "public interest" are implicitly borne in mind. The court also directed the State to consider the provisions of the Act and its objects and reasons while issuing patta to persons claiming to have resided in the same place for a number of years and to modify relevant Government Orders if necessary to ensure that their implementation does not violate the Act. Finally, the court upheld the Act while providing for the observance of principles of natural justice within the Act itself, by requiring the authorities to issue notices to alleged encroachers and to consider their objections before passing appropriate orders.
Issues: 1. Whether the Tamil Nadu Protection of Tanks and Eviction of Encroachments Act, 2007 is constitutional? 2. Whether the Act violates Article 14 of the Constitution of India by denying encroachers an opportunity to be heard before eviction? 3. Whether the impugned eviction order issued by the fourth respondent is valid?
Ratio Decidendi: The court held that the Act is constitutional and that the principles of natural justice can be observed within the Act itself. The court reasoned that the Act does not specifically exclude the principles of natural justice and that the Supreme Court has held that it is not necessary to declare a statute unconstitutional if it does not debar the observance of principles of natural justice. The court also held that the Act provides for a survey of tanks and the identification of encroachments, and that this survey is sufficient to put encroachers on notice that they are occupying land that is subject to eviction. The court further held that the Act provides for the issuance of notices to encroachers and for the consideration of their objections before eviction orders are issued, and that this is sufficient to satisfy the requirements of natural justice.
Final Decision: The court disposed of the writ petition with directions to the State to scrupulously follow the provisions of the Act and to ensure that all authorities concerned strictly adhere to the letter issued by the Government on 10. 2007. The court also directed the State to create adequate awareness among the public about the importance of protecting water resources and to enlist the help of Self Help Groups in disseminating this message. The court further directed the State to ensure that alienation of tank poramboke lands under Section 12 of the Act is done only in the public interest and that the meaning and weight of the words "public interest" are implicitly borne in mind. The court also directed the State to consider the provisions of the Act and its objects and reasons while issuing patta to persons claiming to have resided in the same place for a number of years and to modify relevant Government Orders if necessary to ensure that their implementation does not violate the Act. Finally, the court upheld the Act while providing for the observance of principles of natural justice within the Act itself, by requiring the authorities to issue notices to alleged encroachers and to consider their objections before passing appropriate orders.
Prabha Sridevan, J.
This writ petition has been filed for a declaration that Sections 4, 5, 6, 7, 8, 9 and 10 of the Tamil Nadu Protection of Tanks and Eviction of Encroachments Act, 2007 as null and void and contrary to Article 14 of the Constitution of India and also to quash the impugned order dated 27. 2008 passed by the fourth respondent herein.
2. Pending the writ petition, directions had been issued for giving an opportunity to the petitioner to reply to the show cause notice and until any order was passed, there can be no eviction of the petitioner. Therefore, the individual and personal grievance of the petitioner has been addressed by the interim orders of this Court. But, the learned counsel for the petitioner submitted that the grounds of attack on the constitutionality of the provisions of the Act still remain and made her submissions.
3. According to the learned counsel, the impugned Sections of the Act confer upon the Executive, an unguided and uncanalised discretionary power, since they deny to the person aggrieved an opportunity of being heard. The provisions do not contemplate any procedure to be adopted for hearing, nor for any enquiry of the affected persons prior to the issuance of the eviction order and therefore, they should be struck down. Learned counsel referred to Government of Mysore vs. J.V. Bhat, 1975 (2) S.C.R. 407 and The Scheduled Caste & Weaker Section Welfare Association vs. State of Karnataka, 1991 (1) U.J. (S.C.) 628 = AIR 1991 SC 1117 = 1991 (2) SCC 604.
4. Mr. M. Dhandapani, learned Special Government Pleader referred to L. Krishnan vs. State of Tamil Nadu, A.I.R. 2005 Madras 311, which perhaps was the starting point for the State of Tamil Nadu to enact this law and submitted that the "right to water" is part of right to life guaranteed under Article 21 of the Constitution and if all natural water storage resources are encroached upon indiscriminately, then the consequences will have a devastating adverse effect on the lives of people. He also referred to Intellectuals Forum vs. State of Andhra Pradesh, (2006) 3 S.C.C. 549 in support of his submissions.
5. Wemay now look into the provisions of the Act. The Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007 is extracted hereunder :-
"ACT No.8 of 2007
An Act to provide measures for checking the encroachment, eviction of encroachment in tanks which are under the control and management of Public Works Department, protection of such tanks and for matters incidental thereto.
Be it enacted by the Legislative Assembly of the State of Tamil Nadu in the Fifty-eighth Year of the Republic of India as follows:
1. (1) This Act may be called the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007.
.(2) It extends to the whole of the State of Tamil Nadu.
.(3) It shall come into force on such date as the Government may, by notification, appoint.
2. In this Act, unless the context otherwise requires, -
.(a) ayacut area means area irrigated under any irrigation system within its command ability;
.(b) field channel means a channel existing or to be constructed to receive and distribute water for irrigation;
.(c) field drainage means a water course which discharges waste or surplus water from the land;
.(d) foreshore area means the land above full tank level and upstream of the tank bund;
.(e) full tank level means the level of water in the tank when the water is stored up to the crest of the surplus weir;
.(f) Government means the State Government;
.(g) land includes benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth;
.(h) prescribed means prescribed by rules;
.(i) supply channel means a channel, which receives water from a water source and supply to the lower down tank;
.(j) surplus course means a channel which conveys the surplus spilling from the tank to the next tank downstream or river nearby;
.(k) surplus weir means a d
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