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IN THE HIGH COURT OF JUDICATURE AT MADRAS
MUNISHWAR NATH BHANDARI, N. MALA, JJ.
B. Thangaraj & Others – Appellants
Versus
The Secretary, Public Works Department, Water Resource Department, Government of Tamilnadu, Chennai & Others – Respondents
W.P.Nos. 13853, 13855 & 14179 of 2022
Decided on : 19-07-2022
Tamilnadu Protection of Tanks and Eviction of Encroachment Rules - Challenge to notices issued under Rule 6(1) of the Rules of 2007 - Reference to Division Bench judgment and Larger Bench judgment - Court's directions on observance of principles of natural justice - Court's decision to dispose of the writ petitions with specific directions to the petitioners and respondent authorities
Fact of the Case:
The writ petitions challenge the notices issued under Rule 6(1) of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Rules, 2007, on the ground that the lands in question belong to the petitioners and they have valid title, and that the notices were issued despite the petitioners' objections. The petitioners sought directions to quash the notices or to direct the respondents to consider their objections.
Finding of the Court:
The court considered the Division Bench judgment in T.S.Senthil Kumar v. The Government of Tamil Nadu and others, and the Larger Bench judgment in T.K.Shanmugam v. State of Tamil Nadu, which provided directions on observance of principles of natural justice. The court found that the petitioners should have given their replies/objections within two weeks of the notice in Form-III, as directed by the Division Bench. However, no action to remove the encroachment was taken by the respondents immediately or till the filing of the writ petitions, and the petitioners sent their replies/objections. The court disposed of the writ petitions with specific directions to the petitioners and respondent authorities.
Issues: Challenge to notices issued under Rule 6(1) of the Rules of 2007, petitioners' objections, delay in action to remove encroachment, and directions on submission of documents and consideration of objections by respondent authorities.
Ratio Decidendi: The court's decision was influenced by the Division Bench and Larger Bench judgments, which provided directions on observance of principles of natural justice, including the requirement for encroachers to give their objections within a specified period and for authorities to consider the objections and pass appropriate orders. The court's decision was also based on the petitioners' right to submit documents to prove their right of possession and the respondent authorities' obligation to consider the documents and pass orders within a specified time.
Final Decision: The court disposed of the writ petitions with directions for the petitioners to submit documents to prove their right of possession, for the respondent authorities to consider the documents and pass orders within a specified time, and for the respondent authorities not to give effect to the notice in Form-III until the specified exercise is undertaken.
JUDGMENT :
Munishwar Nath Bhandari, J.
(Prayer : W.P.Nos.13853 and 13855 of 2022 filed under Article 226 of the Constitution of India praying for a writ of certiorarified mandamus calling for the records of the second respondent in respect of his notice dated 20.11.2021 issued to the petitioners in Form-III, under rule 6 sub-rule (1) of the Tamilnadu Protection of Tanks and Eviction of Encroachment Rules, 2007 relating to property comprised in Survey Number NIL, T.S.Number Ward-D, Block-50, T.S.No.117, Zamin Pallavaram, Pallavaram, Chengalpattu District of constructed house admeasuring 80 sq.m., to quash the same and consequently forebear the respondents from interfering with the petitioners peaceful possession and enjoyment of subject property referred above.
W.P.No.14179 of 2022 filed under Article 226 of the Constitution of India praying for a writ of certiorarified mandamus calling for the records of the second respondent in respect of his notice dated 20.11.2021 issued to the petitioner in Form-III, under rule 6 sub-rule (1) of the Tamilnadu Protection of Tanks and Eviction of Encroachment Rules, 2007 relating to property comprised in Survey Number NIL, T.S.Number 58, Ward-D, Block-53, Zamin Pallavaram, Pallavaram, Chengalpattu District of constructed house admeasuring 90 sq.m., to quash the same and consequently forebear the respondents from interfering with the petitioners peaceful possession and enjoyment of his subject property referred above.)
1. By these writ petitions a challenge is made to the notices dated 20.11.2021 issued in Form-III under sub-rule (1) of Rule 6 of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Rules, 2007 [for brevity, "the Rules of 2007"].
2. The challenge to the notices has been made mainly on the ground that the lands in question belong to the petitioners and they are having valid title in proof thereof, yet ignoring the aforesaid the notices in Form III were issued. The petitioners sent their replies/objections to the notices. However, no order on it has been passed. Since the respondents were pursuing action to remove the constructions, the petitioners were left with no option but to file the present writ petitions.
3. Learned counsel for the petitioners has given reference of a Division Bench judgment of this court in the case of T.S.Senthil Kumar v. The Government of Tamil Nadu and others, (2010) 3 MLJ 771, and also a Larger Bench judgment in the case of T.K.Shanmugam v. State of Tamil Nadu, (2015) 8 MLJ 1 (FB). In the case of T.S.Senthil Kumar (supra), the constitutional validity of certain provisions of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007 [for short, "the Act of 2007"] and Rules of 2007 was challenged. The provisions were held to be constitutionally valid, but to ensure observance of the principles of natural justice, a direction was given to the effect that when the officer of the Public Works Department publishes the notice in Form-II in the notice boards of the offices of the Village Administrative Officer, Village Panchayat Office and the Water Resources Organization, the 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 may be issued. It was further directed that 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. The authorities were directed to consider the objections and pass appropriate orders in accordance with law. However, in the instant case, though the petitioners sent their replies/objections, no order has yet been passed. Thus, the prayer is made to either quash the notice in Form-III issued under Rule 6(1) of the Rules of 2007 or to direct the respondents to consider the replies/objections given by them and pass appropriate orders. It is in the background that the pe
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