Principles of natural justice must be followed, and a speaking order must be passed on objections before proceeding to remove encroachments.

JUDGMENT

(Prayer: Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorari calling for the records on the file of the respondent in Form No.3, dated 23.07.2022 and quash the same.)

Munishwar Nath Bhandari, C.J.

1. By this writ petition, challenge is made to Form-III notice issued under the provisions of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007.

2. The main ground of challenge is denial of opportunity of hearing before causing notice under Form-III, and even non-service of the notice of Form-II under the Act of 2007. The petitioners have, however, submitted objection to the notice issued under Form-III, giving out that action aforesaid is nothing but out-come of the mala fides due to rivalry out of election. It was also submitted that there are many other encroachments but no action has been taken against them, while action has been initiated only against the petitioners, who are in possession of the land for the last forty years. In the light of the argument aforesaid, prayer is to set aside the notice issued under Form-III.

3. We have considered the submission made by learned counsel and perused the records.

4. The issue raised by the petitioners has been dealt with by Division Bench of this Court in the case of T.Senthil Kumar vs. Government of Tamil Nadu [2010(3) MLJ 771], and subsequent judgment of the larger Bench in the case of T.K.Shanmugam vs. State of Tamil Nadu [(2015) 8 MLJ 1]. The validity of provisions of the Act 2007 was an issue before the Division Bench. The provisions were held to be constitutionally valid but finding that no process for hearing has been given to abide the principles of natural justice, a direction was given to supply copy of Form-II before, and at the same time, on issuance of Form-III, liberty was given to the party to send objection within a period of two weeks. In case of objection, Form-III notice be treated as show-cause notice and thereby, the respondents to pass appropriate order in reference to objection, before proceeding further to remove the encroachment. The relevant paragraph of the Division Bench judgment is quoted hereunder for ready reference:

“20. 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 cited supra Mysore vs. J.V. Bhat - 1975 (2) S.C.R. 407 and (ii)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., 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.

(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.

(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.

(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.

(d) The State holds