Writ petitions concerning removal of encroachments on designated water bodies must adhere to the principles of natural justice, allowing affected parties the opportunity to respond before any action is taken.

(made by M.SUNDAR, J.)

Subject matter of captioned main ‘writ petition’ [‘WP’ for the sake of brevity] is alleged encroachments in ‘Survey No.4/1, No.82, Pekkaranai Village, Lathoor Sub-Taluk, Cheyyur Taluk, Chengalpet District’ [hereinafter ‘said land’ for the sake of convenience and clarity].

2. Request for removal of aforereferred alleged encroachments has not yielded results and that has necessitated captioned WP is the submission of learned counsel for writ petitioner.

3. Ms.J.Deepika, learned counsel on record for writ petitioner and Mr.T.K.Saravanan, learned Additional Government Pleader for respondents 1 to 5 are before us.

4. Learned State counsel for respondents 1 to 5 submits that survey of said land will be done after putting all concerned on notice and in their presence, 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] or any other appropriate/applicable statute.

5. Though obvious, this Court, deems it appropriate to make it clear that vide Tanks Act necessarily means adherence to procedure put in place by a Hon’ble Full Bench of this Court videT.K.Shanmugam case [ T.K.Shanmugam Vs. State of Tamil Nadu ] reported in2015 (5) LW 397. As regardsT.K. Shanmugam principle, relevant paragraphs are sub sub-paragraphs (i) to (iii) of subparagraph (f) of paragraph 15 and the same read as follows:

'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.

(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.

(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.

(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.

(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.'

To be noted,T.K.Shanmugam reiteratesT.S.Senthil Kumar principle[ T.S. Senthil Ku