IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 18.03.2019

CORAM :

THE HON'BLE MRS.VIJAYA K.TAHILRAMANI, CHIEF JUSTICE

AND

The HON'BLE MR.JUSTICE M.DURAISWAMY

W.P. No.22373 of 2018 and

W.M.P.No.26207 of 2018

Jayavel

.. Petitioner

v.

1 The Government of Tamil Nadu

Rep. by its Secretary

Public works Department

Forts St. George, Chennai - 600 009

2 The District Collector

Thiruvallur District

3 The Section Officer

Public Works Department

(Water Resource Organization)

Redhills Irrigation Wing

Redhills, Chennai - 600 052

4 The Tahsildar

Avadi Taluk, Tiruvallur District .. Respondents

Writ Petition filed under Article 226 of the Constitution of

India praying to issue of Writ of Certiorarified Mandamus,

calling for the records of the 3rd respondent culminating in

Notice No. 42/S.B/ Encroachment/2018, dated 27.07.2018 and quash

the same and further direct the Section Officer, Public Works

Department

(Water Resources Organization),

Redhills -

Irrigation Wing, Redhills, Chennai - 600052 not to take any

coercive steps from evicting the petitioner from the Survey No.

234, R.K.J. Vallivelan Nagar, Pothur Lake, Avadi Taluk ,

Chennai - 600052.

For petitioner

: Mr.K.Balakrishnan

For respondents

: Mr.V.Jayaprakash Narayanan

Government Pleader (i/c)

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ORDER

(Order of the Court was made by The Hon'ble Chief Justice)

Heard Mr.K.Balakrishnan, learned counsel appearing for

the petitioner and Mr.V.Jayaprakash Narayanan, learned

Government Pleader (i/c) appearing for the respondents.

2. According to the petitioner, he is in possession of the

property bearing Survey No.234, at R.K.J. Vallivelan Nagar,

Pothur Lake, Avadi Taluk, Chennai - 600052. He had constructed

a residential house on the said land. He has electricity and

gas connection and is in possession of Aadhar and ration card.

3. The grievance of the petitioner is that the 3rd

respondent on 27.07.2018 had issued a Notice to him stating that

his house was constructed on 'Water Body' and it is an

encroachment and directed him to remove the same within 21 days.

He was further informed that if he failed to remove the

encroachment by the time specified, the authorities will remove

the same.

4. The prime contention of the learned counsel for the

petitioner is that the impugned notice dated 27.07.2018 issued

by the 3rd respondent is an illegal one because of the fact that

the respondent No.3 is a Section Officer of PWD and the said

Officer is not competent to issue the impugned notice in view of

section 6(2) of the Tamil Nadu Protection of Tank and Eviction

of Encroachment Act 2007 and Rule 2(d) of the Tamil Nadu

Protection of Tank and Eviction of Encroachment Rules. He

pointed out that Rule 6 and 7 of the said Act envisages notice

being issued by an officer and Rule 2(d) defines, who is an

officer. He submitted that if Rule 2(d) is perused, it would

be clear that a Section Officer is not a competent person to

issue the order. For ready reference, Rule 2(d) is reproduced

below: -

"2(d) 'officer' means the Assistant Engineer or

Junior Engineer or Overseer of the Water Resources

Organisation of Public Works Department in charge of

the tanks lying in his jurisdiction for the purpose

of enforcing the provisions of the Act and the

Rules."

The learned counsel for the petitioner thus submitted that

notice could only have been issued by an Assistant Engineer or

Junior Engineer or Overseer of the Water Resources Organisation

of Public Works Department whereas, in the present case, the

notice was issued by a Section Officer.

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5. The other contention projected on the side of the

petitioner