Abi Showatech (India) Private Limited v. The Government Of Tamil Nadu
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.4.2022 CORAM :
THE HON'BLE MR.MUNISHWAR NATH BHANDARI, CHIEF JUSTICE AND THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY W.P.No.6756 of 2022 & WMP.No.6836 of 2022 Abi Showatech (India) Pvt.
Ltd., rep.by the Executive Director (Operations) ... Petitioner vs 1.The Government of Tamil Nadu, rep.by the Chief Secretary to Government, Secretariat, Chennai-9.
2.The Principal Secretary to Government (Revenue), Government of Tamil Nadu, Secretariat, Chennai-9.
3.The Additional Chief Secretary to Government, Public Works and Irrigation Department, Government of Tamil Nadu, Secretariat, Chennai-9.
4.The District Collector, Office of the District Collector, Ranipet-632401.
5.The Block Development Officer (B.P.), Sholinghur Panchayat Union, Sholinghur, Ranipet District-631102.
6.The Tahsildar, Taluk Office, Sholinghur, Ranipet District.
631102.
7.The Revenue Inspector, Taluk Office, Sholinghur, Ranipet District. 631102. Respondents Prayer: Petition filed under Article 226 of The Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus to call for the records relating to the impugned i) Order vide No. Na.Ka. A2/410/2022 dated 04.3.2022 issued by the 5th respondent which served on the petitioner on 08.3.2022 and ii) Notice dated 04.3.2022 issued by the 5th respondent under Section 7(1) of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007 which served on the petitioner on 113-2022 and quash the same and consequently direct the respondents 1 to 3 to consider claim of the petitioner to purchase the encroached portion of land Survey No.
801, pointed out by the respondents in the impugned orders as per Section 12 of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007 for the price fixed by the Government or exchange of alternate land having equal measurement, by taking into consideration of the fact removal of encroachment would not serve any purpose, as it does not affect storage capacity and water quality of the lake, since bifurcating the petitioner company and lake, metal thar road in existence and use for a several years laid by the Highways Department connecting Pulivalam Village to Kodaikkal Village and Walaja Road (National Highway).
For Petitioner : Mr.AR.L.Sundaresan, Senior Counsel assisted by Mr.Prakash Adiapadham For Respondents : Mr.J.Ravindran, Additional Advocate General & Mr.P.Muthukumar, State Government Pleader assisted by Mr.A.Selvendran, Special Government Pleader for R1 to R4, R6 & R7 Mr.E.Sundaram for R5 Government Advocate
ORDER
(Order of the Court was made by the Hon'ble Chief Justice) We have heard the learned counsel appearing for the respective parties.
2. By this writ petition, a challenge is made to the notice dated 04.3.2022 issued under Section 7(1) of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007 (for short, the Act of 2007).
3. The learned Senior Counsel appearing on behalf of the petitioner submits that the procedure under the Act of 2007 was not followed and otherwise, the respondents initiated action presuming the land in question to be part of a tank. After issuance of notices in Forms I and II under the Act of 2007, a detailed reply was given to the official respondents.
4. Per contra, the learned State Government Pleader contests the writ petition and submits that as per the Act of 2007, the petitioner was served with notice in Form I, followed by the notice in Form II. It is incorrect to state that the procedure prescribed under the Act of 2007 was not followed. The land encroached by the petitioner is a part of the tank and therefore, it is incorrect to state that the procedure prescribed under the Act of 2007 has been wrongly applied presuming the land in question to be a part of the tank. In fact, it is only after verification of the fact with regard to the land in question, action has been initiated by the respondents.
5. We have carefully considered the submissions of either parties and perused the records.
6. The challenge is made to the notice under Section 7(1) of the Act of 2007 mainly on two grounds, firstly alleging noncompliance of the provisions of the Act of 2007 and secondly presuming the land in question to be a part of the tank, whereas, according to the petitioner, it is not so.
7. So far as the first issue is concerned, we find that the official respondents has applied the procedure as given under the Act of 2007 and issued the notice to the petitioner in Form I followed by the notice in Form II. The notice in Form III is yet to be issued.
8. For ready reference, Form II under Sub-Rule (2) of Rule 5 of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Rules, 2007 is quoted hereunder : "Form II [See Sub-rule (2) of Rule 5] Notice Showing the Index Map of Tank and Boundaries Name of the Tank ........................................................... ......
Name of the Village(s).................................................... Name of the Taluk(s) .................................................... Name of the District(s) .............................................. Notice It is hereby notified for public information in accordance with the Tamil Nadu Protection of Tanks and Eviction of Encroachments Act, 2007 (Tamil Nadu Act 8 of 2007) that all the part and pieces of land shown within the boundaries marked in the map duly authorised by the Tahsildar of...............Taluk as below are belonging to the Water Resources Organisation of Public Works Department. The public are ordered not to encroach upon any land within the boundaries. Any encroachment within the boundaries is liable for eviction under Section 7 of the Act and the offenders shall be punished with imprisonment for a term, which may extend to three months or fine of rupees five thousand or with both under Section 7 of the Act.
Place:
Date:
Name .......................................
..
Designation..............................."
9. A reply has been given by the petitioner and it is not in dispute that the notice in Form III has not yet been issued.
10. For ready reference, Form III under Sub-Rule (1) of Rule 6 of the said Rules is also quoted hereunder : "Form III [See Sub-rule (1) of Rule 6] Notice to Order for Removal of Encroachment I .......................................... ... the Officer, is of the opinion that the portion of the ................. ......................
......................... tank to an extent of ......................................... ............................................
..m2 in Survey Field Number ..................................... ............................................
............................................
..............
in the Village .................................... ........................in................ . ............................................
.........................Taluk, in..........................................
........................District, belonging to the Water Resources Organisation of Public Works Department is encroached by you and in your occupation. I call upon you to evict your encroachment from the said piece and part of land within twenty one days from the date of receipt of this notice, failing which I shall remove the encroachment and impose the cost for removal of encroachment against you. The Department shall not take any responsibility for encroachments removed from within the land and disposed of.
Place:
Date:
Name....................................
Designation........................"
11. In view of the aforesaid provisions, it cannot be accepted that the official respondents failed to apply the provisions of the Act of 2007. Rather, after issuing the notice in Form I, the notice in Form II was issued. The final notice in Form III is yet to be issued after consideration of the reply. Thus, prima facie we find the writ petition to be premature and otherwise, we are not in acceptance with the allegations of noncompliance of the provisions of the Act of 2007.
12. So far as the allegation that the land in question is not a part of the tank is concerned, since the reply to the notice in Form II has been given, the issue would be considered by the respondents. Thus, we would not like to make comment on the issue. Rather, it is left open to the respondents and if it is found to be a case of encroachment of tank land, they would be at liberty to proceed further as per the provisions of law. Presently, the writ petition is premature and otherwise, the question of fact as to whether the encroached land is a part of the tank or not cannot be determined while exercising extraordinary jurisdiction under Article 226 of The Constitution of India.
13. For the foregoing discussions, we dismiss the writ petition. However, it would not mean that the respondents would not consider the reply given by the petitioner in response to the notice in Form II before taking further action. Rather, further action would be taken in consonance with the provisions of law after consideration of the reply. Consequently, the connected WMP is also dismissed. There will be no order as to costs.
SD/- ASSISTANT REGISTRAR // TRUE COPY // SUB ASSISTANT REGISTRAR To:
1.The Chief Secretary to Government, Government of Tamil Nadu, Secretariat, Chennai-9.
2.The Principal Secretary to Government (Revenue), Government of Tamil Nadu, Secretariat, Chennai-9.
3.The Additional Chief Secretary to Government, Public Works and Irrigation Department, Government of Tamil Nadu, Secretariat, Chennai-9.
4.The District Collector, Office of the District Collector, Ranipet-632401.
5.The Block Development Officer, (B.P.), Sholinghur Panchayat, Union, Sholinghur, Ranipet, District-631102.
6.The Tahsildar, Taluk Office, Sholinghur, Ranipet District.
631102.
7.The Revenue Inspector, Taluk Office, Sholinghur, Ranipet District. 631102.
+1cc to M/s.E.Sundaram, Advocate Sr.27189 +1cc to the Government Pleader Sr.27533, 27709 +2cc to M/s.Prakash Adiapadam, Advocate Sr.27667 W.P.No.6756 of 2022 & WMP.No.6836 of 2022 rsi[co] srg 05/05/2022