Idol At Sakthi Kumaran Senthil Temple v. The District Collector
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 23.11.2023
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN AND THE HONOURABLE MR.JUSTICE B.PUGALENDHI and W.M.P.(MD)Nos.4217, 4220 and 4221 of 2022 Idol at Sakthi Kumaran Senthil Temple, Through its Founder and Managing Trustee, SP.Lakshmanan, Muthalamman Koil Padithurai Street, Paramakudi, Ramanathapuram District.
... Petitioner Vs.
1.The District Collector, Ramanathapuram District, Ramanathapuram.
2.The Assistant Engineer, Water Resources Department, Parthibanur Regulations Section, Paramakudi, Ramanathapuram District.
3.The Tasildhar, Paramakudi Taluk, Ramanathapuram District.
... Respondents 1/8
Prayer : Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorari, calling for the records pertaining to the letter Ka.No.15/2022/Vu.Po./Pa.Maa.A/Parama/ dated 27.02.2022 and consequential Form III dated 15.03.2022 issued by 2nd Respondent under the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act 2007 in respect of Petitioner/Temple situated in Muthalamman Kovil Padithurai, Paramakudi and quash the same. For Petitioner : Mr.S.Manohar For Respondents : Mr.V.Nirmal Kumar, Government Advocate.
ORDER
Heard the learned counsel on either side.
2.The case of the respondents is that the petitioner had committed encroachment in respect of Vaigai river. Form III notice had been issued under the provisions of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act 2007.
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3.The learned counsel appearing for the petitioner pointed out that the encroachment of river poramboke cannot be dealt with under 2007 Act and he relied on the decision of the Hon'ble Full Bench reported in 2015 (6) CTC 369 (T.K.Shanmugam V. State of Tamil Nadu). Paragraph Nos.10 and 45 of the said judgment had held as follows:- " 10. The order of reference dated 05.08.2015, passed by the First Bench in W.P.No.1294 of 2009, reads as follows:- The public interest litigation seeks patta rights for the persons who have encroached on land, which is undisputedly water course land. The claim of the petitioner is predicated on a long period occupation.
2. The submission of the learned counsel for the petitioner is that the judgment of the Division Bench of this Court in L.Krishnan Vs. State of Tamil Nadu (2005
(4) CTC 1) seeking removal of encroachment from water bodies is general in character, as also the observations of the Honourable Supreme Court in different judicial pronouncements. He submits that this aspect has been examined by the Division Bench of this Court in Sivakasi Region Tax Payers Association Vs. State of Tamil Nadu, rep., by its Secretary to 3/8
Government & Others (CDJ 2008 MHC 2127), where it has been observed that in pursuance to the judgment of the Division Bench of this Court in L.Krishnan's case (supra), the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007, came into being. This Act provides for checking encroachment and eviction of encroachment in tanks which are under the control and management of Public Works Department. It is, thus, submitted that such of the tanks which do not fall within the purview of the Act cannot be subjected to requiring protection from encroachment and this, persons like the petitioner cannot be evicted.
3. The question thus arises for consideration is whether the provisions of the said Act in effect in any manner dilutes the wider compass of the observations made in L.Krishnan's case (supra) or any other judgments of the Hon'ble Supreme Court, requiring protection of water bodies.
4. We are of the view that this matter needs to be examined by a Larger Bench of this Court. Papers be prepared. The matter be laid before the Full Bench on 02.09.2015.
5. We appoint Mr.Naveen Kumar Murthi as Amicus to assist us in this matter and a complete set be supplied by the Registry to him.
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...
45. In the light of the above, we answer the reference on the following terms:- " The provisions of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007, does not in any manner dilute the observations/directions issued in L.Krishnan Vs. State of TamilNadu reported in 2005 (4) CTC 1, as quoted with the approval by the Hon'ble Supreme Court in Jagpal Singh Vs. State of Punjab, reported in (2011) 11 SCC 396, and the observations contained in paragraph 20(d)(e) of the judgment of the Division Bench in T.S.Senthil Kumar, Vs. Government of Tamil Nadu, reported in 2010(3) MLJ 771 and that the tanks which do not fall within the purview of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007, also require protection from encroachment and any encroachment made in such Tanks or Water bodies have to be removed by following the provisions of the Tamil Nadu Land Encroachment Act, 1905."
4.Under the provisions of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, rivers are not specifically dealt with. We are therefore of the view that the encroachment on river poramboke will 5/8
have to be dealt with under the provisions of the Tamil Nadu Land Encroachment Act 1905.
5.In this view of the matter, Form III notice is quashed. The competent authorities are at liberty to take action as per law. This writ petition stands allowed on these terms. No costs. Consequently, connected miscellaneous petitions are closed. (G.R.S.J.,) & (B.P.J.,) 23.11.2023 NCC : Yes/No Index : Yes / No Internet : Yes/ No ias To:- 1.The District Collector, Ramanathapuram District, Ramanathapuram.
2.The Assistant Engineer, Water Resources Department, Parthibanur Regulations Section, Paramakudi, Ramanathapuram District.
3.The Tasildhar, Paramakudi Taluk, Ramanathapuram District.
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G.R.SWAMINATHAN, J.
and B.PUGALENDHI, J.
ias 23.11.2023 8/8