E.N.Palaniswamy, v. The Disrict Collector
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 24.08.2022
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR and THE HONOURABLE MRS.JUSTICE S.SRIMATHY W.P(MD)No.19524 of 2017 and W.M.P.(MD)Nos.15829 of 2017 and 13 of 2018 E.N.Palaniswamy ... Petitioner vs.
1.The District Collector, Dindigul District.
2.The Tahsildar, Dindigul East, Dindigul.
3.The Revenue Divisional Officer, Dindigul Taluk, Dindiugl.
4.The Commissioner, Seelapdi Panchayat Union, Dindigul Taluk, Dindigul.
5.The Commissioner, Dindigul panchayat Union, Dindigul.
... Respondents (R5 impleaded vide order of this Court, dated 24.11.2017 in W.M.P. (MD)No.17277 of 2017) Prayer: Writ Petition filed under Article 226 of Constitution of India, to issue a Writ of Certiorari, to call for the records of the proceedings in Na.Ka.No./2008/2017 Aa.7, dated 07.10.2017 on the file of the third respondent and to quash the same as illegal and without jurisdiction. 1/6
For Petitioner :Mr.Sharath Chandran For R1 to R3 :Mr.N.Satheesh Kumar Additional Government Pleader For R4 :Mr.T.S.Mohamed Mohideen ***
ORDER
(Order of the Court was made by S.S.SUNDAR, J.) This Writ Petition is filed challenging the impugned order passed by the fifth respondent, dated 07.10.2017 directing the petitioner to remove the encroachments alleged to have been made by the petitioner within a period of one week from the date of receipt of a copy of the notice.
2.The fifth respondent has issued the impugned notice under Section 131(2) of Tamil Nadu Panchayats Act, 1994, to remove the encroachment in a water body. The Full Bench of this Court in the case of T.K.Shanmugam vs. the State of Tamil Nadu and others reported in 2015-5-L.W.397, held as follows:
"44.The Government Orders starting from 30.12.2006 in G.O. (Ms)No.854, Revenue Department and subsequent Government Orders in G.O.Ms.No.498, 711, 34, 43 and 372 dated 05.09.2007, 30.11.2007, 23.01.2008, 29.01.2010 and 26.08.2014 respectively, with particular reference to encroachments in water bodies are in clear violation of the public trust doctrine. Moreover, Article 51-A of the Constitution of India enjoins that it shall be the duty of every citizen of India, inter alia, to protect and improve the national environment including forests, lakes, 2/6
rivers, wildlife and to have compassion for living creatures. This Article is not only fundamental in the governance of the country but a duty on the State to apply these principles in making laws and further to be kept in mind in understanding the scope and purport of the fundamental rights guaranteed by the Constitution including Articles 14, 19 and 21 of the Constitution and also the various laws enacted by Parliament and the State Legislatures. But unfortunately, the State, by passing the above said Government Orders, actively encourages encroachers of water bodies, to indulge in illegal and unlawful activities and also bent upon regularizing their possession which has to be deprecated.
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 Tamil Nadu reported 2005-3-L.W. 313 = 2005(4) CTC 1, as quoted with the approval by the Hon'ble Supreme Court in Jagpal Singh vs. State of Punjab, reported in 2011-3-L.W.17=(2011) 11 SCC 396, and the observations contained in paragraph 20(d)(3) of the judgment of 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."
3.The local body does not have the jurisdiction or authority to initiate action for removal of encroachment in water bodies, even if the same is vested in it. Though the provisions of Tamil Nadu Protection of Tanks and Eviction of Encroachments Act, 2007, can be applied for removal of encroachment in water bodies, which is under the control of Public Works Department, the provisions of the Act will not be applicable in respect of the water bodies that comes under the control of local body. Therefore, this Court holds that the Revenue Department should remove 3/6
those encroachments by following the provisions of Tamil Nadu Land Encroachment Act, in case, the encroachment is in respect of the water bodies, that vest with the local body. Therefore, the impugned order challenged in this Writ Petition cannot be sustained. 4.However, the encroachment in water bodies cannot be permitted. Therefore, the impugned notice issued by the fifth respondent is quashed. There is no dispute that the entire encroachment in which the petitioner is in occupation falls within the water body. Therefore, there is no requirement of survey or demarcation of the encroachment in this case, as directed by this Court in the case of T.S.Senthil Kumar vs. Government of Tamil Nadu reported in 2010 (3) MLJ 771, and by this Court following the judgment of Honourable Supreme Court in the case of Madhav Rao Schindia v. Ramesh Jatav [(2006) 1 SCC 379]. However, the procedure contemplated under the Land Encroachment Act shall be strictly followed by the second respondent while removing the encroachment from the water body.
5.Considering the fact that the local body has no power or jurisdiction to initiate action for removal of encroachment in exercise of their power under Section 131(2) of Tamil Nadu Panchayats Act, 1994, this Court directs the second respondent to proceed further, as indicated 4/6
in the judgment of Honourable Full Bench of this Court, referred to above. It is made clear that the petitioner is directed to submit his objection in response to the notice to be issued under Section 7 of the Tamil Nadu Land Encroachment Act. When the petitioner submit his representation or explanation or objection to the show cause notice issued under Section 7 of the Act, the second respondent may consider such objection of the petitioner before passing final order. The second respondent is directed to commence the proceedings within a period of two weeks and shall complete the same within a period of twelve weeks from the date of receipt of a copy of this order. 6.With the above directions, this Writ Petition is disposed of. No costs. Consequently, connected miscellaneous petitions are closed. [S.S.S.R., J.] [S.S.Y., J.] 24.08.2022 Index : Yes / No cmr To 1.The District Collector, Dindigul District.
2.The Tahsildar, Dindigul East, Dindigul.
3.The Revenue Divisional Officer, Dindigul Taluk, Dindiugl.
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S.S.SUNDAR, J.
and S.SRIMATHY , J.
cmr W.P(MD)No.19524 of 2017 24.08.2022 6/6