Madras High Court
Adaikkammal vs The State Rep. By on 14 December, 2018
Author: R.Subbiah
Bench: R.Subbiah, B.Pugalendhi
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 14.12.2018
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBBIAH
AND
THE HONOURABLE MR. JUSTICE B.PUGALENDHI
W.P.(MD)No.22837 of 2018
and W.M.P.(MD) No.20711 of 2018
Adaikkammal : Petitioner
Vs.
The State Rep. by
1. The District Collector,
Pudukkottai District,
Pudukkottai.
2.The Revenue Divisional Officer,
Office of the Revenue Officer,
Pudukkottai.
3.The Thasildar,
Thirumayam Taluk,
Thirumayam,
Pudukkottai.
4.The Block Development Officer,
Thirumayam Panchayat Union,
Thirumayam,
Pudukkottai. : Respondents
PRAYER: Petition is filed under Article 226 of the Constitution of
India, to issue a Writ of Certiorarified Mandamus calling for the
records pertaining to the impugned order passed by the fourth
respondent vide his proceedings in Na.Ka. T6/1380/18 dated
30.10.2018 and quash the same as illegal and consequently direct the
http://www.judis.nic.in
2
respondent not to evict the petitioner from S.F.No.193/7 situated at
Poolampatty Village, Thirumayam Taluk, Pudukkottai District without
following due process of law.
For Petitioner : Mr.S.Karthick Subramanian
For R1 to R3 : Mr.M.Jeyakumar
Additional Government Pleader
For R4 : Mr.D.Muruganantham
Additional Government Pleader
ORDER
[Order of the Court was made by R.SUBBIAH, J] This Writ Petition has been filed for issuance of Writ of Certiorarified Mandamus to quash the impugned order passed by the fourth respondent vide his proceedings in Na.Ka. T6/1380/18 dated 30.10.2018 and for consequential direction to the respondent not to evict the petitioner from S.F.No.193/7 situated at Poolampatty Village, Thirumayam Taluk, Pudukkottai District without following due process of law.
2.Heard Mr.S.Karthick Subramanian, learned counsel appearing for the petitioner, Mr.M.Jeya Kumar, learned Additional Government Pleader appearing for the respondents 1 to 3 and Mr.D.Muruganantham, learned Additional Government Pleader appearing for the fourth respondent.
http://www.judis.nic.in 3
3.The case of the petitioner is that the petitioner's father had purchased a land in Pudukkottai District, Poolampatty Village in S.F. No.193/22 and 193/24 for an extent of 3902 sq. ft and constructed a house in the year 2008. On the northern side of the house, a Cart Track is available. According to the petitioner, he has not encroached any piece of the land in the Cart track and he constructed a house and compound wall without encroaching the Cart track. One Palaniappan has filed a writ petition in W.P.(MD) No.16936 of 2018 alleging that the petitioner and some others have encroached water body. But the said Palaniappan has not impleaded the petitioner as a party in that writ petition. By order dated 31.07.2018, this Court, without going into the merits of the case, directed the Block Development Officer to consider the representation of the petitioner. In pursuance of the order, the Block Development Officer, without giving any opportunity to the petitioner, passed the impugned notice. Challenging the same, the present writ petition has been filed.
4. The learned counsel for the petitioner submitted that the impugned notice has been issued without issuing notice and without calling for any explanation from the petitioner to put forth his contention as per Section 7 of the Tamil Nadu Land Encroachment Act, 1905, and therefore, the impugned notice is liable to be quashed.
http://www.judis.nic.in 4
5. The learned Additional Government Pleader submitted that as per the provisions of Section 131 of the Tamilnadu Panchayats Act, natham vandipathai salai was vested with Panchayat and since there was an encroachment, the Tahsildar conducted a survey and sent a report to the Block Development Officer to initiate action.
6.The grievance of the petitioner is that before issuing the impugned order, no show cause notice was issued to him calling for explanation. In support of his contention, the learned counsel for the petitioner had relied upon a Full Bench judgment of this Court reported in 2005 (2) CTC 741, [RAMARAJU V. THE STATE OF TAMIL NADU, REP BY ITS SECRETARY TO GOVERNMENT REVENUE DEPARTMENT, FORT ST. GEORGE, CHENNAI AND OTHERS] wherein in paragraph No.38 it has been held as follows:
“38. It is of course true that in the two counter affidavits, the municipalities have taken the stand, quite expectedly and understandably, that they have no intention to take any step for removal of any encroachment from the road or road margins without following the due procedure of law and they do not have the intention to take steps for eviction of any person from any land not belonging to the municipalities. However, since the news item appearing in the News Papers gives the impression as if Rajapalayam http://www.judis.nic.in 5 Municipality intended to remove all encroachments pursuant to the order passed by the High Courts in W.P.No. 689 of 2005 and since certain misconceptions have arisen as if the Division Bench has given a blanket direction for removal of encroachment even without following due process of law, the matter is required to be clarified in the following manner :
(1) If the encroachment is on road or road margins, vested in Municipalities, the removal if any is to be effected only after following the procedure contemplated in Chapter IX of the Tamil Nadu District Municipalities Act and more particularly the provisions contained in Section 182 and Section 183(6) Before taking action under Section 182 of the District Municipalities Act, notice in writing giving atleast two weeks time should be served and, if the person avoids to receive the notice, such notice can be effected by affixure. However, notice by any other means, such as through public announcement or beating of drums or by general notice in newspapers, may not be sufficient.
(2) The decision in W.P.No. 689 of 2005 cannot be construed as having abrogated the statutory power of the Council under Sections 182 and 183. The Council may grant licence to put up verandas, balconies, sunshades, weather-frames and the like. Similarly, the Council has power to lease road sides and street margins for occupation on such terms and conditions and for such period as the Council may fix. However, such power under Sections 183(1) and 183(3) should be exercised keeping in view the provisions contained in Section 183(4) and no such licence under Section 183(1) or lease under Section 183(3) should be granted if the projection, construction or occupation is likely to be injurious to health or http://www.judis.nic.in 6 cause public inconvenience or otherwise materially interfere with the use of the road as such. Any projection or construction put up under Section 183(1) or (2) can be removed on expiry of the licence or the lease, as the case may be. Compensation is required to be paid in matters coming within the scope of 182(2).
(3) Payment of property tax, provisions of water connection or electricity by themselves cannot be construed as conferring any independent right, if the encroachment is otherwise unauthorised. (4) The above directions and observations are also applicable to encroachment in respect of road or road margins coming within the jurisdiction of Municipal Corporations or Town and Village Panchayats, in which event, necessary action can be taken by the concerned authorities by following the relevant provisions of law applicable to such Corporations or Panchayats.
(5) To the extent the National Highways Act, 1956 and the Control of National Highways (Land and Traffic) Act, 2002 are applicable, action can be taken only by following the procedure prescribed under such statutes. Similarly the provisions of the Tamil Nadu Highways Act, 2001, are applicable to the Roads coming under the State Act.
(6) If the encroachment is on the land belonging to the Local Authorities, but such land is not part of the road or road margin or roadside land, eviction can be effected by following the procedure contemplated in law, namely, either by taking recourse to the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act, 1975 or any other law applicable or otherwise by taking recourse to Civil Courts and not by use of unilateral force.
(7) So far as the encroachment on the land belonging to the Government is concerned, action http://www.judis.nic.in 7 for eviction if any can be taken only by the appropriate authority and by following the procedure contemplated under the Tamil Nadu Land Encroachment Act, 1905.
(8) The directions issued in W.P.No. 689 of 2005 are applicable to removal of encroachments on roads and road margins and not other lands belonging to the Local Authorities or the State. The said decision should not be construed as giving a licence to the Local Authorities to cancel the existing license or lease or to remove the encroachments without following the procedure contemplated under the law.
(9) If any Civil Courts decree or interim order is holding the field, obviously, no action can be taken, unless and until such a decree or interim order is set aside or vacated in a manner known to law. “
7.It is the duty of the fourth respondent to give notice to the petitioners and hear the petitioner and then pass final orders.
Therefore, we are of the opinion that instead of quashing the impugned notice dated 30.10.2018, it would be treated as a show cause notice. Accordingly, the impugned notice is directed to be treated as show cause notice and the petitioner is directed to give his reply to the above said notice within a period of two weeks from the date of receipt of copy of this order. On receipt of the said reply, the fourth respondent is directed to hold an enquiry and after giving an opportunity of hearing to the petitioners, shall pass appropriate http://www.judis.nic.in 8 orders on merits and in accordance with law, within a period of 8 weeks thereafter. On enquiry, in case, the fourth respondent finds there is any encroachment, he is at liberty to remove the same in accordance with law, after issuing prior notice to the necessary parties. Till such time, status quo shall be maintained.
8.With the above direction, this Writ Petition is disposed of. No costs. Consequently, connected W.M.P.(MD)No.20711 of 2018 is closed.
[R.P.S., J.] & [B.P., J.]
14.12.2018
Index : Yes/No
Internet : Yes/No
CM
To,
1. The District Collector,Pudukkottai District,Pudukkottai.
2.The Revenue Divisional Officer,Office of the Revenue Officer, Pudukkottai.
3.The Thasildar,Thirumayam Taluk,Thirumayam,Pudukkottai.
4.The Block Development Officer,Thirumayam Panchayat Union, Thirumayam,Pudukkottai.
http://www.judis.nic.in 9 R.SUBBIAH, J AND B.PUGALENDHI, J CM Order made in W.P.(MD)No.22837 of 2018 and W.M.P.(MD) No.20711 of 2018 Dated: 14.12.2018 http://www.judis.nic.in