IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23-12-2008 CORAM THE HONOURABLE MR. JUSTICE P.K. MISRA AND THE HONOURABLE MR. JUSTICE K. CHANDRU WRIT PETITION NO.1965 OF 2007 and M.P.NO.1 OF 2007 M. Subramaniam S/o. Mariappa Gounder .. Petitioner Vs. 1. The Government of Tamil Nadu, Rep. by its Secretary to Government, Department of Revenue (Land Development), Fort St. George, Chennai 600 009. 2. The District Collector, Erode District, Erode. 3. The Tahsildar, Bhavani Taluk, Bhavani. 4. The Executive Engineer, Water Resources Organisation, Public Works Department, Bhavani Sagar, Erode District. 5. M. Subramaniam S/o. Marappa Gounder (Respondent No.5 impleaded as per order dt. 1.10.07 in M.P.No.2/2007) .. Respondents Petition filed under Article 226 of the Constitution of India for the issuance of Writ of Mandamus, directing the respondents to remove the Encroachments in Survey Nos.178, 179/2, 72 and 74 in Ennamangalam eri, Bhavani Taluk, Erode District. For Petitioner : Mr.M.S. Palaniswamy For Respondents 1to4 : Mr.M. Dhandapani Respondent-5 : Mr.N. Manokaran - - - J U D G M E N T
P.K. MISRA, J This writ petition has been filed for issuing a writ of Mandamus directing the respondents 1 to 4 to remove the encroachments in Survey Nos.178, 179/2, 72 and 74 in Ennamangalam eri, Bhavani Taluk, Erode District.
2. The allegations made in the writ petition are to the following effect :-
Ennamangalam Eri (lake) is situated in R.S.No.178 with an area of 46.76.70 Hectares. The water from such lake is used for irrigation of ayacut lands situate in the East and West of the lake. Such lake irrigates about 31.60.5 Hectares of lands and, moreover, because of the lake, percolation of water in the wells of the adjoining area is maintained. The allegation is to the effect that influential persons have encroached upon the water spread area on the western and northern sides of the lake. The rain water from Burgur hills and the waste lands on the North and West of the lake is the source of water and if the water flow is obstructed on the northern and western sides by cultivation, the flow of water to the lake would be obviously affected. The encroachers have raised the level of ground by encroaching upon the lake area, thus diminishing the water spread area. By referring to several decisions such as 2001(6) SCC 496 (HINCH LAL TIWARI v. KAMALA DEVI AND OTHERS), 2005(4) CTC 1 (L. KRISHNAN v. STATE OF TAMIL NADU AND OTHERS), the petitioner has prayed for effective steps to be taken to remove the illegal encroachers. It is further stated that representation to that effect has been made before the second respondent on 18.12.2006 by the villagers numbering about 120, but except issuing some notices under Section 7 of the Land Encroachment Act, no effective steps have been taken.
3. During pendency of the writ petition, an Advocate was appointed as Commissioner to inspect and submit a report. The Advocate Commissioner in his report has indicated that there has been encroachment by several persons for the purpose of carrying out agriculture and the encroachment lands are under cultivation. That apart, there are 16 houses constructed by landless agricultural labourers. The Advocate Commissioner has noted that, even according to the petitioner, the encroachments have been in existence for more than 50 years. It has been further stated that "there does seem to be some simmering local fued which has lead to levelling allegations about encroachments between what appear to be different factions in the village."
4. The petitioner has not impleaded the alleged encroachers and only one of them has got himself impleaded as Respondent No.5. Under these circumstances, the question arises is as to what order should be passed ?
5. There is no doubt that it is the duty of the State Government to protect the properties belonging to the State and more particularly to ensure that there is no unauthorised encroachment in natural water-bodies. At the same time, merely because there is an allegation of encroachment, without hearing the alleged encroachers, the High Court should not pass a specific order to remove any particular encroachment as, such an order would be violative of the principles of natural justice. In the present case, the alleged encroachers have not been impleaded. In such a scenario, it would not be appropriate on our part to pass a specific order of removal of any particular encroacher.
6. In the above context, it is also necessary to emphasise that many instances have come to our notice where, seizing upon the general observation made by the High Court that steps should be taken to remove the encroachment, the Government officials, without taking recourse to appropriate procedure contemplated under law, have been proactive to neck out the encroachers without giving them any opportunity of hearing. In this context, it is apparent that the Government officials have totally lost sight of the Full Bench decision of this Court reported in 2005(2) CTC 741 (Ramaraju v. State of Tamil Nadu and others), wherein it has been emphasised that before removal of any encroachment, the appropriate procedure contemplated under law has to be followed. Whenever any order has been passed by the High Court that the encroachers should be removed, it obviously implies that such encroachers should be removed in accordance with law and not otherwise.
7. In the above context, the decision of the Supreme Court reported in 2004-3- L.W. 143 (RAME GOWDA (Deceased) by LRs v. M. VARADAPPA NAIDU (Deceased) by LRs & ANOTHER) is required to be borne in mind. It is well settled principle that in India, no person is entitled to take law in his own hands and forcibly remove any person from possession, even if such person is a trespasser.
8. In the above view of the matter, the writ petition is disposed of in the following manner.
It is the duty of the State to protect the properties belonging to the State. Therefore, the respondents 1 to 4 should take appropriate action in accordance with law to remove any unauthorised encroachment. However, this does not mean that the encroachers should be removed without following the procedure contemplated under law, which has already been clarified in the Full Bench decision reported in 2005(2) CTC 741 (cited supra). The authorities are also required to keep in view the G.O.Ms.No.854 dated 30.12.2006 and also the observations made by a Division Bench of this Court in W.P.NOs. 16636 of 1995 & 22274 of 2007 (Sivakasi Region Tax Payers Association vs. State of Tamil Nadu & Others) disposed of on 29.4.2008. No costs. Consequently, the connected miscellaneous petition is closed.
(P.K.M.,J) (K.C.,J) 23-12-2008 Index : Yes / No Internet: Yes / No dpk To 1. The Government of Tamil Nadu, Rep. by its Secretary to Government, Department of Revenue (Land Development), Fort St. George, Chennai 600 009. 2. The District Collector, Erode District, Erode. 3. The Tahsildar, Bhavani Taluk, Bhavani. 4. The Executive Engineer, Water Resources Organisation, Public Works Department, Bhavani Sagar, Erode District. P.K. MISRA, J and K. CHANDRU, J JUDGMENT IN WP.1965/2007 23-12-2008