Palaniappan vs The District Collector and The Assistant Engineer, PWD - WRO, Irrigation Section

S. Manikumar, J.—The petitioner seeks to quash the notice, dated 26.03.2008, issued by the second respondent. The impugned notice

proceeds that the petitioner has encroached upon a portion of Veerakiyam Eri in Balarajapuram Village, to an extent of 50m2 in Survey Field

Number 197/3 and therefore, the second respondent has directed the petitioner to remove such encroachment within 12 days from the date of

receipt of notice.

The case of the petitioner is that he has purchased the property by way of an unregistered Sale Deed in the year 1989 and put up a construction

in Old Door No. 112, New No. 122-AQ, Veerakiyam, Balarajapuram, Krishnarayapuram, Karur, comprised in Survey No. 199/3 in Survey

Field No. 197/3. Since then, he has been residing in that house and paying tax to the authorities regularly and the assessment number is 587.

Possession of the petitioner is acknowledged by the State. Be that as it may, that on 26.03.2008, the Assistant Engineer, PWD-WRO, Irrigation

Section, Kulithalai, the second respondent, without issuing any show cause notice as mandated u/s 6 of the Land Encroachment Act, has straight

away passed the impugned order directing the petitioner to vacate the said premises within 21 days from the date of receipt of the notice. The

notice was served on him on 28.03.2008. Aggrieved by the same, the petitioner has filed the present writ petition.

It is the contention of the learned Counsel for the petitioner that without issuing a statutory notice u/s 6 of the Land Encroachment Act to the

petitioner and without giving sufficient opportunity, the respondents are attempting to forcibly evict him alleging that he is an encroacher. It is the

grievance of the petitioner that without calling for an enquiry or marking the encroached portion, the respondents have issued the impugned order.

Learned Counsel for the petitioner submitted that the second respondent has fixed the survey margin in a wrong place and erroneously decided

that the petitioner as an encroacher. He further submitted that as the petitioner has not encroached upon any Tank, the notice issued under the

special enactment be treated as a statutory notice under Land Encroachment Act.

Mr.Pala.Ramasamy, learned Special Government Pleader who took notice on behalf of the respondents, brought to the notice of the Court that

the petitioner has encroached Veerakiyam Eri in Survey Field No. 197/3 and therefore, the second respondent, in exercise of his power conferred

under the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007 has rightly issued the statutory notice in Form No. III under

Sub-Rule (1) of Rule 6 of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Rules, 2007. Placing reliance on a Division Bench

judgment in W.A. No. 4026 of 2004, dated 29.11.2004, he submitted that when the petitioner is an encroacher, he is not entitled to any relief on

equity and therefore, the Writ Petition is liable to be dismissed. A true copy of the map of Tank and its boundaries has also produced.

We have considered the submissions of the learned Counsel appearing for the parties and perused the materials available on record.

The petitioner has disputed that he is not an encroacher on Veerakiyam Eri. Perusal of Form II issued under Sub-Rule(3) of Rule 5 notice

indicates that the Assistant Engineer, PWD-WRO, Irrigation Section, Taluk Office Campus, Kulithalai has issued a statutory notice dated

07.03.2008 notifying that the public are ordered not to encroach upon any land within the marked boundaries of Veerakiyam Tank in

Balarajapuram Village, Krishnapuram Taluk, Karur District and the above said Form II and the Index map of the Tank has been affixed on the

notice by the President, Balarajapuram Panchayat. Perusal of the impugned notice, dated 26.03.2008, issued by the second respondent reveals

that it is a statutory notice as per the provisions of Sub-Rule 1 of Rule 6 of the Tamil Nadu Protection of Tanks and Eviction of Encroachment

Rules, 2007. The contention of the learned Counsel for the petitioner that the said notice has to be treated as a notice u/s 6 of the Land

Encroachment Act cannot be accepted for the simple reason that the authorities have found that there is a prima facie encroachment in Veerakiyam

Eri. Whether the petitioner has encroached upon the Eri or not is a question of fact and sitting under Article 226 of the Constitution of India, we

cannot go into the factual aspects.

While dealing with a pro bono publico litigation against encroachments in Odai, Lake and Water courses, a Division Bench of this Court in L.

Krishnan v. State of Tamil Nadu rep. by its Secretary, Department of Revenue, Land Development, Chennai and Ors. reported in 2005 (4) CTC,

after consideration of catena of decisions, at Paragraphs 6,7,8 and 12 has held as follows:

It is also relevant to state that day in and day out, many such petitions are being filed by way of ''public interest litigation'' alleging encroachments

into ponds/tanks/lake/Odai Porambokes, etc., in different parts of this State, more particularly in villages. Having regard to the acute water scarcity

prevailing in the State of Tamil Nadu as a whole, we feel that a time has come where the State has to take some definite measures to restore the

already ear marked water storage tanks, ponds and lakes, as disclosed in the revenue records to its original status as part of its rain water

harvesting scheme. We also take judicial notice of the action initiated by the State Government by implementing the water harvesting scheme as a

time bound programme in order to ensure that the frequent acute water scarcity classification as Ooranis, Odais and Lakes in the revenue records

are all areas identified in the villages where the rain water gets stored enabling the local villagers to use the same for various purposes through out

the year inasmuch as most parts of the State are solely dependent on seasonal rains both for agricultural operations as well as for other water

requirements. Therefore, it is imperative that such natural resources providing for water storage facilities are maintained by the State Government

by taking all possible steps by taking preventive measures as well as by removal of unlawful encroachments.

In this context, it will be appropriate to refer to the judgment of the Hon''ble Supreme Court Hinch Lal Tiwari Vs. Kamala Devi and Others, are

relevant for our present purpose which read as under:

On this finding, in our view, the High Court ought to have confirmed the order of the Commissioner. However, it proceeded to hold that

considering the said report the area of 10 biswas could only be allotted and the remaining five biswas of land which have still the character of a

pond, could not be allotted. In our view, it is difficult to sustain the impugned order of the High Court. There is concurrent finding that a pond exists

and the area covered by it varies in the rainy season. In such a case no part of it could have been allotted to anybody for construction of house

building or any allied purposes.

It is important to notice that the materials resources of the community like forests, tanks, ponds, hillock, mountain, etc., are nature''s bounty.

They maintain delicate ecological balance. They need to be protected for a proper and healthy environment which enables people to enjoy a

quality life which is the essence of the guaranteed right under Article 21 of the Constitution. The Government, including the Revenue Authorities

i.e., Respondents 11 to 13 having noticed that a pond is falling in disuse, should have bestowed their attention to develop the same which would,

on one hand, have prevented ecological disaster and on the other provided better environment for the benefit of the public at large. Such vigil is the

best protection against knavish attempts to seek allotment in non-abadi sites.

A reading of the above referred passages of the said Judgment shows that the endeavour of the State should be to protect the material

resources like forests, tanks, ponds, hillock, mountain, etc., in order to maintain the ecological balance. The Hon''ble Supreme Court has

highlighted that such maintenance of ecological balance would pave the away to provide healthy environment which would enable the people to

enjoy a quality life which is essence of the right guaranteed under Article 21 of the Constitution. While on the one hand, the State is bound to

maintain the natural resources with a view to keep the ecological balance intact and thereby provide a healthy environment to the public at large in

the State of Tamil Nadu, having regard to the precarious water situation prevailing in the major part of the year, it is imperative that such noted

water storage resources, such as tanks, odais, oornis, canals, etc., are not obliterated by encroachers.

Apart from the above we may also refer to Article 51-A(g) of the Constitution which makes it a fundamental duty of every citizen ""to protect

and improve the natural environment including forests, lakes, rivers and wild life"". This duty can be enforced by the Court, vide Animal and

Environment Legal Defence Fund v. Union of India (supra, vide para-15).

In view of the decision of this Court and having regard to the facts of this case, we are satisfied that the petitioner is not entitled to seek any

remedy for conversion of the impugned notice, under the Land Encroachment Act and there is substantial compliance of the provisions of the Tamil

Nadu Protection of Tanks and Eviction of Encroachment Act and Rules, 2007.

Hence, the writ petition fails and the same is dismissed. No costs. Consequently, M.P.(MD)No. 1 of 2008 is also dismissed.