Santhana Krishnan vs The District Collector & Ors.

“5.

A reading of Section 131 of the Tamil Nadu Panchayats Act, 1994, justifies the contention of the learned counsel for the petitioner, inasmuch as the said provision requires the Panchayat President or the Executive Officer of the Panchayat to seek eviction of encroachers through the Revenue Department by invoking the provisions of the Tamil Nadu Land Encroachment Act, 1905.”

“10.

We do not find any substance in the above said submissions made by the learned counsel for the petitioner. A reading of Section 131(2) of the Tamil Nadu panchayats Act, 1994 will make it abundantly clear that not only a power to remove encroachments made in or over the properties vested with or belonging to the panchayat is conferred on the executive authority of the panchayat but also a duty is cast upon the executive authority of the panchayat to secure the removal of such encroachments. The section specifically provides that it shall be the duty of the executive authority to initiate proceedings under the Act either suo motu or an obtaining a report from the Village Administrative Officer to remove such encroachments and secure the removal of encroachments.”

“12.

The above Notification, issued by the Government of Tamil Nadu, is definite, with regard to appointment of Presidents of Village Panchayats, as Executive Authority. Hence, the respondent squarely comes under the category of 'Executive Authority', who has been duly authorised by the Government, to perform the functions, as contemplated in Sub-section (2) of Section 131.

13.

The next part of the question posed above is, with regard to the power of the President of a Panchayat, to secure removal of encroachment.

14.

A careful scrutiny of the aforementioned provision would go to show that the Executive Authority, even suo motu, can institute proceedings under the Act and, in case he could not obtain the removal of encroachment, then, he has to refer the matter to the officers of the Revenue Department, who would shoulder the responsibility of initiating the proceedings under the Tamil Nadu Land Encroachment Act,1905, for securing the removal. The above said provision of law is so clear, to arrive at a conclusion, as aforestated.

15.

Learned counsel for the petitioner would also submit that a Division Bench of this Court, in V.Balamurugan v. The District Collector, 2007 (3) CTC 56, has categorically held that the executive power of a Village Panchayat shall vest with the Executive Authority, appointed by the Government, and removal of shop, being executive power, cannot be exercised by the elected Presidents of Panchayats and any order passed by such President of Village Panchayat is liable to be quashed.

16.

In the said case, the Division Bench discussed the matter on the strength of Section 131 (1) (a) of the Act with regard to removal of encroachment and also Section 131 (2), for the procedure to be adopted. After a thorough discussion on the subject, the Division Bench concluded that without referring to any of the methods prescribed under the Act, the President of Village Panchayat had assumed the power of Executive Authority and passed the order impugned, which was liable to be quashed, for lack of jurisdiction.

17.

Learned counsel for the petitioner also cited another unreported Division Bench decision of this Court, dated 23.04.2007, in M.Abbas v. The District Collector and others, W.P.No.6949 of 2005, and other connected matters, wherein, the Division Bench opined that so far as clause (2) of Section 131 of the Act is concerned, a reference has been given by the President of the Panchayat, which does not empower the President to remove the encroachment, though he may bring to the notice of the competent authority. As an epilogue, this Court passed orders, directing the respondent/Government officials not to give effect to the notice impugned, issued by the President of the Village Panchayat, and also directing the President of Vilpatti Panchayat to report, if any encroachment is made on properties vested in the village panchayat or panchayat union council to the officer concerned under Section 131 (2) of the Act and that the authority concerned would proceed with the matter in accordance with law, after notice to the encroachers and follow the decision of the Full Bench of this Court in Ramaraju, T. v. The State of Tamil Nadu, 2005 (2) CTC 741.

18.

It appears, that at the time of hearing of the matters before the above different Benches, the Government side had not brought to the notice of the Court the existence of G.O.Ms.No.225, whereby the Government appointed the President of Village Panchayat, as Executive Authority. Had the said G.O. been produced before the said Division Benches, the observations in the said decisions would have been different.

19.

After bestowing careful attention to the materials available and in the light of the G.O. passed, it is to be held that the Village Panchayat is an Executive Authority and the said Executive Authority has got every power to issue notice to the encroachers. The provision does not authorise him to proceed to take forcible physical possession of the property from the encroachers. If he is unable to get possession from the encroachers on issuance of necessary notice, the Revenue Department would take up the job of initiating further action against the encroachers under the Tamil Nadu Land Encroachment Act,1905, to obtain possession from them.”

“10.

The Division Bench extracted Section 131 of the Tamil Nadu Panchayats Act, 1994 and clearly observed in paragraph No.9 that the executive authority or the Commissioner either upon a report of the Village Administrative Officer concerned as to the encroachments or suo motu can initiate proceedings under the Tamil Nadu Panchayats Act, 1994, for removal of encroachments. The Division Bench, further, observed that in case the executive authority of the Panchayat finds it impossible to get the encroachment removed, then the revenue department will come into picture to initiate action under the provisions of the Act. The observation made by the Division Bench clearly shows that it is only in case the executive authority of the Village is unable to get possession from the encroachers, he has to approach the revenue department. However, that does not mean that the executive authority of the Village is not empowered to evict the encroachers.

11.

The judgment in G.Radhakrishnan's case would not help the petitioners to contend that the executive authority of the Village is not empowered to evict the encroachers. Sub-Section (2) of Section 131 of the Tamil Nadu Panchayats Act, 1994, empowers the executive authority of the Village to evict the encroachers. There is an option given to the executive authority to approach the revenue authority, in case they are not in a position to clear the encroachment. However, that does not mean that the executive authority of the Village is helpless in the matter of eviction. We are, therefore, of the view that there is no merit in the contention taken by the learned Senior Counsel with respect to the power of the Village Panchayat to evict the encroachers.”

“9.

Similar view has also been taken by a subsequent Division Bench of Madurai Bench of this Court in W.P.(MD) No.8003 of 2007 dated 30.10.2007 (G.Radhakrishnan vs. The President, Keayakottai Panchayat) = (2008) MLJ 1132 and the relevant portions are extracted here under :

''18. It appears that at the time of hearing of the matters before the above different Benches, the Government side had not brought to the notice of the Court the existence of G.O.Ms.No.225, whereby the Government appointed the President of Village Panchayat, as Executive Authority. Had the said G.O. been produced before the said Division Benches, the observations in the said decisions would have been different. 19. After bestowing careful attention to the materials available and in the light of the G.O. passed, it is to be held that the Village Panchayat is an Executive Authority and the said Executive Authority has got every power to issue notice to the encroachers. The provision does not authorise him to proceed to take forcible physical possession of the property from the encroachers. If he is unable to get possession from the encroachers on issuance of necessary notice, the Revenue Department would take up the job of initiating further action against the encroachers under the Tamil Nadu Land Encroachment Act, 1905, to obtain possession from them.

...

21.

Sections 201 and 202 of the Act prescribe certain procedures, to be adopted by the person, who receives any communication or order from the authority concerned, as to the encroachments. Section 201 empowers the Inspector or any officer or person, whom the Government or the Inspector may empower in this behalf, to call for any document in possession of the Executive Authority. Section 202 authorises the Inspector to suspend or cancel any resolution passed, order issued, or licence or permission granted, if the same is not passed legally or which is an abuse of powers.''

Therefore, when the courts have repeatedly considered the said issue, it is not known why this was not brought to the notice of the Hon'ble First Bench while an unreported order has already been passed on the same issue. As the Government Order issued in the year 1996 was also not brought to the notice, the said judgments clearly suffer from the doctrine of per incurium. Hence, in view of the settled legal position, we hold that by virtue of G.O.(Ms) No.225, Rural Development (C2) Department, dated 15.10.1996, the Village President, being the Executive Officer of the Village is having authority to remove the encroachments in the present case by conducting survey, as the petitioners are all found to be encroachers.”

“2.

Because of a wrong representation made by the learned Government Advocate before a Division Bench of this Court on 24.09.2021 in W.P(MD)No.17354 of 2021, a Division Bench of this Court had directed the Panchayat President to remove the encroachment. Upon a reading of Section 131(2) of the Tamilnadu Panchayat Act, 1994, we have held that the Panchayat President has no power to remove the encroachments. He has to seek assistance of Revenue Tahsildar, who will be entitled to remove encroachments under Sections 6 and 7 of the Land Encroachment Act, 1905. Section 131(2) of the Tamilnadu Panchayat Act, 1994, is only an enabling provision by which the Panchayat President can require the encroachers to remove the encroachers by themselves. If they failed to comply with the requirements, it is for the Panchayat President to approach the concerned Revenue Authority for removal of encroachments. Therefore, the impugned notice, dated 17.05.2023, issued by the President of Semminipatti Panchayat, Melur Panchayat Union, Madurai District, is quashed. The writ petition stands allowed. It is open to the respondents to take appropriate steps under the relevant law for removal of encroachments.

3.

It is open to the learned Special Government Pleader to seek further time before the Court in which the earlier writ petition is pending, in view of the quashment of the proceedings.”

“ 131. Prohibition against obstructions in or over public roads, etc.

(1)

No person shall, except as permitted by Rules made under this Act and except in accordance with the conditions imposed by any licence made requisite by such Rules -

(a)

build any wall or erect any fence or other obstruction or projection or make any encroachment whatsoever, whether permanent or temporary, [in or over any public road or any property vested in or belonging to or regulated or owned by, a Village Panchayat or Panchayat Union Council] [Substituted for the words 'in or over any public road' by Tamil Nadu Panchayats (Third Amendment) Act, 1999 (Tamil Nadu Act 29 of 1999).];

(b)

make any hole or deposit any matter [in or upon any public road or any property vested in or belonging to or regulated or owned by, a Village Panchayat or Panchayat Union Council] [Substituted for the words 'in or over any public road' by Tamil Nadu Panchayats (Third Amendment) Act, 1999 (Tamil Nadu Act 29 of 1999).];

(c)

work a quarry in or remove stone, earth or other material from any place within twenty metres of a public road or of other immovable property vesting in or belonging to a Village Panchayat or Panchayat Union Council, provided that nothing in this clause shall be deemed to apply to any work which, in the opinion of the Inspector, is done in connection with a bona fide agricultural operation;

(d)

erect any building over any drain or any part thereof;

(e)

plant any tree on any public road or other property vesting in or belonging to a Village Panchayat or a Panchayat Union Council; or

(f)

fell, remove, destroy, lop or strip bark, leaves, or fruits from, or otherwise damage, any tree which is growing on any such public road or other property or on any poramboke land, the use of which is regulated by a Village Panchayat under section 134 or section 135 and the right to which has not been established by such person as vesting in or belonging to him.

(2)

It shall be the duty of the Village Administrative Officer of every revenue village to report on encroachments on properties vested in Village Panchayats or Panchayat Union Councils to the Executive Authority or the Commissioner concerned and to the officer of the Revenue Department, and [it shall be the duty of the Executive Authority or the Commissioner concerned either suo motu or on obtaining a report from the Village Administrative Officer in this regard to institute proceedings under this Act] [Substituted for the words 'it shall be the duty of the Executive Authority or the Commissioner concerned to institute proceedings under this Act' by Tamil Nadu Panchayats (Third Amendment) Act, 1999 (Tamil Nadu Act 29 of 1999).] and secure the removal of the encroachments within such time as may be specified by the Government by general or special order. If the removal of the encroachments has not been secured within the period specified in such order, the officers of the Revenue Department shall institute proceedings under the Tamil Nadu Land Encroachment Act, 1905 (Tamil Nadu Act III of 1905 and secure such removal.”