IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 10..02..2010 C O R A M The Honourable Mrs. Justice Prabha Sridevan and The Honourable Mr. Justice M. Sathyanarayanan Writ Petition No.20021 of 2008 T.S. Senthil Kumar .. Petitioner versus 1. The Government of Tamil Nadu, Rep. by its Secretary, Public Works Department, Fort St. George, Chennai-9. 2. The Chief Engineer (Vellore Region), Water Resources Organisation, Public Works Department, Vellore. 3. The District Collector, Vellore District. 4. Junior Engineer, Water Resources Organisation, Public Works Department, Gudiyattam, Vellore District. 5. The Tahsildar, Gudiyattam, Vellore District. .. Respondents Prayer : Petition filed under Article 226 of the Constitution of India seeking a writ of declaration declaring Sections 4, 5, 6, 7, 8, 9 and 10 of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007 as null and void and contrary to Article 14 of the Constitution of India and consequently quash the impugned order of the 4th respondent dated 24.7.2008. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Ms. G. Padmavathi for Mr. K.A. Ravindran For Respondent-1 : Mr. M. Dhandapani, Spl. Govt. Pleader O R D E R Prabha Sridevan, J. This writ petition has been filed for a declaration that Sections 4, 5, 6, 7, 8, 9 and 10 of the Tamil Nadu Protection of Tanks and Eviction of Encroachments Act, 2007 as null and void and contrary to Article 14 of the Constitution of India and also to quash the impugned order dated 24.7.2008 passed by the fourth respondent herein. 2. Pending the writ petition, directions had been issued for giving an opportunity to the petitioner to reply to the show cause notice and until any order was passed, there can be no eviction of the petitioner. Therefore, the individual and personal grievance of the petitioner has been addressed by the interim orders of this Court. But, the learned counsel for the petitioner submitted that the grounds of attack on the constitutionality of the provisions of the Act still remain and made her submissions. 3. According to the learned counsel, the impugned Sections of the Act confer upon the Executive, an unguided and uncanalised discretionary power, since they deny to the person aggrieved an opportunity of being heard. The provisions do not contemplate any procedure to be adopted for hearing, nor for any enquiry of the affected persons prior to the issuance of the eviction order and therefore, they should be struck down. Learned counsel referred to Government of Mysore vs. J.V. Bhat, 1975 (2) S.C.R. 407 and The Scheduled Caste & Weaker Section Welfare Association vs. State of Karnataka, 1991 (1) U.J. (S.C.) 628 = AIR 1991 SC 1117 = 1991 (2) SCC 604. 4. Mr. M. Dhandapani, learned Special Government Pleader referred to L. Krishnan vs. State of Tamil Nadu, A.I.R. 2005 Madras 311, which perhaps was the starting point for the State of Tamil Nadu to enact this law and submitted that the "right to water" is part of right to life guaranteed under Article 21 of the Constitution and if all natural water storage resources are encroached upon indiscriminately, then the consequences will have a devastating adverse effect on the lives of people. He also referred to Intellectuals Forum vs. State of Andhra Pradesh, (2006) 3 S.C.C. 549 in support of his submissions. https://hcservices.ecourts.gov.in/hcservices/ 5. We may now look into the provisions of the Act. The Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007 is extracted hereunder :- " ACT No.8 of 2007 An Act to provide measures for checking the encroachment, eviction of encroachment in tanks which are under the control and management of Public Works Department, protection of such tanks and for matters incidental thereto. Be it enacted by the Legislative Assembly of the State of Tamil Nadu in the Fifty-eighth Year of the Republic of India as follows – 1. (1) This Act may be called the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007. (2) It extends to the whole of the State of Tamil Nadu. (3) It shall come into force on such date as the Government may, by notification, appoint. 2. In this Act, unless the context otherwise requires, - (a) 'ayacut area' means area irrigated under any irrigation system within its commandability; (b) 'field channel' means a channel existing or to be constructed to receive and distribute water for irrigation; (c) 'field drainage' means a water course which discharges waste or surplus water from the land; (d) 'foreshore area' means the land above full tank level and upstream of the tank bund; (e) 'full tank level' means the level of water in the tank when the water is stored up to the crest of the surplus weir; (f) 'Government' means the State Government; (g) 'land' includes benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth; (h) 'prescribed' means prescribed by rules; (i) 'supply channel' means a channel, which receives water from a water source and supply to the lower down tank; (j) 'surplus course' means a channel which conveys the surplus spilling from the tank to the next tank downstream or river nearby; (k) 'surplus weir' means a device to lead away the surplus water not required to be stored in the tank safely to the river lower down or tank; (l) 'tank' means a storage structure built in for harnessing water for use and includes supply channel and its cross masonries, tank sluice, surplus weir, surplus course and its cross masonries; field channel and its cross masonries besides the drains and tank poramboke lands which are under the control and management of Public Works Department; https://hcservices.ecourts.gov.in/hcservices/ (m) 'tank bund' means a small fixed earth dam; (n) 'tank sluice' means a vent way provided for the purpose of supplying water from the tank; (o) 'water spread area' means an area covered by water spread at full tank level. 3. The Government may direct that a survey be made, with reference to the records available with the Revenue Department, of tanks in every district for the purpose of determining their limits in respect of area and that proper charts and registers be prepared setting forth the channel and all boundaries and marks and all other matters necessary for the purpose of identifying such limits. 4. (1) The Government or any other officer authorized by it may, by order, appoint any officer not below the rank of Taluk Surveyor as Survey Officer for surveying the tanks within such local limits as may be specified in such order. (2) The Survey Officer shall carry out the survey of tanks in such manner as they be prescribed. (3) The Survey Officer shall be assisted by such officers of the Public Works Department having control over such tanks. 5. The Survey Officer and officers assisting the Survey Officer shall have power to enter upon any land and to do all acts necessary for the survey of tanks. 6. (1) The Survey Officer shall after the completion of the survey of tanks, prepare a chart and a register pointing out the boundaries of the tanks and such other informations necessary for the purpose of identifying the limits of tank. (2) The chart and the register prepared under sub- section (1) shall be handed over to an Officer of the Public Works Department, having control over such tanks, as may be specified by the Government. (3) The officer referred to in sub-section (2), shall within one month from the date of handing over of the charge and register, publish a notice in such manner as may be prescribed pointing out the boundaries of the tank. 7. (1) If the officer specified in sub-section (2) of Section 6 is of opinion that any person has encroached upon any land within the boundaries of the tank and that the encroacher should be evicted, the officer shall issue a notice in the manner as may be prescribed, calling upon the person concerned to remove the encroachment before a date specified in the notice. https://hcservices.ecourts.gov.in/hcservices/ (2) Where, within the period specified in the notice under sub-section (1), the encroacher has not removed the encroachment and has not vacated the land within the boundaries of the tank, the officer referred to in sub-section (2) of section 6 shall remove the encroachment and take possession of the land within the boundaries of the tank encroached upon, by taking such police assistance as may be necessary. Any police officer whose help is required for this purpose shall render necessary help to that officer. (3) Any crop or other product raised on the land within the boundaries of the tank shall be liable to forfeiture and any building or other construction erected or anything deposited thereon shall also, if not removed by the encroacher after a notice under sub-section (1), be liable to forfeiture. 8. Whoever, – (a) Enters the land in the water spread and foreshore areas of the tank without any lawful authority, (b) practices crop cultivation without any lawful authority, (c) raises plantation crops without any lawful authority, (d) damages the tank bund, tank sluices, surplus weirs and other built in structures, (e) obstructs the officers in carrying out their work under this Act, (f) interferes with the flow in the supply channels feeding the tanks and encroachers upon adjoining canal poramboke lands, (g) interferes with the flow in the field channels taking off from tank sluices to feed the ayacut area, (h) damages distribution and control structures located in the field channels, (i) damages and obstructs the flows in the field drainage systems, (j) lifts water from the tank through mechanical and electrical devices for cultivation, without lawful authority, shall on conviction, be punished with imprisonment for a term which may extend to three months or with fine of rupees five thousand or with both. 9. No suit, prosecution or other legal proceedings shall lie against any person for anything which is in good faith done or intended to be done in pursuance of this Act or a rule or order made thereunder. 10. If any difficulty arises in giving effect to the provisions of the Act, the Government may by order published in the Tamil Nadu Government Gazette, make such provisions, not https://hcservices.ecourts.gov.in/hcservices/ inconsistent with the provisions of this Act, as appear to them to be necessary or expedient for removing the difficulties. Provided that no order shall be made after the expiry of a period of two years from the date of commencement of this Act. 11. The provisions of this Act shall be in addition to and not in derogation of any other law for the time being in force. 12. The Government may, in the public interest, alienate any part of the tank poramboke land which is under the control of Public Works Department without interfering with storage capacity and water quality. 13. (1) The Government may make rules for carrying out all or any of the purposes of this Act. (2) (a) All rules made under this Act shall be published in the Tamil Nadu Government Gazette and unless they are expressed to come into force on a particular day, shall come into force on the day on which they are so published. (b) All notifications issued under this Act shall be published in the Tamil Nadu Government Gazette and unless they are expressed to come into force on a particular day, shall come into force on the day on which they are so published. (3) Every rull or order made or notification issued under this Act shall as soon as possible, after it is made or issued, be placed on the Table of the Legislative Assembly, and if, before the expiry of the session in which it is so placed or in the next session, the Legislative Assembly makes any modification in any such rule, order or notification or the Legislative Assembly decides that the rule, order or notification should not be made or issued, the rule, order or notification shall thereafter have effect only in such modified form or be of no effect, as the case may be, so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule, order or notification." The Tamil Nadu Protection of Tanks and Eviction of Encroachment Rules, 2007 are extracted hereunder :- "In exercise of the powers conferred by sub-section (1) of Section 13 of the Tamil Nadu Protection of Tanks and Eviction of Ecnroachment Act, 2007 (Tamil Nadu Act 8 of 2007), the Governor of Tamil Nadu hereby makes the following Rules – 2. These Rules shall come into force with effect on and from the 1st day of October, 2007. https://hcservices.ecourts.gov.in/hcservices/ " THE RULES 1. Short title.– These Rules may be called the Tamil Nadu Protection of Tanks and Eviction of Encroachment Rules, 2007. 2. Definitions.– (1) In these Rules, unless the context otherwise requires,– (a) 'Act' means the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007 (Tamil Nadu Act 8 of 2007). (b) 'Chart' means field measurement book sketches covering each of the survey numbers traversed in a tank and map available with the Revenue Department showing the boundaries of a tank clearly marked in distinct colours and includes a separate map showing encroachments, if any; (c) 'form' means form appended to these Rules; (d) 'officer' means the Assistant Engineer or Junior Engineer or Overseer of the Water Resources Organisation of Public Works Department, incharge of the tanks lying in his jurisdiction for the purpose of enforcing the provisions of the Act and the Rules; (e) 'register' means a document containing information regarding the survey number, area encroached, etc. contained in Form I; (f) 'survey officer' means the firka surveyor or town surveyor or any officer not below the rank of the survey officer of the Survey and Land Records Department; (g) tank poramboke' means the land liable to submersion when a tank is full either at full tank level or maximum water level, as the case may be, and includes all the land components form part and parcel of the tank with its appurtenances. (2) The words used but not defined in these Rules shall have the same meaning respectively, assigned to them in the Act. 3. Survey of tanks.– Survey shall be carried out by traversing along the tank and the boundaries be demarcated, based on the original records of the tanks available with the Revenue Department in every taluk and district and simultaneously identifying the areas encroached upon and areas alienated by the Government, in public interest, within the demarcated boundaries, and proper charts and registers be prepared setting forh these details. 4. Appointment of Survey Officer.– (1) The Assistant Director of Survey and Land Records Department is authorised to appoint, by order the survey officer, who is not below the rank of taluk surveyor, for surveying the tanks within such local limits as may be specified in such order. (2) The survey officer appointed under sub-rule (1) shall carry out the survey work in the manner provided in Rule 3. https://hcservices.ecourts.gov.in/hcservices/ (3) The officer of the Public Works Department having control over the tank shall co-ordinate and extend all assistance required by the survey oficer for the conduct of such survey and demarcation of the limits of all the tanks. (4) As and when the boundary lines are demarcated by the survey officer, the officer referred to in sub-rule (3), shall arrange to fix the boundary stones on a permanent basis at desired locations and carry out appropriate measures to maintain the boundary lines without any external interference. 5. Report of Survey Officer.– (1) The survey officer, after the completion of the survey of tanks shall prepare charts and registers in the manner provided in Rule 3. (2) The charts and registers prepared under sub-rule (1) and duly authorised by the Tahsildar concerned shall be handed over to the officer referred to in sub-rule (3) of Rule 4, having control over such tank. (3) The officer shall, within one month from the date of handing over the chart and register, publish a notice in Form-II together with the map of the tank in the notice boards of the officers of the Village Administrative Officer, Village Panchayat Office and Water Resources Organisation concerned. 6. Eviction of Encroachment.– (1) If any person has encroached upon any land of the tank, the officer referred to in sub-rule (3) of Rule 4 shall prepare a notice in Form III and call upon the person concerned to remove the encroachment. (2) Notwithstanding anything contained in sub-rule (1), such notice shall be served by delivering a copy either to the encroacher or to a member of his family at his usual place of abode, or to his authorised agent, or by affixing a copy thereof in some conspicuous part of his last known residence or in any part of the area encroached upon or in any of the offices of the Village Chavadi, Village Panchayat, District Collector, Revenue Divisional Officer, Tahsildar, Village Administrative Officer, Panchayat Unions and in the Section, Sub-Division and Divisions concerned of the Water Resources Organisation of the Public Works Department as the officer deems fit and proper. (3) If the encroacher has not removed the encroachment within the period specified in the notice referred to in sub- rule (1), the officer shall inform the area Station House Officer of Police Department, in writing to provide adequate Police personnel, as may be necessary and shall remove the encroachment or obstructions or any building or any crop or any product raised on the land or anything deposited and forfeit them and take possession of the land as specified in sub- sections (2) and (3) of Section 7 of the Act. (4) The officer shall also impose the cost of eviction against such person, by preferring a complaing against such person with the competent Judicial Magistrate for recovery. https://hcservices.ecourts.gov.in/hcservices/ 7. Offences and Penalties.– (1) If any person indulges in any of the activities prohibited in Section 8 of the Act, the officer shall on suo motu, prefer a complaint in writing against such person before a Metropolitan Magistrate or a Judicial Magistrate of first class, as the case may be, for punishment as specified in Section 8 of the Act and no Court shall take cognizance of any offence punishable under this Act except upon a complaint in writing made by the officer. (2) The officer shall also compound the cost of making good the loss and cost of eviction and impose against such person, simultaneously." 6. The communication sent by the Government to the District Collectors dated 10.10.2007 is extracted hereunder :- " Letter No.11634/W2/2007-10, Dated 10.10.2007 From Thiru S. Audiseshiah, IAS, Secretary to Government. To All the District Collectors (with 5 copies of Act and Rules) / All Superintendents of Police (one copy) Sir, Sub : The Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007 (Tamil Nadu Act 8 of 2007) and the Tamil Nadu Protection of Tanks and Eviction of Encroachment Rules, 2007 – Brought into force with effect from 1.20.2007 – Implementation of the Act – reg. Ref : G.O. Ms. No.320, PW (W2) Department, dated 28.9.2007 ------ The Government have enacted the 'Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007 (Tamil Nadu Act 8 of 2007)' with a view to provide measures for checking the encroachment, eviction of encroachments in tanks and protection of such tanks which are under the control and management of Public Works Department. The Government have also made the 'Tamil Nadu Protection of Tanks and Eviction of Encroachment Rules, 2007' to the said Act. The Act and Rules have been brought into force with effect from 1.10.2007 in the Government Order cited. 2. I am to send the copies of the said Act and Rules and to request you to implement the Act and Rules. The salient aspects https://hcservices.ecourts.gov.in/hcservices/ of the Act and Rules are outlined below: • The Act and Rules extend to the tanks in the State which are under the control and management of Public Works Department. • The Assistant Director of Survey and Land Records Department is authorized to appoint, by order, the firka surveyor or town surveryor as the Survey Officer. • The Survey Officer shall carry out the survey of tank based on the original records of Revenue Department and demarcate the boundaries and identify the encroachments wherever they are. • The Assistant Engineer or Junior Engineer or Overseer concerned of Water Resources Organisation of Public Works Department, in charge of the tank, who is the officer of Public Works Department as per the Act, shall arrange to fix the boundary stones on a permanent basis and maintain them. • The Survey Oficer shall hand over to the officer of Public Works Department concerned, the following, duly authenticated by the Tahsildar concerned. • Charts i.e. the field measurement book sketches related to the tank, map available with Revenue Department showing boundaries of tank and a separate map showing encroachments wherever they are; • Registers i.e. a document containing information on survey numbers, area encroached etc. as per Form I of the Rules. • The officer of Public Works Department concerned shall within one month, publish a notice in Form II of the rules together with the map of the tank in the notice boards of offices of Village Administrative Officer, Village Panchayat Office and Water Resources Organisation concerned. • The officer of Public Works Department concerned shall prepare a notice in Form III of the Rules and call upon the encroached person to remove encroachment within 21 dayus of date of receipt of notice. • If the encroached person has not removed the encroachment within 21 days, the officer of Public Works Department concerned shall remove the encroachment, by seeking the assistance of the Police personnel wherever necessary, by informing in writing to the area Station House Officer of Police Department, • The officer of Public Works Department concerned shall impose the cost of eviction against such person. • If any person indulges in encroachment of tank by practicing cultivation, plantation, damages the tank, interferes with the flow etc., the officer of Public Works Department concerned shall prefer a complaint https://hcservices.ecourts.gov.in/hcservices/ against such person, before a Metropolitan Magistrate or a Judicial Magistrate of first class. • Such person shall on conviction be punished with imprisonment for a term of three months or with fine of rupees five thousand or with both. 3. The District Collectors are requested to take immediately, the following measures for the cent percent effective implementation of the Act. 1.Create adequate awareness among the Public, especially at Village level about the provisions of the Act and Rules in the form of beating tom-tom, distribution of handbills, pasting of wall posters and also through mass media. The contents of the above means are attached for reference. The handbills and wall posters will be printed at Chennai by Public Works Department and will be distributed by the respective Executive Engineers in consultation with the District Collectors. 2.Issue suitable circular among the Tahsildars and Village Administrative Officers etc. instructing them to spare the field measurement book sketches and maps of tanks of the Survey officers and officers of Public Works Department, whenever they approach them. 3.Monitor the progress of eviction of encroachments and include this as one of the agenda items in the monthly review and send the status report to Government in Public Works Department every month, as in the enclosed format. 4.The District Superintendent of Police may be informed to instruct the officials under his control to provide adequate police personnel during eviction of encroachments in the tanks, whever the Officer of Public Works Department approaches them, as per the Act. " 7. The above are statutory provisions and executive instructions with regard to eviction of encroachments. In terms of the above, public notice regarding removal of encroachments was