IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.07.2008
CORAM
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU
Writ Petition No.8000 of 2008 and
M.P.No.1 of 2008
S.KRISHNASAMY GOUNDER PETITIONER
Vs
1 THE TAHSILDAR
KANGEYAM TALUKK, ERODE DT.
2 THE ASSISTANT EXECUTIVE
ENGINEER TAMILNADU ELECTRICITY BOARD
METTUPALAYAM VELLAKOIL VIA 638 111
ERODE DISTRICT.
3 R.BALUMANI RESPONDENTS
Prayer:-Writ petition filed under Article 226 of the Constitution of India for a writ of certiorarified mandamus calling for the records of the 1st respondent herein culminating in and by his proceeding na.Ka.No.4517/2007/a1 dt 26.10.2007 and to quash the same and consequently order passed by the 2nd respondent in K. No.EB/ENP/MP/Court case No. 304/2008 dt 3.3.2008 and consequently directing the respondents 1 and 2 to restore the service connection in S.C.No.227 to the petitioners well situated in R.S. No.674/1C1 Mettupalayam village Kangeyam taluk Erode district.
For Petitioner : Mr.S.Dhanasekaran
For R.1 : Mr.V.Arun, AGP
For R.2 : Mr.S.N.Kirubanandam
For R.3 : Mr.N.Manokaram
O R D E R
Though the miscellaneous petition is listed today, by consent of both sides, the writ petition itself is taken up for final disposal.
2.The petitioner claims that he is the owner of a land measuring of 2.81 acres comprised in Old Survey No.734/1C and new Survey No.734/1C1 at Nadupalayam Village, Kangeyam Taluk, Erode District. The petitioner further states that he put up a small well on the said property for the purpose of irrigation and also got electricity service connection for the same in the year 1992. He has also filed a civil suit in O.S.No.283 of 2005 on the file of the learned District Munsif, Kangeyam for bare injunction against the Government officials. The said civil suit is still pending. The learned District Munsif has not granted any interim injunction. In the mean while, the third respondent filed W.P.No.1378 of 2007 before this Court for a direction to the respondents therein to take action against the sixth respondent therein viz., the petitioner herein on the basis of the enquiry report dated 17.07.2006 filed before the third respondent therein for removal of illegal encroachment on the LBP canal area, digging a well in R.S.No.634/1B, getting electricity service connection in S.C.No.227 in violation of the electricity laws and committing theft of canal water. Though the petitioner herein was added as sixth respondent in the said writ petition, this Court at the admission stage itself disposed of the writ petition with the following direction:-
“The third respondent shall consider the representation of the petitioner dated 28.09.2006 in the light of the report submitted by the Revenue Inspector in his proceedings in U.Mu.No.609/2006 , dated 17.07.2006 on merits and in accordance with law, after giving an opportunity of hearing to the petitioner and the sixth respondent herein and pass appropriate orders within a period of four(4) weeks from the date of receipt of a copy of this order or on its production. It is made clear that no opinion is expressed by this Court on the merits of the case.”
3.Thereafter, the Tahsildar, Kangeyam, the first respondent herein, by her proceedings in Na.Ka.No.4517/2007/A1 dated 26.09.2007, directed the Assistant Engineer, Tamil Nadu Electricity Board, Kangeyam, to disconnect the electricity service connection given to the petitioners well. Based on the said direction issued by the Tahsildar, the second respondent herein disconnected the electricity service connection to the petitioners well. In those circumstances, the petitioner has come forward with the present writ petition seeking to quash the above proceeding of the first respondent and the consequential order of the second respondent and for a further direction to restore the electricity service connection in S.C.No.227 to his well.
4.Heard the learned counsel for the petitioner, the learned Additional Government Pleader appearing for first respondent, the learned standing counsel for the second respondent TNEB and the learned counsel for the third respondent and also perused the records.
5.A perusal of the order of this Court passed in the earlier writ petition would go to show that this Court only directed the Tahsildar to hold appropriate enquiry and to pass orders to evict the encroachment. It does not mean that even without holding any enquiry, the Tahsildar could straight away throw out the petitioner from the possession. If the petitioner is an encroacher, it is for the Tahsildar to hold necessary enquiry and to afford sufficient opportunity to the petitioner and then to pass order directing him to vacate the encroached area. But the impugned order of the Tahsildar directing the TNEB officials to disconnect the service connection does not contain any such detail.
6.The learned Additional Government Pleader appearing for the first respondent has produced a file before this Court. The Tahsildar concerned is also present in the Court. After going through the file, this Court found that there was no enquiry held and no opportunity given to the petitioner as required under Land Encroachment Act. Without doing so, the Tahsidlar has straight away directed the TNEB officials to disconnect the service connection of the petitioners well. The learned Additional Government Pleader would fairly concede that the Tahsildar did not pass any order of eviction as required under the Land Encroachment Act. It is certainly arbitrary and illegal on the part of the Tahsildar to direct the TNEB officials to disconnect the service connection to the petitioners well. After holding enquiry; after finding that the petitioner is an encroacher; after passing an order of directing the petitioner to vacate the property within a particular time; if the petitioner fails to obey the order, of course, it may be within the competence of the Tahsildar to take steps to disconnect the service connection and to remove the encroachment. Without following the said proceedings, the Tahsildar has passed the impugned order, which in my considered opinion, is liable to be quashed and the consequential order of the second respondent is also liable to be quashed.
7.In the result, the writ petition is allowed and the impugned order of the first respondent in na.Ka.No.4517/2007/a1 dt 26.10.2007 and the consequential order of the second respondent in K.No.EB/ENP/MP/Court case No.304/2008 dt 3.3.2008 are quashed. The second respondent is directed to restore the service connection in S.C.No.227 to the petitioners well forthwith. The Tahsildar is directed to issue proper notice to the petitioner as required under the Land Encroachment Act, hold an enquiry and then pass appropriate orders as expeditiously as possible in accordance with law. No costs. Consequently, connected miscellaneous petition is closed.
8.At this juncture, the learned Additional Government Pleader would submit that though the Tahsildar issued notice to the petitioner to appear for enquiry before passing the impugned order, he did not appear. But, in the affidavit filed in support of this writ petition, he has stated that no such notice was issued to him at all. The petitioner who is present in the Court apologised for having made such false statement in the affidavit. The said unconditional apology is accepted and the same is recorded.
jbm
To
1 THE TAHSILDAR
KANGEYAM TALUKK, ERODE DT.
2 THE ASSISTANT EXECUTIVE
ENGINEER TAMILNADU ELECTRICITY BOARD
METTUPALAYAM VELLAKOIL VIA 638 111
ERODE DISTRICT