IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06/07/2006
CORAM
THE HON'BLE MR. JUSTICE P. SATHASIVAM
AND
THE HON'BLE MR. JUSTICE V. DHANAPALAN
WRIT APPEAL No.769 of 2006
and
MP.No.3 of 2006
1. P. Kathirvel
2. K. Kanagaraj
3. K. Dhandapani
4. P. Periyasamy
5. K. Ponnusamy
6. K. Kandasamy .. Appellants
-Vs-
1. Thangavel
2. The Special Commissioner and
Commissioner of land Administration
Chepauk, Chennai 600 005.
3. The District Collector
Erode District, Erode 11. .. Respondents
Writ Appeals filed under Clause 15 of the Letters of Patent
against the order of the learned Judge Mr. Justice F.M. Ibrahim Kalifulla,
dated 10.04.2006 made in W.P.No.9902 of 2006.
!For appellants : Mr. K.M. Vijayan
Sr. Counsel
for Mr. N. Manokaran
^For respondents: Mr.D. Krishnakumar for R 1
Mr. K. Elango
Spl. Govt., Pleader for R 2 and R 3
:JUDGMENT
(Judgment of the Court was delivered by P. SATHASIVAM,J.)
By consent of all the parties, the main writ appeal itself is taken up
for final disposal.
2. Aggrieved by the order of the learned single Judge dated 10.04.20
06 made in W.P.No.9902 of 2006, the appellants / third parties, after
obtaining leave, filed the above writ appeal.
3. Heard Mr. K.M. Vijayan, learned senior counsel for the
appellants, Mr. D. Krishnakumar, learned counsel for the first respondent
and Mr. K. Elango, learned Special Government Pleader for respondents 2 and
3.
4. According to the learned senior counsel, the appellants are
aggrieved by the direction of the learned single Judge to the District
Collector, Erode, to enforce the order dated 21.10.2005 of the Special
Commissioner and Commissioner of Land Administration, Chepauk, Chennai 600
005, since the said order was passed by the authority behind their back,
without giving an opportunity to them. In other words, according to the
learned senior counsel, the learned single Judge ought not to have directed
the District Collector, Erode to implement the said direction, which was
passed without notice to the appellants.
4. On the other hand, Mr. D. Krishnakumar, learned counsel
appearing for the first respondent and Mr. K. Elango, learned Special
Government Pleader appearing for respondents 2 and 3 contended that since the
appellants are encroachers who are taking water from the canal using diesel
engines, the order of the Special Commissioner and Commissioner of Land
Administration and the direction of the learned single Judge are perfectly in
order and there is no ground for interference.
5. In order to understand the matter in issue, it is useful to refer
the order of the Special Commissioner and Commissioner of Land Administration,
Chennai 600 005 made in Revision Petition dated 25.04.200 4. The said
revision petition was filed by one K.Ramasamy and Rasappan of Anaipalayam in
Velampoondi Village of Dharapuram Taluk against the order passed by the
District Revenue Officer in his proceedings dated 20.04.2004, wherein the
District Revenue Officer, Erode held that the pathway in Survey No.56/1 is a
private one and thereby ordered to remove the pathway as found in the FMB of
Survey No.56/1 and set aside the order of the Revenue Divisional Officer,
Dharapuam dated 27.8.1996. There is no need to go into the entire discussion
made by the Special Commissioner and Commissioner of Land Administration and
it is enough to refer the penultimate paragraph of the order wherein the
Commissioner of Land Administration, after finding that there is no valid
reason to interfere with the order of the District Revenue Officer in his
proceedings dated 20.04.2004, rejected the revision as devoid of merits.
However, the grievance of the appellants is with regard to the directions
issued by the Commissioner of Land Administration in the last paragraph of the
order, which reads as under:
“During the course of hearing, it was deposed by the Village Administrative
officer, Velampoondi that in S.No.55 there are some illegal encroachments by
way of pipelines in the banks of Amaravathi river and illicit drawal of water
is being made through oil engines/electric motors and a list of such offenders
have been furnished by him. The Collector of Erode, is therefore, requested
to evict these encroachments and their permits should be cancelled forthwith
and the water course poramboke restored to its original status immediately. ”
6. Since the above said direction in the order dated 21.10.2005 has
not been implemented, the first respondent herein, viz., Thangavel, filed
W.P.No.9902 of 2006, praying to issue a writ of mandamus directing the second
respondent District Collector, Erode to implement the direction of the
Commissioner of Land Administration in his order dated 21.10.2005, by removing
the encroachments on the banks of Amaravathi river and water course poramboke
lands in S.No.55 of Velampoondi Village and restoring the water course to its
original status.
7. When the above writ petition came up for admission on 10.04.2006 ,
the learned single Judge, directed the second respondent therein / District
Collector, Erode to enforce the direction of the first respondent within a
period of six weeks from the date of receipt of copy of the order. A perusal
of the direction of the Commissioner of Land Administration dated 21.10.2005
as well as the order of the learned single Judge dated 10.04.2006, show that
the appellants / third parties, who are alleged to have encroached and laid
pipelines on the banks of Amaravathi river and drew water illicitly, were not
heard. No doubt, there is no need to show concession or indulgence to the
encroachers; however, in view of the subject matter of the revision before the
Commissioner of Land Administration and of the assertion of the appellants
that they are not encroachers of Survey No.55 and they are patta holders in
respect of the said land and they are drawing water for the past 35 years, we
are of the view that the appellants are entitled to notice of hearing before
any order is passed against them. It is made clear that we are not deciding
the claim of any of the parties, nor accepting the stand of the appellants
that they are patta holders drawing water legally from the river. It is
further made clear that it is for the authority concerned to decide all the
issues. Accordingly, modifying the order of the learned single Judge dated 1
0.04.2006, we issue the following direction:
“The Revenue Divisional Officer, Dharapuram is directed to conduct fresh
enquiry with reference to the directions issued in the last paragraph of the
order of the special Commissioner and Commissioner of Land Administration in
R.Dis.(T2) 20229/04 dated 21.10.2005, after affording opportunity to the
appellants, first respondent and all other persons connected with the same and
pass appropriate orders in accordance with law within a period of three months
from the date of receipt of copy of this order. It is made clear that
depending on the outcome of the fresh enquiry, the revenue officials are free
to take appropriate action.”
The writ appeal is ordered accordingly. No costs. Consequently, connected MP., is closed. kh To 1. The Special Commissioner and Commissioner of land Administration Chepauk, Chennai 600 005. 2. The District Collector Erode District, Erode 11.
