Madras High Court
V.Senthamil Selvi vs The Commissioner on 4 July, 2023
W.P.(MD)No.16048 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 04.07.2023
CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
AND
THE HONOURABLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
W.P.(MD)No.16048 of 2023
V.Senthamil Selvi ... Petitioner
Vs.
1.The Commissioner,
Madurai Corporation,
Madurai.
2.R.Shanthi Sri ...Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India, to issue a
Writ of Mandamus, directing the 1st respondent to remove the encroachment made
in the public lane comprised in Madurai Corporation Survey Ward 2, East
Madurai, Block No.22, T.S.No.95, 97 and T.S.No.5 made by the 2 nd respondent
considering the representation dated 25.05.2023.
For Petitioner : Mr.S.Venkatesh
For R1 : Mr.K.K.Kannan,
Standing Counsel
1/7
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W.P.(MD)No.16048 of 2023
ORDER
(Order of the Court was made by S.VAIDYANATHAN, J.)
The petitioner has come forward with the prayer to direct the 1st
respondent to remove the encroachment made by the 2nd respondent in Madurai
Corporation Survey Ward 2, East Madurai, Block No.22, T.S.Nos.95, 97 and
T.S.No.5 by considering the representation of the petitioner dated 25.05.2023.
2.Mr.K.K.Kannan, learned Standing Counsel takes notice on behalf of
the 1st respondent. Since no adverse order is going to be passed as against the 2nd
respondent, notice to her is dispense with.
3.By consent of both parties, this Writ Petition is taken up for final
disposal at the stage of admission itself.
4.The grievance of the petitioner is that her representation dated
25.05.2023 seeking removal of the encroachment in the land in question made by
the 2nd respondent made before the 1st respondent, has not been considered so far.
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W.P.(MD)No.16048 of 2023
5.Mr.K.K.Kannan, learned Standing Counsel for the 1st respondent
submitted that necessary survey would be conducted in the land in question, after
issuing notice to the petitioner as well as any other interested parties.
6.We expect a survey to be conducted apart from taking photographs and
video in the presence of parties. If required, police assistance can also be taken.
If encroachment is found, no indulgence shall be shown to the encroachers. The
dictum of the Hon'ble Apex Court as followed by this Court in W.P(MD)No.
15636 of 2023, dated 03.07.2023, needs to be adhered to. Relevant portion of the
said order reads as follows:
“”6. The Authorities concerned can also utilize the
advanced technology of drone survey in the presence of the
respective parties in order to ascertain the exact portion of
encroachment. It is needless to mention that if any encroachment
is found to be made, the electricity connection with respect to the
encroachment shall have to be disconnected and the eighth
respondent shall issue suitable direction to the concerned
Assistant Engineer to that effect, in the light of the Judgment of
the Division Bench in the case of "P.Selvarajan Vs. The
Commissioner of Municipal Administration, Chennai and
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W.P.(MD)No.16048 of 2023
others" (W.P.No. 21639 of 2017), decided on 13.02.2018,
wherein the Division Bench observed as follows, in consonance
with the order of the Supreme Court dated 05.01.2018 passed in
a Petition for Special Leave to Appeal (C) No.33863 of 2017:
“3. Learned counsel appearing for the fourth
respondent submitted that the fourth respondent has
made an application for regularisation and that
during the pendency of the proceedings, this Court, by
order dated 11.09.2017, directed disconnection of
electricity in respect of basement, second and third
floors of the fourth respondent's premises, against
which, the matter was taken up to the Supreme Court.
The Supreme Court, in Petition for Special Leave to
Appeal (C).No.26509 of 2017, by order dated
13.10.2017, did not interfere with the said order of
this Court dated 11.09.2017, and permitted the fourth
respondent herein to move the High Court. During
the pendency of this Writ Petition, the fourth
respondent herein has filed W.M.P.No.30495 of 2017
seeking direction to the TANGEDCO to restore the
electricity connection to the building of the fourth
respondent. This Court, by order dated 07.11.2017,
rejected the restoration of electricity supply.
Thereafter, once again the matter was taken up to
the Supreme Court by the fourth respondent, and the
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W.P.(MD)No.16048 of 2023
Supreme Court, by order dated 05.01.2018 in
Petition for Special Leave to Appeal (C) No.33863 of
2017, has dismissed the Special Leave Petition, by
observing as follows:
"Heard learned counsel for the petitioner and perused
the impugned order dated 07.11.2017 passed in
WMP.No.30495/2017 passed by the Madras High
Court.
We are not inclined to interfere in the impugned
order and accordingly, the Special Leave Petition is
dismissed.
However, we direct the authority concerned before
whom the application for regularisation under the
DTCP Building Regularisation Scheme 2017 is
pending to decide the matter in accordance with law
within two months.
Pending application stands disposed of."
7. It is made clear that if there is any encroachment made, no
indulgence shall be shown. The officials shall follow the dictums of
this Court (S.K.Kaul,C.J., and R.Mahadevan,J.) in Contempt Petition
No.1769 of 2015 and Contempt Petition No.2166 of 2015 (Suo motu)
and in W.P. No. 28143 of 2021 dated 27.01.2022 (S.Vaidyanathan,J
and D. Bharatha Chakravarthy,J.) in its letter and spirit. If the
officials fail to remove the encroachment, disciplinary action shall be
initiated and punishment for major misconduct shall be entered in the
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W.P.(MD)No.16048 of 2023
service records that will deprive them of further chances of
promotion.”
7.We make it clear that we have not rendered any finding on the merits
of the plea made by the petitioner and it is for the authority concerned to consider
the petitioner's case and take a decision on merits and in accordance with law.
8.With the above direction, this Writ Petition stands disposed of. No
costs.
(S.V.N., J.) & (D.B.C., J.)
04.07.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
Yuva
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W.P.(MD)No.16048 of 2023
S.VAIDYANATHAN, J.
AND
D.BHARATHA CHAKRAVARTHY, J.
Yuva
W.P.(MD)No.16048 of 2023
04.07.2023
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