Madras High Court
K.Gous Basha vs The Commissioner on 2 August, 2024
Author: M.Sundar
Bench: M.Sundar
2024:MHC:3014
W.P.No.22194 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.08.2024
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI
W.P.No.22194 of 2024
and
W.M.P.Nos.24162 of 2024
in
W.P.No.22194 of 2024
K.Gous Basha
S/o.Khalil Basha .. Petitioner
Vs.
1. The Commissioner
Maraimalainagar Municipality
Maraimalainagar
Chengalpattu District.
2. D.Maran
S/o.Devaraj .. Respondents
Writ petition filed under Article 226 of the Constitution of India
praying to issue a writ of Certiorari, calling for the records relating to the
order passed by the first respondent in Na.Ka.No.2383/2024/F1-2 dated
16.07.2024 and quash the same.
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W.P.No.22194 of 2024
For Petitioner : Mr.G.Magesh Kumar
For Respondents : Mr.T.K.Saravanan
Government Advocate
for R1
*****
ORDER
(Order of the Court was made by M.Sundar, J.)
Captioned main 'Writ Petition' {hereinafter 'WP' for the sake of
brevity} has been filed assailing a 'notice dated 16.07.2024 bearing
reference Na.Ka.No.2383/2024/F1-2 issued by R1' {hereinafter
'impugned notice' for the sake of brevity}.
2. Mr.G.Magesh Kumar, learned counsel on record for writ
petitioner, who is before us drew our attention to the aforementioned
impugned notice and a scanned reproduction of the same as placed before
us is as follows:
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https://www.mhc.tn.gov.in/judis
3. Notwithstanding very many grounds and myriad averments
in the support writ affidavit, learned counsel for writ petitioner predicated
his campaign against the impugned notice on one point and that one point
is, the impugned notice directly calls upon the noticee (writ petitioner) to
remove what according to R1 is an encroachment without show causing
the writ petitioner.
4. Issue notice to official respondent i.e., R1.
5. Mr.T.K.Saravanan, learned Government Advocate accepts
notice for R1.
6. Learned State counsel submits, on instructions, that the
impugned notice has been issued under Section 128 of 'Tamil Nadu Urban
Local Bodies Act, 1998 (Tamil Nadu Act 9 of 1999)' {hereinafter
'TNULB Act' for the sake of brevity}.
7. Learned counsel for writ petitioner submits that the
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impugned notice was affixed in the premises which according to R1 is
offending construction on 22.07.2024 and writ petitioner noticee has sent
a response dated 27.07.2024 through his counsel. Section 128 of TNULB
Act reads as follows:
'128. Power to remove encroachment from public
place. - (1) The Commissioner may, -
(a) remove without any notice any movable
temporary structure, enclosure, stall, booth, any article
whatsoever hawked, exposed or displayed for sale or any other
thing whatsoever by way of encroaching street or public place
or the [land belonging to or vested with the municipality] with
the municipal limit;
(b) remove any immovable structure whether
permanent or of temporary nature encroaching the street or
public place or the [land belonging to municipality or vested
with the municipality] within the municipal limit, after issuing a
show cause notice for such removal, returnable within a period
of seven days from the date of receipt thereof:
Provided that the Commissioner shall consider any
representation received within the time limit, before passing
final orders.
(2) Whoever makes any encroachment in any land or
space (not being private property) in any public street or any
[land belonging to or vested with the municipality] within the
municipal limit, shall, on conviction, be punished with
imprisonment which shall not be less than one year but which
may extend to three years and with fine which may extend to
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[fifty thousand rupees]:
Provided that the Court may, for any adequate or
special reasons to be mentioned in the judgment, impose a
sentence of imprisonment for a term of less than one year.'
8. There is no disputation that the alleged offending
construction is an 'immovable structure' and therefore, Section 128(1)(b)
of TNULB Act together with proviso thereat comes into play.
9. In the light of the narrative thus far, we find that the
captioned main WP stands vastly descoped. In other words, legal
perimeter within which the captioned main WP should now perambulate
has dwindled vastly. Therefore, with the consent of learned counsel on
both sides, main WP was taken up. We are acutely conscious that R2
(private respondent) is not before us and therefore we will be putting in a
safety valve as regards R2, who is not before us.
10. Reverting to the lone point on which the campaign against
the impugned notice is predicated, as the writ petitioner has responded to
the impugned notice, we deem it appropriate to say that 'impugned notice'
shall be treated as 'Show Cause Notice' {'SCN'} and response of writ
petitioner dated 27.07.2024 shall be treated as cause shown. This satisfies
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the requirement under Section 128(1)(b) of TNULB Act. Likewise, R2
shall be favoured with a copy of impugned notice forthwith and if R2
sends any representation within the specified seven days window i.e.,
within seven days, the same shall be considered by R1 before making
final orders which is in tune with proviso to Section 128(1)(b) of TNULB
Act. In this regard, all questions are left open and all rights and
contentions of R2 are preserved for sending a representation. This aspect
of the order covers the requirement under Section 128(1)(b) of TNULB
Act and also puts in a safety valve qua R2 (private respondent), who is
not before us. To be noted, there is an allusion about the safety valve
supra.
11. In the light of the narrative thus far, as impugned notice is
now treated as SCN and SCN has been responded to i.e., cause shown by
writ petitioner vide 27.07.2024 communication through his counsel, R1
shall proceed in accordance with law and on the merits of the matter i.e.,
on the basis of the merits of the cause shown with a rider that
representation, if any, from R2 shall be considered vide proviso to Section
128(1)(b) of TNULB Act and proceedings shall be concluded as
expeditiously as the official business of R1 would permit. We make it
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clear that when we say that the proceedings shall be concluded, it
includes either dropping proceedings accepting cause shown or carrying
the matter to its logical end of removal of encroachment and as we have
not expressed any view or opinion on the merits of the matter, it would be
solely on the merits of the writ petitioner's response to SCN and in
accordance with law. For this purpose, all rights and contentions of both
sides, (including R2 as already alluded to supra) are left open and all
questions are left open. All Rights are preserved in this regard.
Captioned WP disposed of in the aforementioned manner with
observations set out supra and with preservation of rights in the
aforementioned manner. Consequently, captioned Writ Miscellaneous
Petition is disposed of as closed. There shall be no order as to costs.
(M.S.J.) (K.G.T.J.)
02.08.2024
(2/2)
Index:Yes
Neutral Citation: Yes
Speaking order
mk
To
The Commissioner
Maraimalainagar Municipality
Maraimalainagar, Chengalpattu District.
M.SUNDAR.J.,
and
K.GOVINDARAJAN THILAKAVADI, J.,
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mk
02.08.2024
(2/2)
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