Madras High Court
S.Chithra vs The Executive Officer on 14 August, 2024
Author: R.Subramanian
Bench: R.Subramanian
W.P.(MD)No.19566 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 14.08.2024
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
and
THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI
W.P.(MD)No.19566 of 2024
and
W.M.P.(MD)No.16593 of 2024
1.S.Chithra
2.Sanjeevi, S/o. Late. Sakthivel ... Petitioners
-vs-
The Executive Officer,
Andipatti Town Panchayat,
Theni District. ... Respondent
PRAYER: Writ Petition filed under Article 226 of the Constitution of India, to
issue a Writ of Certiorari, calling for the records relates to the impugned eviction
notice in Na.Ka.No.812/2024 dated 09.08.2024, issued by the respondent and
quash the same as it is illegal.
For Petitioners : Mr.R.Suriya Narayanan
For Respondent : Mr.S.P.Maharajan
Special Government Pleader
____________
Page 1 of 6
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.19566 of 2024
ORDER
[Order of the Court was made by R.SUBRAMANIAN, J.]
Challenge in the Writ Petition is to the order passed supposedly under
Section 128(1) and (2) of the Tamil Nadu Urban Local Bodies Act, 1998
[hereinafter referred to as ''the Act''].
2. A Writ Petition was filed in this Court in W.P.(MD)No.10210 of 2024,
seeking Mandamus, directing the respondents 1 and 2 therein to take appropriate
action to remove the illegal encroachment made by one O.Raja [the third
respondent therein] at Aundipatti Bus Stand. This Court passed the following
direction on 26.04.2024:-
''7.This Court is inclined to dispose of the present Writ Petition
with the following order:
''There shall be a direction to the second respondent
to consider the said representation of the petitioner dated
22.03.2024 and decide the same on merits and in
accordance with law, of course, after giving an opportunity
of hearing to both the petitioner as well as the third
respondent, within a period of four [4] weeks from the date
of receipt of a copy of this order.'' ''
____________
https://www.mhc.tn.gov.in/judis
3. Complaining that the directions issued were not complied with, a
Contempt Petition was filed in Cont.P.(MD)No.1619 of 2024 and the same is
pending. It is, at this stage, the impugned order has been passed.
4. Section 128 of the Act prescribes the procedure for eviction of
encroachment and the same 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:
____________
https://www.mhc.tn.gov.in/judis
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 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 less than one year.''
5. The procedure prescribed under Section 128(1) of the Act is mandatory
and it has to be followed in letter and spirit. Though it is stated that because the
Contempt Petition is pending, the respondent has issued the order impugned in
the Writ Petition, we are unable to accept such explanation. The Division Bench
of this Court had granted four weeks time for the respondent to take action and no
action was taken till 09.08.2024 from 26.04.2024. Only after the Contempt
Petition was listed and the explanation was sought for from the Executive Officer
as to why the order has not been complied with, the order impugned in the Writ
Petition has been passed.
____________
https://www.mhc.tn.gov.in/judis
6. Evidently, the procedure prescribed under Section 128 of the Act has not
been followed rendering the action taken illegal. Hence, this Writ Petition is
allowed. The impugned eviction notice issued by the respondent, dated
09.08.2024, is quashed. The respondent is directed to take steps for eviction
strictly in accordance with law. No costs. Consequently, connected
Miscellaneous Petition is closed.
NCC : Yes / No [R.S.M., J.] [L.V.G., J.]
Index : Yes / No 14.08.2024
smn2
To:
The Executive Officer,
Andipatti Town Panchayat,
Theni District.
____________
https://www.mhc.tn.gov.in/judis
R.SUBRAMANIAN, J.
and
L.VICTORIA GOWRI, J.
smn2
and
14.08.2024
____________
https://www.mhc.tn.gov.in/judis
