Madras High Court
P.Thangavel vs The Commissioner on 14 August, 2024
Author: R.Subramanian
Bench: R.Subramanian
W.P.(MD)No.19627 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.19627 of 2024
and
W.M.P.(MD)No.16639 of 2024
P.Thangavel ... Petitioner
-vs-
1.The Commissioner,
Tirunelveli Corporation,
Tirunelveli.
2.The Assistant Commissioner,
Melapalayam Zone,
Tirunelveli. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India, to
issue a Writ of Certiorarified Mandamus, calling for the records of the impugned
eviction notice issued by the second respondent vide proceedings in Na.Ka.No.
TP3/6575/2023, dated 06.08.2024, received through registered post on
10.08.2024, quash the same as illegal and consequently, directing the respondents
not evict the petitioner's Temple except under due process of law.
____________
Page 1 of 7
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.19627 of 2024
For Petitioner : Mr.M.Jegadeesha Pandian
For Respondents : Mr.S.P.Maharajan
Special Government Pleader
ORDER
[Order of the Court was made by R.SUBRAMANIAN, J.]
Challenge is to the order passed by the Assistant Commissioner, Tirunelveli
Corporation under Section 128(1) and (2) of the Tamil Nadu Urban Local Bodies
Act, 1998 [hereinafter referred to as ''the Act''], requiring the petitioner to remove
the encroachment.
2. One Kaliappan filed W.P.(MD)No.1556 of 2023 seeking Mandamus,
directing the Tahsildar, Palayamkottai, to remove the encroachments over the
street. The said Writ Petition was disposed of on 29.11.2023 with the following
observations:-
''Heard Mr.S.M.Mohan Gandhi, learned counsel for the petitioner,
Mr.P.Thilak Kumar, learned Government Pleader appearing for the
respondents 1 and 3 and Mr.S.P.Maharajan, learned Standing counsel
appearing for the second respondent.
2. The learned Government Pleader submits that the property in
question would be surveyed and if any encroachment is found, action
____________
https://www.mhc.tn.gov.in/judis
would be taken in accordance with law.
3. In view of the said statement, the Writ Petition is disposed of.
The property would be surveyed within a period of three months. No
costs.''
3. After the said order, the Assistant Commissioner, Tirunelveli
Corporation, issued a notice to the petitioner on 11.03.2024, directing the
petitioner to remove the encroachment. This notice was subject matter of
challenge in W.P.(MD)No.6771 of 2024.
4. Taking note of the fact that the provisions of Section 128 of the Act,
require the respondents to issue a show cause notice to the alleged encroacher and
also to consider the explanation offered by him before passing an order of
eviction, the Division Bench of this Court directed the notice dated 11.03.2024 to
be treated as a show cause notice and required the petitioner to file his objections
within a period of two weeks and upon receipt of the objection, the authorities
shall proceed in accordance with law after considering the explanation /
objection. Thereafter, the petitioner has submitted an explanation on 19.03.2024.
The same was received by the respondents on 20.03.2024. Thereafter, a notice
____________
https://www.mhc.tn.gov.in/judis
was issued to have the land surveyed on 18.06.2024. The order impugned in the
Writ Petition came to be passed on 06.08.2024.
5. Section 128 of the Act, which deals with removal of encroachments over
the properties vested in the Urban Local Bodies, 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.
____________
https://www.mhc.tn.gov.in/judis
(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. (emphasis supplied)''
6. The proviso to sub-section (1) of Section 128 of the Act casts an
obligation on the authority to consider the objections if any received within time.
This Court has granted two weeks time to the petitioner to submit his objections
and objections have also been submitted within the time granted by this Court.
The order impugned does not reflect any application of mind on the objections
submitted by the petitioner. Sadly, even the order of this Court dated 19.03.2024,
has not been referred to. The eviction order passed refers to only the old Writ
Petition in W.P.(MD)No.1556 of 2023, dated 29.11.2023. It is, therefore, clear
that the procedure prescribed under Section 128 of the Act, which requires a
minimum adherence to principles of natural justice have not been followed.
____________
https://www.mhc.tn.gov.in/judis
Even, in case, where the Act does not provide for a show cause notice, this Court
in T.S.Senthilkumar vs. Government of Tamil Nadu reported in 2010 (3) MLJ
771, had held that the principles of natural justice must be read into an enactment,
which provides for removal of encroachments. Hence, this Writ Petition will
stand allowed. The impugned notice will stand quashed. The respondents will
consider the explanation of the petitioner and pass orders afresh. No costs.
Consequently, connected Miscellaneous Petition is closed.
NCC : No [R.S.M., J.] [L.V.G., J.]
Index : No 14.08.2024
smn2
To:
1.The Commissioner,
Tirunelveli Corporation,
Tirunelveli.
2.The Assistant Commissioner,
Melapalayam Zone,
Tirunelveli.
____________
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
