Madras High Court
E.Usharani vs The Member Secretary on 5 January, 2024
Author: S.S.Sundar
Bench: S.S.Sundar
W.P.Nos.25324 & 24093 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.01.2024
CORAM :
THE HON'BLE MR. JUSTICE S.S.SUNDAR
AND
THE HON'BLE MR.JUSTICE N.SENTHILKUMAR
W.P.Nos.25324 & 24093 of 2017
E.Usharani .. Petitioner in W.P.No.25324 of 2017
K.Selvaraj .. Petitioner in W.P.No.24093 of 2017
v.
1. The Member Secretary
Chennai Metropolitan
Development Authority
Thalamuthu Natarajan Maaligai
Egmore, Chennai 600 008
2. The Commissioner
Villivakkam Panchayat Union
Ambattur, Chennai 600 053
3. The Tahsildar
Maduravoyal, Chennai 600 095 .. Respondents 1 to 3 in both W.P's
4. V.Sanjay
(R4 impleaded vide order
dated 05.01.2024 in WMP.
27745 & 27746/2017 in WP.
24093 & 25324/2017) .. 4th Respondent in both W.P's
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W.P.Nos.25324 & 24093 of 2017
W.P.No.25324 of 2017 is filed under Article 226 of the Constitution
of India, praying for issuance of a Writ of Certiorari, calling for the entire
records in pursuant to the proceedings of the 2nd respondent vide
Na.Ka.No.2252/2017/A3 dated 01.09.2017 and quash the same.
W.P.No.24093 of 2017 is filed under Article 226 of the Constitution
of India, praying for issuance of a Writ of Certiorari, calling for the records
of the 2nd respondent relating to his proceeding Na.Ka.No.2252/2017/A3
dated 01.09.2017 and to quash the same.
For Petitioners :: Ms.S.Sriranjini for
M/s M.R.Sakunthala
For Respondents :: Mr.C.N.Vinobha
Standing Counsel for R1
Mr.P.Sanjai Gandhi for R2
Mrs.S.Anitha
Special Government Pleader for R3
Dr.G.Krishnamurthy for R4
COMMON ORDER
(Order of the Court was made by S.S.SUNDAR,J.)
The petitioners in these two writ petitions are the owners of plots
bearing Nos.27 & 28 in Sakthi Nagar Second Street, Vanagaram, Chennai in
the unapproved layout coming under the control of Villivakkam Panchayat
Union. The petitioners have also put up constructions. Though the
construction put up by the petitioners in their respective plots is not in
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W.P.Nos.25324 & 24093 of 2017
accordance with any approved building plan or planning permission, it is
admitted that the petitioners in the respective writ petitions have filed
regularisation applications and they are being followed up. In the
meanwhile, one V.Sanjay, who has been impleaded as the fourth respondent
in the writ petitions, filed Writ Petition No.36758 of 2015 before this Court
for a direction to the respondents 1 & 2 herein to consider the representation
dated 07.10.2015 and to remove the unauthorized and illegal construction
put up by the petitioners by encroaching into the public property. This
Court, by order dated 19.11.2015, directed the official respondents to
consider and pass orders on the fourth respondent's various representations
on merit and in accordance with law within a period of six weeks after
affording opportunity of hearing to the petitioners herein before taking any
coercive action, if necessary. It appears that a contempt petition is also filed
by the fourth respondent. Probably, on account of the filing of contempt
petition, the second respondent appears to have called upon the petitioners
in the respective writ petitions to submit documents in their possession
regarding their residential house as well as residential plot. The petitioners
specifically state that they have personally submitted the documents as
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W.P.Nos.25324 & 24093 of 2017
required by the second respondent and that the second respondent refused to
receive the documents submitted by the petitioners.
2. When the petitioners have filed applications for regularization of
the unauthorized construction admitting that the construction put up by
them is not after obtaining the building plan permission in conformity with
the building rules, the second respondent, by the impugned order dated
01.09.2017, had informed the petitioners that the encroachment which is
identified as per the plan appended to the order would be removed on
07.09.2017 with the assistance of revenue department, police department
and electricity department. The petitioners were therefore advised to remove
all their belongings safely before carrying out the operation.
3. This order is put to challenge before this Court in the above writ
petitions mainly on the ground that the petitioners were not given sufficient
opportunity before passing the order directing removal of encroachment and
that therefore the impugned order is in violation of the principles of natural
justice.
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W.P.Nos.25324 & 24093 of 2017
4. Though the learned counsel appearing for the contesting second
respondent refers to the order passed by this Court earlier in the writ
petition filed by the fourth respondent and the direction to consider his
representation, he is unable to convince this Court that the impugned order
was passed after issuing a show cause notice to the petitioners. Even if a
statute does not provide observation of the principles of natural justice,
before passing an order affecting an individual's civil right, this Court has
repeatedly held that observance of principles of natural justice should be
read into the provisions of the Act whenever coercive action is taken
affecting the civil rights of the petitioners. Therefore, the impugned order is
liable to be quashed on the short ground that the same is in violation of the
principles of natural justice.
5. It is now brought to our notice that by virtue of the notification
issued by the Government, the Tamil Nadu Urban Local Bodies Act, 1998
has come into force and the said Act is applicable to the second respondent
local body, namely, Villivakkam Panchayat Union. Section 128 of the
Tamil Nadu Urban Local Bodies Act, 1998 reads as follows:-
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W.P.Nos.25324 & 24093 of 2017
“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 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 1
[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:
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W.P.Nos.25324 & 24093 of 2017
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.”
Since the encroachment is by putting up construction in the street according
to the second respondent, a show cause notice is required even in terms of
Section 128(1)(b) of the Act. Further, following the judgment of the
Hon'ble Supreme Court in Madhavrao Scindia v. Ramesh Jatav and others,
(2006) 1 SCC 379, this Court in W.P.(MD) No.7664 of 2022 dated
09.06.2022 (J.Nisha v. The District Collector, Nagercoil, Kanyakumari
District and others) has held that the question whether a person is in
encroachment cannot be determined without conducting a survey and
measurement in his presence when the alleged encroachment is in dispute.
6. In the light of the above, these writ petitions are disposed of with
the following directions:-
(a) The impugned order dated 01.09.2017 is quashed, as
the same is in violation of the principles of natural justice.
(b) The second respondent shall cause a survey and
inspection by the third respondent-Tahsildar along with the
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W.P.Nos.25324 & 24093 of 2017
Taluk Surveyor. On such requisition by the second respondent,
the third respondent-Tahsildar shall inspect the subject
properties with the assistance of the Taluk Surveyor or a
competent person in the presence of the petitioners after
issuing notice to the petitioners in the respective writ petitions,
within a period of three weeks from the date of requisition by
the second respondent.
(c) After inspection, the third respondent shall draw a
report along with the plan showing the encroachment, if any,
made by any of the petitioners.
(d) Copy of report of inspection drawn by the third
respondent shall be furnished to the petitioners as well as the
second respondent.
(e) If the report discloses encroachment by the
petitioners in any public street or road, the second respondent
shall issue show cause notice to the petitioners in terms of
Section 128(1)(b) of the Tamil Nadu Urban Local Bodies Act,
1998 and after giving an opportunity of hearing to the
petitioners, shall pass final orders within a period of six weeks
from the date of hearing on the reply, if any, received from the
petitioners.
(f) The second respondent shall also give an opportunity
of hearing to the fourth respondent at whose instance the
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W.P.Nos.25324 & 24093 of 2017
earlier proceedings were initiated for removal of
encroachment.
(g) It is now represented that the petitioners have now
submitted regularization applications. Depending upon the
outcome of the regularization applications, it is open to the
official respondents to initiate appropriate action for removal
of unauthorized construction, if any.
Consequently, W.M.P.Nos.26782 & 25412 of 2017 are closed.
W.M.P.No.31719 of 2022 is also closed as unnecessary, as the fourth
respondent has already been impleaded. There shall be no order as to costs.
Index : yes/no (S.S.S.R.,J.) (N.S.,J.)
Neutral citation : yes/no 05.01.2024
ss
To
1. The Member Secretary
Chennai Metropolitan
Development Authority
Thalamuthu Natarajan Maaligai
Egmore, Chennai 600 008
2. The Commissioner
Villivakkam Panchayat Union
Ambattur, Chennai 600 053
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W.P.Nos.25324 & 24093 of 2017
3. The Tahsildar
Maduravoyal, Chennai 600 095
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W.P.Nos.25324 & 24093 of 2017
S.S.SUNDAR,J.
AND
N.SENTHILKUMAR,J.
ss
W.P.Nos.25324 & 24093 of 2017
05.01.2024
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