Madras High Court
W.M.M.Maznavi vs The Commissioner on 4 November, 2024
Author: M.Sundar
Bench: M.Sundar
W.P.No.31442 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.11.2024
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MR.JUSTICE K.RAJASEKAR
W.P.No.31442 of 2024
and
W.M.P.Nos.34146 & 34147 of 2024
and
W.P.No.31442 of 2024
W.M.M.Maznavi
Partner M/s.Wavoo Magdoom Realtors
191, 3rd Floor, N.S.C.Bose Road
Chennai-600 001. ... Petitioner
Vs.
1. The Commissioner
The Greater Chennai Corporation
Ripon Building, Chennai-600 003.
2. The Executive Engineer
Zonal Office - XV
Greater Chennai Corporation
No.120, Rajiv Gandhi Salai
Sholinganallur
Chennai-600 119.
3. Zonal Officer
Page Nos.1/9
https://www.mhc.tn.gov.in/judis
W.P.No.31442 of 2024
Zonal Office - XB
Greater Chennai Corporation
No.120, Rajiv Gandhi Salai
Sholinganallur, Chennai-600 119. ... Respondents
Prayer :
Writ Petition filed under Article 226 of The Constitution of India
praying to issue a Writ of Certiorari calling for the records of the 2nd
respondent pertaining to the impugned notice No.Z.O.15/4983/2024 dated
25.09.2024 issued to the petitioner and quash the same.
For Petitioner : Mr.P.Wilson
Senior Counsel
for Mr.Richardson Wilson
For Respondents : Mr.G.T.Subramanian
Standing Counsel for Corporation
ORDER
[Order of the Court was made by M.SUNDAR, J.,]
Captioned 'Writ Petition' {hereinafter 'WP' for the sake of brevity} has
been filed inter alia assailing a 'notice dated 25.09.2024 bearing reference
No.Z.O.15/4983/2024' {hereinafter 'impugned notice' for the sake of
brevity} purportedly 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}.
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2. Mr.P.Wilson, learned Senior Counsel appearing on behalf of
counsel on record for writ petitioner submits that it is not a case of
encroachment and that allegation against writ petitioner is only construction
in violation of plan. It is also brought to our notice that proceedings under
Section 79 of 'the Tamil Nadu Town and Country Planning Act, 1971 (Tamil
Nadu Act 35 of 1972)' [hereinafter 'said Act' for the sake of brevity} is
pending.
3. Issue notice to respondents.
4. Mr.G.T.Subramanian, learned Standing Counsel accepts notice for
all three respondents and Mr.G.T.Subramanian, learned Standing Counsel
submits, on instructions that the notice has been issued pursuant to certain
Court directions but it appears that Court directions if at all and if that be did
not direct issue of notice under Section 128 of TNULB Act. It is emphatic
submission of learned Senior Counsel that Section 128 of TNULB Act is not
attracted.
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5. Be that as it may, a perusal of impugned notice brings to light that
writ petitioner noticee has been called upon to show cause and notice also
says in the same breath that action will be taken to remove deviated portion
of unauthorized construction without further notice. Impugned notice has to
be treated as 'show cause notice' ['SCN'] considering the language in which
Section 128 of TNULB Act is couched. 128 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.
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(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 of less than one year.'
6. If the impugned notice is treated as SCN, it will be open to writ
petitioner noticee to send a reply / show cause inter alia raising the point
that Section 128 of TNULB Act will not be attracted. If writ petitioner does
that, second respondent has to pass order. This is clear from the proviso to
Section 128(1)(b) of TNULB Act. On response, it is open to respondents to
roll back and withdraw the notice but that will not curtail respondents from
initiating proceedings under Section 135 of TNULB Act or any other
appropriate provisions of applicable Statute/s.
7. Considering the limited scope of captioned WP, with the consent of
learned counsel on both sides main WP was taken up in the Admission
Board.
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8. The following order is made:
(i) Impugned notice dated 25.09.2024 bearing
reference No.Z.O.15/4983/2024 will be treated as SCN;
(ii) Writ petitioner shall send a reply to the same
within a fortnight from today i.e., on or before
18.11.2024;
(iii) All rights and contentions of writ petitioner
including rights of writ petitioner to say that Section 128
of TNULB Act is not attracted are preserved for sending
reply to SCN;
(iv) On receipt of reply within fortnight, the
second respondent shall pass an order within a fortnight
therefrom i.e., 02.12.2024;
(v) If the order is adverse to writ petitioner, the
order will be kept in abeyance for another fortnight i.e.,
till 16.12.2024 to enable writ petitioner to work out his
remedies;
(vi) On the contrary, if the order is in favour of
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writ petitioner, it will be open to respondents to initiate
action under suitable provision, if so advised and if so
desired;
(vii) Though obvious, we make it clear that further
action will be subject to orders that are made by R2 in
response to SCN.
Captioned WP is disposed of in the aforesaid manner. Consequently,
captioned WMPs are disposed of as closed. There shall be no order as to
costs.
(M.S.,J.) (K.R.S.,J.)
04.11.2024
Index : Yes / No
Neutral Citation : Yes / No
Speaking order / Non-speaking order
mk
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To
1. The Commissioner
The Greater Chennai Corporation
Ripon Building, Chennai-600 003.
2. The Executive Engineer
Zonal Office - XV
Greater Chennai Corporation
No.120, Rajiv Gandhi Salai
Sholinganallur
Chennai-600 119.
3. Zonal Officer
Zonal Office - XB
Greater Chennai Corporation
No.120, Rajiv Gandhi Salai
Sholinganallur
Chennai-600 119.
https://www.mhc.tn.gov.in/judis
M.SUNDAR, J.,
and
K.RAJASEKAR, J.,
mk
04.11.2024
https://www.mhc.tn.gov.in/judis
