K. Kaliammal vs The Commissioner
2025 Latest Caselaw 5727 Mad

Citation : 2025 Latest Caselaw 5727 Mad
Judgement Date : 4 April, 2025

Madras High Court

K. Kaliammal vs The Commissioner on 4 April, 2025

Author: M. Sundar

Bench: M. Sundar

W.P. No.12192 of 2025

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 04.04.2025

CORAM:

THE HONOURABLE MR. JUSTICE M. SUNDAR
AND
THE HONOURABLE MRS. JUSTICE K. GOVINDARAJAN THILAKAVADI

W.P.No.12192 of 2025 and W.M.P.No.13756 of 2025

K. Kaliammal Petitioner
vs.
The Commissioner
Namakkal Corporation
Namakkal Respondent

Writ Petition filed under Article 226 of the Constitution of India
seeking a writ of certiorari to call for the entire records pertaining to
the impugned order passed by the respondent in Na.Ka.15/2025/F1
dated 13.03.2025 and quash the same as it is issued without
jurisdiction, by considering the petitioner’s representation dated
19.03.2025.
For petitioner Mr. R.Vivek

For respondent Mr. Rajamathivanan

ORDER

(made by K. GOVINDARAJAN THILAKAVADI, J.)

The notice dated 13.03.2025 issued by the respondent under

Section 128 of the amended Tamil Nadu Urban Local Bodies Act, 1998

(for short “The TNULB Act”) is put to challenge in this writ petition.

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2. The germane facts in a nutshell, leading to the filing of this

writ petition, are as follows:

The petitioner, an octogenarian, has been in

possession of part of the property in Survey No.351, Town

Survey No. 262/1, Ward – C, Block No.4, Namakkal

Municipality. When the petitioner was visited with notices

in the year 1977 issued by the Revenue Department to

remove encroachment on the ground that she had

encroached on Vaikal Poramboke, she filed a declaration

and injunction suit in O.S.No.273 of 1977 before the

District Munsif Court, Namakkal, which was dismissed on

08.07.1990. Thereagainst, she preferred A.S.No.115 of

1980 before the Sub Court, Namakkal, which was also

dismissed on 17.02.1981. However, on she approaching

the Tahsildar concerned narrating her case, the Tahsildar,

exercising his powers under Revenue Board Standing

Order 26(8)(1), ultimately, vide order dated 20.06.1983,

held that the negligible encroachment made by her be

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ignored. When things stood thus, after 27 years, to be

precise, in the year 2010, she was asked by the Revenue

authorities to remove the alleged encroachment made by

her. Aggrieved, she moved W.P.No.486 of 2010 which was

allowed vide order dated 08.03.2011 by recognizing the

order passed by the Tahsildar on 20.06.1983.

Notwithstanding the same, since she was disturbed, she

filed O.S.No.232 of 2013 before the Additional District

Munsif Court, Namakkal, seeking permanent injunction,

which was decreed on 29.04.2021. While so, on

28.01.2025, she was served with a notice under Section

128 of the TNULB Act, assailing which, she filed

W.P.No.5568 of 2025. In the said writ petition, this very

Bench, vide order dated 21.02.2025, directed the

respondent to pass final orders by considering her reply

dated 04.02.2025. When such was the situation, the

respondent issued order dated 13.03.2025 under Section

128 of the TNULB Act to remove the alleged

encroachment, as stated in the opening paragraph.

Challenging the same, this writ petition has been filed.

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3. The main plank of contention of the learned counsel for the

petitioner is that without following the procedure contemplated under

Section 128(1)(b) of the TNULB Act, the impugned order has come to

be passed and hence, on this short ground itself, the impugned order

is liable to be quashed and the respondent should be directed to

consider the petitioner’s representation dated 19.03.2025 and pass

orders as per Section 128(1)b of the TNULB Act.

4. For the sake of ready reference, Section 128(1)(b), as it

stands today, is reproduced below:

'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, public place, water body, tank, other water resources or any land belonging to or vested with the municipality with the municipal limit;

(b) remove any immovable structure whether permanent or of temporary nature encroaching street, public place, water body, tank, other water resources or any 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 fifteen days from the date of receipt thereof:

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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, water body, tank, other water resources 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.'

5. From a bare perusal of the impugned order, this Court

finds that there is merit and substance in the contention of the learned

counsel for the petitioner that the impugned order has been passed

directing removal of alleged encroachment straightaway, without

following the procedure contemplated in this regard and in fact, the

learned Standing Counsel for the respondent Corporation also

concedes the same.

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6. Under such circumstances, the impugned order is directed

to be treated as a show cause notice served on the petitioner today

and the petitioner’s representation dated 19.03.2025 shall be

considered and final orders shall be passed by the respondent on