Madras High Court
S.Subhashini vs The Commissioner on 7 February, 2025
Author: M.Sundar
Bench: M.Sundar
W.P.Nos.4315 & 4360 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.02.2025
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI
W.P.Nos.4315 & 4360 of 2025
and
W.M.P.Nos.4829 & 4873 of 2025
1. S.Subhashini
W/o.A.Umapathy
2. A.Umapathy
S/o.M.Alagarsamy ...Petitioners
in W.P.No.4315 of 2025
1. A.Umapathy
S/o.M.Alagarsamy
2. S.Subhashini
W/o.A.Umpathy ...Petitioners
in W.P.No.4360 of 2025
Vs
1. The Commissioner
Coimbatore City Municipal Corporation
Coimbatore - 641 001.
2. The Assistant Commissioner
East Zone
Page Nos.1/18
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Coimbatore City Municipal Corporation
Coimbatore - 641 001.
3. The Assistant Executive Engineer (Planning)
East Zone
Coimbatore City Municipal Corporation
Coimbatore - 641 001.
4. The Assistant Town Planning Officer
East Zone
Coimbatore City Municipal Corporation
Coimbatore - 641 001. ...Respondents
in both WPs
Writ Petition filed under Article 226 of the Constitution of India to
issue a Writ of Certiorari, to call for the records of the 1st respondent,
leading to the issuance of the order bearing No.11243/2021/H2(E) dated
27.01.2025 and quash the same.
For Petitioners in both WPs : Mr.B.Aravind Srevatsa
For Respondents in both WPs : Mr.K.M.D.Muhilan
Standing Counsel
ORDER
[Order of the Court was made by M.SUNDAR, J.,]
Two writ petitioners in the captioned two 'Writ Petitions' {hereinafter
'WP' in singular and 'WPs' in plural for the sake of brevity} are spouses.
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2. Captioned WPs have been filed with certiorari prayers assailing an
'order dated 27.01.2025 bearing reference No.11243/2021/H2(E) made by
R1 [The Commissioner, Coimbatore City Municipal Corporation,
Coimbatore - 641 001]' {hereinafter 'impugned order' for the sake of brevity,
convenience and clarity}. The impugned order has been made under
proviso to Section 128(1)(b) of 'The Tamil Nadu Urban Local Bodies Act,
1998 (Act 9 of 1999)' (hereinafter 'TNULB Act' for the sake of convenience
and clarity).
3. The subject matter of the captioned two main WPs is a 'piece of
land in Uppilipalayam Village, Coimbatore South Taluk, Coimbatore
District' {hereinafter 'said land' for the sake of brevity, convenience and
clarity} purchased by writ petitioners vide two sale deeds, one sale deed
dated 16.04.2010 (Document No.3115 of 2010) and another sale deed dated
26.08.2011 (Document No.8394 of 2011), both on the file of Singanallur
Sub-Registrar's Office. In one sale deed, both writ petitioners are
purchasers and in another sale deed one of the spouses is purchaser. One
sale deed pertains to 6400 sq.ft and another sale deed pertains to 3200 sq.ft
totalling 9600 sq.ft.
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4. Said land is part of an unapproved layout in the name and style of
'Krishna Nagar' and unapproved layout comprises of 8 survey numbers
namely, 134/1, 134/2, 134/3, 134/4, 135/1, 135/2, 125/3 and 135/4, all in
Uppilipalayam Village, Coimbatore South Taluk, Coimbatore District.
5. As already alluded to supra, the impugned order has been made
under proviso to Section 128(1)(b) of TNULB Act and Mr.B.Arvind
Srevatsa, learned counsel on record for writ petitioners submits that
impugned order inter alia is perverse, arbitrary and it proceeds on the
premise (without any basis) that said land has been earmarked for the
purpose of public well vide unapproved layout.
6. Issue notice to respondents.
7. Mr.K.M.D.Muhilan, learned Standing Counsel accepts notice for
all four respondents and submits, on instructions that the captioned WPs are
third set of WPs on the same subject. The second writ petitioner in
W.P.No.4315 of 2025 and first writ petitioner in W.P.No.4360 of 2025
(Mr.A.Umapathy, Son of Mr.M.Alagarsamy) is a former employee of
Coimbatore Corporation, he took 'Voluntary Retirement' {'VR'} as Public
Relation Officer and regularization for said land has been obtained
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suppressing the fact that the said land is set apart for public well and it is
fpUc;&zh efh; bghJ ,lk; (Krishna Nagar Public Place).
8. Owing to the nature of the matter, considering the facts and
circumstances of the case, main WPs were taken up with the consent of
learned counsel on both sides.
9. Learned counsel for writ petitioners contended that the impugned
order proceeds on the basis that said land has been set apart for being a
public well without any basis.
10. It was submitted by learned State Counsel that original promoter
one Mr.Krishnamma Naidu had not given any plot number to said land and
spaces for public purposes such as roads and public well were earmarked in
unapproved layout which is for 121 plots.
11. We find that the impugned order traces the flow of events and it
has noticed that after the demise of original promoter, his legal heirs
granted Power of Attorney to a Power Agent authorizing the sale of the
public well also and power agent by suppressing material facts fraudulently
obtained a regularization on 31.12.2006. Therefore, the point that the
impugned order proceeds on the basis that said land has been earmarked for
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public well without any basis does not find favour with this Court.
12. The next point contended was regarding cancellation of
regularization qua said plot. The regularization dated 27.12.2006 has been
placed before us and we find that the plot number is blank in the same.
However, a notice in June of 2024 signed by R1 on 24.06.2024 was issued
with regard to removal of encroachment as well as cancellation of
regularization of said land. This notice was assailed by writ petitioners vide
W.P.Nos.19168 & 19174 of 2024 and these two WPs along with writ
miscellaneous petitions came to be disposed of by this Court by a common
order dated 12.07.2024 wherein, notice was not set aside but it was directed
to be treated as 'Show Cause Notice' {'SCN'}. This is owing to the language
in which Section 128(1)(b) of TNULB Act is couched. Directions given by
this Court are contained in paragraph No.10 of the order dated 12.07.2024
in W.P.Nos.19168 and 19174 of 2024 and the same reads as follows:
'10. In the light of the narrative thus far, the following order
is passed :
(i) Impugned notices both bearing reference
e/f/vz;/11243/2021/vr;1(fp) issued in the June of 2024, signed by
R1 (the Commissioner, Coimbatore Municipal Corporation,
Coimbatore - 641 001) on 24.06.2024 are now to be treated as
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'Show Cause Notices' {hereinafter 'SCNs' for the sake of brevity}
within the meaning of Section 128(1)(b) of TNULB Act;
(ii) Writ petitioners shall be treated as noticees and writ
petitioners shall send their responses to SCNs within seven days
from today i.e., on or before 19.07.2024;
(iii) Thereafter, R1 shall consider the responses and take a
call on its own merits and in accordance with law, untrammeled by
this order;
(iv) Take a call means either drop the proceedings or proceed
with the removal of encroachment and it includes any other action
permissible in law i.e., more particularly, TNULB Act and TNULB
Rules therein;
(v) In the light of proviso to Section 128(1)(b) of TNULB Act,
if any representation is received within seven days window provided
supra, R1 shall consider the same before passing final orders;
(vi) We make it clear that all the rights and contentions of
both sides are preserved qua Statutory drill under TNULB Act /
TNULB Rules and further proceedings, if any and if that be so;
(vii) While considering the responses to impugned notices
which have now become SCNs, we make it clear that it is open to R1
to hold personal hearing, if deemed necessary which in turn will
depend on the nature of responses. We also actually make it clear
for the sake of specificity that as it is not imperative for R1 to hold
personal hearing and it is only discretionary and it will depend on
the nature of responses to SCNs. This limb is owing to language in
which Section 128(1)(b) of TNULB Act and proviso thereat are
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couched as the same only provide for being show caused and does
not make for personal hearing statutorily imperative.'
13. Post aforementioned 12.07.2024 order, writ petitioners sent
response dated 19.07.2024 but without passing any order under proviso to
Section 128(1)(b) of TNULB Act, the Commissioner proceeded with
removal of encroachment and therefore, writ petitioners came before this
Court for second time vide W.P.Nos.22762 and 22767 of 2024 and these two
WPs along with writ miscellaneous petitions came to be disposed of by a
common order dated 20.01.2025 wherein it was made clear that R1 - the
Commissioner should pass final orders in accordance with proviso to
Section 128(1)(b) of TNULB Act. The operative portion of 20.01.2025
order in W.P.Nos.22762 and 22767 of 2024 is paragraph No.10 and the
same reads as follows:
'10. In the light of the narrative, discussion and dispositive
reasoning thus far, the following order is made:
i. R1 (Commissioner, Coimbatore Municipal
Corporation) shall now pass final orders in accordance with
proviso to Section 128(1)(b) of TNULB Act within one week from
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today, i.e., on or before 27.01.2025 by considering the
aforementioned 19.07.2024 representation (scanned and
reproduced in our earlier proceedings) as 'representation' within
the meaning of proviso to Section 128(1)(b);
ii. The order passed in the aforementioned manner shall
be duly served on both the writ petitioners under due
acknowledgment within three working days from the date of the
order;
iii. If the aforementioned order of R1 is in favour of the
writ petitioners, that would be the curtains on the matter but if it is
adverse to the writ petitioners, the order shall be kept in abeyance
for 10 days from the date of service of the order on the writ
petitioners. As there are two writ petitioners, 10 days will be
computed from the latter date in respect of two writ petitioners if
service is not made on them on the same day;
iv. The aforementioned window of 10 days is provided for
the writ petitioners to assail the order (if adverse to the writ
petitioners) if so advised and if so desired;
v. Though obvious, we make it clear that R1 shall pass
final orders in accordance with proviso to Section 128(1)(b) of
TNULB Act untrammelled by this order and this proceedings. In
other words, R1 shall pass orders vide relevant provisions of
TNULB Act on the merits of the representation of writ petitioners
(representation dated 19.07.2024) and in accordance with law; and
vi. Learned Additional Advocate General and Senior
Advocate very fairly submitted that status quo as of today will be
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maintained between today and lapsing of aforementioned 10 days
window period (if R1 passes an adverse order). This submission is
recorded. Likewise, the submission that the board now placed in
the property in question will be removed forthwith, is recorded but
with a rider that further action will depend on final orders to be
made by R1.'
14. As the original notice issued in June of 2024 (signed on
24.06.2024) by R1 talks about both removal of encroachment and
cancellation of regularization, we find that writ petitioners have been given
adequate opportunity to respond, they have responded on 19.07.2024 and
after considering the response, the impugned order has been made.
Therefore, this point also does not find favour with this Court.
15. It was submitted that the impugned order does not assign reasons
for cancellation of regularization. Three paragraphs in the impugned order
are relevant and the same are as follows:
'The regularization scheme applied exclusively to house plots.
However, the power agent by misrepresenting the earmarked public
Well to be a plot in the said layout, fraudulently obtained a
regularization order for an extent of 105' x 80' (8,400 ft2) by
suppressing critical facts. This order was secured without proper
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verification of the revenue records, which clearly specifies the
subject land as 'fpUc;&zh efh; bghJ ,lk;;' (Krishna Nagar
Public Place)'.
One Mr.Arputharaj, petitioners Mr.Umapathy Mrs.Subhashini
and their representative advocate vide their representations cited as
10, 11, 13 and 15 have failed to explain the basis in which the said
power agent had obtained the regularization order cited as 3 above.
Therefore, the said regularization order cited as 3 above is liable to
be cancelled with immediate effect.
..................
Therefore, it is hereby ordered that the said regularization
order obtained for the public purpose site, cited as 3 above is
cancelled with immediate effect.'
16. A careful perusal of the aforementioned portion of the impugned
order brings to light that sufficient reasons have been given. As already
alluded to supra, we find that the regularization order does not contain even
a plot number.
17. The next point that was contended is that regularization is
pursuant to a Government Order being G.O.Ms.No.59 dated 25.07.2006 and
the impugned order proceeded on the basis of two different cut off dates for
regularization, i.e., 19.01.2006 and 31.12.2006. In our considered view,
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this hardly matters as the regularization has been cancelled by giving
reasons particularly on the basis that regularization has been obtained by
suppression of fact that original unapproved layout was set apart for public
well. As already alluded to supra, we find that regularization dated
27.12.2006 does not even contain plot number and this buttresses the
narrative that the original promoter Mr.Krishnamma Naidu did not assign
any plot number to said land.
18. It was next contended that the impugned order has usurped Civil
Court powers as it refers to Will of Krishnamma Naidu and it has gone into
the testament. We are of the considered view that the impugned order has
been passed after taking into account the detailed response of writ
petitioners dated 19.07.2024 and writ petitioners have not placed the
unapproved layout or any other document to demonstrate that said land was
not set apart for public well. Therefore, we are of the view that the
reference to Will in the impugned order cannot be construed as usurpation
of powers of civil Court. This point does not cut ice with this Court.
19. It was submitted that impugned order was a foregone (prejudged)
conclusion but there were two sets of earlier writ petitions. In the first set of
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writ petitions, notices were directed to be treated as SCNs and writ
petitioners were given adequate opportunity to respond. In the second set of
writ petitions, action was without passing final order in accordance with the
proviso to Section 128(1)(b) of TNULB Act and therefore, we interfered to
put the clock back and made it clear that R1 should pass an order in
accordance with proviso to Section 128(1)(b) of TNULB Act. In this view
of the matter, it cannot be gainsaid that the impugned order is a prejudged
conclusion.
20. The next point argued was that the impugned order is perverse
and arbitrary. In the light of the trajectory the matter has taken or in other
words, the dispositive reasoning in the previous point i.e., writ petitioners
being show caused, given adequate opportunity both regarding removal of
encroachment as well as cancellation of regularization and impugned order
being passed thereafter, that too, strictly in accordance with Section 128 of
TNULB Act, leaves us with the considered view that the impugned order is
not vitiated either by perversity or arbitrariness. To be noted, Section 128
of TNULB Act reads as follows:
'128. Power to remove encroachment from public place. - (1)
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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.
(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.'
21. This Court also finds that the impugned order has strictly adhered
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to orders of this Court as is evident from conclusion paragraph which says
that the impugned order is kept in abeyance for a period of 10 days from the
date of service and we have made this provision in our earlier order to
enable writ petitioners to assail the impugned order, if it is adverse to writ
petitioners. Writ petitioners have done that and have now come before us.
There are two aspects of this point, one is, writ petitioners have been given
adequate / ample opportunity and second is, orders of this Court have been
strictly and scrupulously adhered to.
22. Notwithstanding very many averments and grounds in the writ
affidavit, writ petitioners' campaign against the impugned order was
predicated on points that have been set out supra and therefore, we have
dealt with the points that were canvassed before us.
23. In the light of the narrative, discussion and dispositive reasoning
thus far, we find that there is no reason to interfere qua the impugned order
much less accede to certiorari prayer.
25. Before concluding, we record the stated position of both sides that
said land had some plantations, security camp and it is vacant land as of
today.
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Ergo, the sequitur is captioned WPs fail and the same are dismissed.
Consequently, captioned 'Writ Miscellaneous Petitions' {hereinafter 'WMPs'
for the sake of brevity} thereat also perish with the main WPs. In other
words, captioned WMPs are also dismissed. There shall be no order as to
costs.
[M.S.,J.] [K.G.T.,J.]
07.02.2025
Index : Yes / No
Neutral Citation : Yes / No
Speaking order / Non-speaking order
mk
To
1. The Commissioner
Coimbatore City Municipal Corporation
Coimbatore - 641 001.
2. The Assistant Commissioner
East Zone
Coimbatore City Municipal Corporation
Coimbatore - 641 001.
3. The Assistant Executive Engineer (Planning)
East Zone
Coimbatore City Municipal Corporation
Coimbatore - 641 001.
4. The Assistant Town Planning Officer
East Zone
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W.P.Nos.4315 & 4360 of 2025
Coimbatore City Municipal Corporation
Coimbatore - 641 001.
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M.SUNDAR, J.,
and
K.GOVINDARAJAN THILAKAVADI, J.,
mk
W.P.Nos.4315 & 4360 of 2025
07.02.2025
(2/2)
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