Madras High Court
Karthikeyan vs The Commissioner on 17 February, 2025
Author: M.Sundar
Bench: M.Sundar
W.P.No.5433 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.02.2025
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI
W.P.No.5433 of 2025
and
W.M.P.No.5983 of 2025
Karthikeyan
S/o.Late Rajan ...Petitioner
Vs
1. The Commissioner
Coimbatore Municipal Corporation
Coimbatore - 641 001.
2. The Assistant Planning Officer
East Division,
Coimbatore Corporation
Coimbatore. ...Respondents
Writ Petition filed under Article 226 of the Constitution of India to
issue a Writ of Certiorari, calling for the records of proceedings Nil dated
31.01.2025 on the file of the 2nd respondent and quash the same as illegal,
incompetent and wholly without jurisdiction.
Page Nos.1/9
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W.P.No.5433 of 2025
For Petitioner : Mr.V.Raghavachari
Senior Counsel
for Mr.S.Kirubanandam
For Respondents : Mr.D.R.Arunkumar
Standing Counsel
ORDER
[Order of the Court was made by M.SUNDAR, J.,]
Captioned main 'Writ Petition' {hereinafter 'WP' for the sake of
brevity, convenience and clarity} has been filed assailing a 'notice dated
31.01.2025 issued by R2 [The Assistant Planning Officer, East Division,
Coimbatore Corporation, Coimbatore]' {hereinafter 'impugned notice' for
the sake of brevity, convenience and clarity}.
2. Mr.V.Raghavachari, learned Senior Counsel, instructed by
Mr.S.Kirubanandam, counsel on record for writ petitioner submits that the
impugned notice is one wholly without jurisdiction as R2 is not vested with
powers under 'The Tamil Nadu Urban Local Bodies Act, 1998 (Act 9 of
1999)' (hereinafter 'TNULB Act' for the sake of convenience and clarity) to
issue the impugned notice.
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3. Issue notice to respondents.
4. Mr.D.R.Arunkumar, learned Standing Counsel for Coimbatore
Corporation accepted notice for both respondents and fairly conceded that
R2 does not have authority and is not vested with powers to issue impugned
notice.
5. Owing to the fair stand taken by learned Standing Counsel for
respondents, legal drill at hand has become fairly simple. Therefore, with
the consent of learned counsel on both sides, main WP was taken up in the
Admission Board.
6. A scanned reproduction of the impugned notice issued by R2 as
placed before us is as follows:
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7. A careful perusal of impugned notice brings to light that R2 has
made it clear that it has been issued under Section 128 of TNULB Act.
8. Section 128 of TNULB Act 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.
(2) Whoever makes any encroachment in any
land or space (not being private property) in any public
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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.'
9. A careful perusal of Section 128 of TNULB Act makes it clear that
a notice under Section 128 of TNULB Act can be issued only by
'Commissioner'. The Commissioner is a term of art. In other words,
Commissioner is a defined term having been defined vide sub-section (7) of
Section 2 of TNULB Act which reads as follows:
'2. Definitions. - In this Act, unless the context otherwise requires-
(1) .................
(2) ................
(3) .................
(4) .................
(5) .................
(6) ................
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(7) "Commissioner" means -
(a) in relation to a municipal corporation and municipal
council, the Commissioner of the municipal corporation or municipal
council, as the case may be; and
(b) in relation to a town panchayat, the Executive Officer of
the town panchayat; '
10. In the case on hand, considering that the matter pertains to
Coimbatore Corporation, Commissioner would be Commissioner within the
meaning of Section 2(7)(a) and R2 is obviously not the commissioner.
11. The narrative, discussion and dispositive reasoning thus far makes
it clear that impugned notice is wholly without jurisdiction. Therefore, we
are acceding to certiorari prayer on this short point without expressing any
view or opinion on the merits of the matter.
12. The sequitur of not expressing any view or opinion on the merits
of the matter is, it is now open to R1 to issue notice afresh under Section
128 of TNULB Act (if so advised and if so desired). After notice under
Section 128 of TNULB Act is issued, considering the nature of the matter, it
obviously has to be a 'Show Cause Notice' {'SCN'} within a meaning of
Section 128(1)(b) of TNULB Act. Therefore, we make it clear that all rights
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and contentions of writ petitioner also stand preserved (untrammelled by
this order) on being show-caused vide notice by R1. Thereafter, the matter
will be dealt with on its own merits and in accordance with law
untrammelled by this order.
Captioned WP allowed albeit with aforementioned preservations.
Consequently, connected Writ Miscellaneous Petition is disposed of as
closed. There shall be no order as to costs.
[M.S.,J.] [K.G.T.,J.]
17.02.2025
Index : Yes / No
Neutral Citation : Yes / No
Speaking order / Non-speaking order
mk
To
1. The Commissioner
Coimbatore Municipal Corporation
Coimbatore - 641 001.
2. The Assistant Planning Officer
East Division,
Coimbatore Corporation
Coimbatore.
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M.SUNDAR, J.,
and
K.GOVINDARAJAN THILAKAVADI, J.,
mk
17.02.2025
https://www.mhc.tn.gov.in/judis
