Madras High Court
Gnanachandran vs The Secretary To Government on 24 February, 2025
Author: M.Sundar
Bench: M.Sundar
W.P. No.6351 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.02.2025
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MRS.JUSTICE K. GOVINDARAJAN THILAKAVADI
W.P.No.6351 of 2025 and W.M.P. No.6986 of 2025
Gnanachandran Petitioner
vs.
1. The Secretary to Government
Municipal Administration
Fort St. George
Chennai 600 009
2. The Commissioner
Cuddalore Corporation
Cuddalore 607 001
3. The Commissioner of Police
Cuddalore Corporation
Cuddalore 607 001
4. The Collector
Cuddalore District
Cuddalore 607 001 Respondents
Writ Petition filed under Article 226 of the Constitution of India
praying to issue a writ of mandamus for free flow of traffic to restrain
the respondent Corporation to construct shops in S.No.449/1A2 which
obstructs the free flow of traffic in the public road which is adjoining
the petitioner's property entry gate and out gate.
Page Nos.1/10
https://www.mhc.tn.gov.in/judis
W.P. No.6351 of 2025
For petitioner Mr. P. Mahaadevan
For RR 1 & 2 Dr. T. Seenivasan
Special Government Pleader
For R3 Mr. M. Babu Muthu Meeran
Additional Public Prosecutor
For R4 Mr. M.S. Arasakumar
Government Advocate
ORDER
[made by M.SUNDAR, J.]
Subject matter of captioned main 'Writ Petition' (hereinafter 'WP'
for the sake of brevity) is 'land comprised in Town Survey No.449/1A2
situate in Ward No.6, Block No.16 in Cuddalore Corporation'
(hereinafter 'said land' for the sake of convenience and clarity).
2. Mr. P. Mahaadevan, learned counsel for writ petitioner, very
fairly submits that writ petitioner has been visited with a notice under
Section 128 of 'The Tamil Nadu Urban Local Bodies Act, 1998 (Act 9 of
1999)' (hereinafter 'TNULB Act' for the sake of convenience and
clarity). This notice dated 26.09.2023 bearing reference
Na.Ka.No.6322/2014/F1 shall hereinafter be referred to as 'said notice'
for the sake of convenience and clarity.
https://www.mhc.tn.gov.in/judis
3. A scanned reproduction of said notice is as follows:
https://www.mhc.tn.gov.in/judis
4. Learned counsel submits that writ petitioner, as noticee
qua said notice, has responded vide a representation dated
12.10.2023 but no orders have been made by R2 (Commissioner,
Cuddalore Corporation) and under such circumstances, captioned main
WP has been filed.
5. Issue notice to respondents.
6. Dr. T. Seenivasan, learned Special Government Pleader,
accepts notice for RR 1 and 2, Mr. M. Babu Muthu Meeran, learned
Additional Public Prosecutor, accepts notice for R3 and
Mr.M.S.Arasakumar, learned Government Advocate, accepts notice for
R4.
7. Learned State counsel for R4 submits, on instructions, that
the prayer in the captioned main WP is to mandamus (restrain)
Cuddalore Corporation from constructing shops in said land on the
ground that the same will obstruct free flow of traffic adjoining the
entry gate and out gate of writ petitioner's property.
https://www.mhc.tn.gov.in/judis
8. We carefully considered the submissions and the obtaining
position.
9. Section 128 of TNULB 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 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.'
https://www.mhc.tn.gov.in/judis
10. From a reading of the aforementioned provision, it is clear
that said notice has been issued under Section 128(1)(b). Section
128(1)(b) provides for a noticee being show caused vide a show cause
notice (hereinafter 'SCN' for the sake of brevity) returnable in seven
days but the said notice, as would be evident from the scanned
reproduction supra, instead of show causing the writ petitioner, has
directly called upon the writ petitioner to remove the alleged
encroachment.
11. However, writ petitioner has responded to said notice vide
a representation dated 12.10.2023 about which also there is allusion
supra.
12. If the said notice had been issued as SCN, the writ
petitioner ought to have responded within seven days but as it has not
been issued as SCN, we hold that it shall now be construed as SCN
and as it is being construed as SCN now and as the writ petitioner has
already sent a representation, we deem it appropriate to construe writ
petitioner's 12.10.2023 representation to have been sent post SCN
and not just post said notice.
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13. The above means that R2 should now pass 'final orders'
vide proviso to Section 128(1)(b).
14. Learned counsel for writ petitioner submits that
notwithstanding the prayer in captioned main WP, it will serve the
purpose and satisfy the prayer of the writ petitioner if R2 passes 'final
orders' in the aforesaid manner.
15. Learned State Counsel for R4 submits that R2 will now
pass 'final orders' as expeditiously as the business of R2 permits. This
submission is recorded.
16. Let the same be done and let a copy of 'final orders' be
served on the writ petitioner under due acknowledgment within five
working days from the date of making of 'final orders' under/within the
meaning of proviso to Section 128(1)(b).
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17. Captioned WP stands disposed of in the aforesaid manner.
Consequently, captioned writ miscellaneous petition thereat is disposed
of as closed. There shall be no order as to costs.
(M.S., J.) (K.G.T., J.)
24.02.2024
cad
Index : Yes / No
Neutral Citation : Yes / No
Speaking order / Non-speaking order
https://www.mhc.tn.gov.in/judis
To:
1. The Secretary to Government
Municipal Administration
Fort St. George
Chennai 600 009
2. The Commissioner
Cuddalore Corporation
Cuddalore 607 001
3. The Commissioner of Police
Cuddalore Corporation
Cuddalore 607 001
4. The Collector
Cuddalore District
Cuddalore 607 001
https://www.mhc.tn.gov.in/judis
M.SUNDAR, J.
and
K. GOVINDARAJAN THILAKAVADI, J.
cad
24.02.2025
https://www.mhc.tn.gov.in/judis
