Madras High Court
M.Jothi vs The Commissioner on 2 January, 2025
Author: M.Sundar
Bench: M.Sundar
W.P.No.38868 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.01.2025
Coram
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MR.JUSTICE K.RAJASEKAR
W.P.No.38868 of 2024
&
W.M.P.No.42095 of 2024 in W.P.No.38868 of 2024
M.Jothi
W/o.P.Maithiazhagan .. Petitioner
vs
1. The Commissioner
Greater Chennai Corporation
Ripon Building
Chennai – 600 003
2. The Regional Deputy Commissioner (South)
Greater Chennai Corporation
No.115, Dr.Muthulakshmi Salai
Adyar, Chennai – 600 020
3. The Zonal Officer
Zone-11
Greater Chennai Corporation
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Page 1 of 14
W.P.No.38868 of 2024
Valasaravakkam
Chennai – 600 087
4. Tahsildhar
Nolambur
Ambattur Industrial Estate
Chennai – 600 037 ... Respondents
Petition filed under Article 226 of the Constitution of India
praying for issuance of a writ of certiorari calling for the records of the
impugned order made by the 2nd respondent in his proceedings Notice
No.Z.O.XI C.No.E1/3362/2024 dated 25.11.2024 under Section 128 of
Tamil Nadu Urban Local Bodies Act, 1998 and to quash the same.
For Petitioner : Mr.P.Dinesh Kumar
For Respondents : Mr.D.B.R.Prabhu
Standing counsel for R1 to R3
Mr.M.S.Arasakumar
Government Advocate for R4
ORDER
(Order of the Court was made by M.SUNDAR, J.)
Captioned main 'Writ Petition' ['WP' for the sake of brevity] has
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been filed assailing an order signed by R2 [Regional Deputy
Commissioner (South), Greater Chennai Corporation] on 25.11.2024 and
bearing reference Notice No.Z.O.XI.C.No.E1/3362/2024, which shall
hereinafter be referred to as 'impugned order' for the sake of convenience
and clarity.
2. To be noted, the impugned notice vide caption thereat says that
it has been issued under Section 128 of 'the Tamil Nadu Urban Local
Bodies Act, 1998 (Tamil Nadu Act 9 of 1999)' [hereinafter 'TNULB Act'
for the sake of brevity].
3. Mr.P.Dinesh Kumar, learned counsel for writ petitioner
adverting to Section 128, more particularly Sections 128(1)(b) and
Section 57 of TNULB Act submits that the impugned notice ought to
have been issued only by R1 and not by R2. This according to learned
counsel is a jurisdictional error.
4. Issue notice to respondents.
5. Mr.D.B.R.Prabhu, learned Standing Counsel accepts notice for
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R1 to R3 and Mr.Arasakumar, learned Government Advocate accepts
notice for R4.
6. Considering the limited scope of captioned main WP, main WP
is taken up in the Admission Board with the consent of both sides.
7. The impugned order has been made by R2 after issuing a 'show
cause notice' ['SCN' for the sake of brevity] being SCN dated 06.09.2024
bearing reference page k/m/11-3362-2024/ To this SCN, wherein writ
petitioner is a noticee, writ petitioner has shown cause vide a
communication dated 10.09.2024 which has been received by R3 on
10.09.2024.
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
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[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.'
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9. As regards Section 128, Commissioner is a defined term and it
has 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) .....
......
......
(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, Mr.D.B.R.Prabhu, learned Standing counsel for Chennai
Corporation points out that the equivalent of Section 128 of TNULB Act
is Section 222 of 'The Chennai City Municipal Corporation Act,
1919(Tamil Nadu Act IV of 1919)' [hereinafter 'CCMC Act' for the sake
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of brevity].
11. The short point is whether there was any delegation by R1 in
favour of R2 or any other Authority under Section 16 of CCMC Act. To
be noted, Section 16 of CCMC Act deals with delegation of Powers of
R1 and it makes it clear that there is no impediment in delegating power
under Section 222 of CCMC Act. As regards TNULB Act, it is a
conditional legislation vide sub-section (3) of Section 1 of TNULB Act,
which is dated 04.05.1999, but kicked in (came into force) only on
13.04.2023 vide notification.
12. As alluded to supra, TNULB Act is a conditional legislation.
Section 200 of TNULB Act is captioned 'Repeal and Saving' and we are
concerned with Section 200(1)(a) as well as Section 200(3)(c) and (e)
which read as follows:
'Section 200(1)(a)
200. Repeal and Saving.- (1) The following Acts are hereby
repealed, namely:-
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(a) the Chennai City Municipal Corporation Act, 1919
(Tamil Nadu Act IV of 1919);
.......
(z) ....'
'Section 200 (3)(c)(e)
200. Repeal and Saving.- (1) The following Acts are
hereby repealed, namely:-
(1)........
(2) .........
(3) Notwithstanding such repeal.-
(a) .....
(b) .....
(c) all rules, bye-laws, notifications, notice,
orders, directions or any other proceedings issued and schemes
framed and works sanctioned by the Government or the
municipality concerned immediately before the date of the
[commencement of the Tamil Nadu Urban Local Bodies
(Amendment) Act, 2022] shall so far as they are not inconsistent
with the provisions of the Act, continue to be in force and be
deemed to have been issued or framed or sanctioned under the
provisions of this Act until they are superseded or modified or
reissued under the provisions of this Act;'
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(d) .....
(e) all things done, made, instituted, executed and
appointed by the municipal corporations, municipalities, town
panchayats under the relevant Acts referred to in sub-section (1)
before the [commencement of the Tamil Nadu Urban Local
Bodies (Amendment) Act, 2022] shall be deemed to have been
done, made, instituted, executed or appointed, as the case may
be, by the municipal corporations, municipalities and town
panchayats deemed to have been constituted under the provisions
of this Act.'
13. If there had been delegation qua Section 222 of CCMC Act
under Section 16 of CCMC Act, the same may stand saved vide Section
200(3)(c) and (e) but we deem it appropriate to leave that question open
for the following reasons:
i) Whether there was delegation under CCMC Act is a
question to which answer is not readily available now;
ii) Whether such delegation would stand saved vide sub-
clauses (c) and (e) of Section 200(3) of TNULB Act is a
question which may need to be examined;
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iii) Most importantly, in this case, learned Standing
counsel for Corporation clearly submitted that respondents
would withdraw the SCN as well as the impugned order and
have the exercise redone by R1.
14. Therefore, leaving open the question of delegation either under
CCMC Act or under TNULB Act and also the question as to saving if
there is delegation under CCMC Act, we pass the following order:
i) SCN dated 06.09.2024 bearing reference k/m/11-
3362-2024 issued by R3 is set aside;
ii) impugned order signed by R2 on 25.11.2024 is set
aside;
iii) SCN and impugned order are set aside without
expressing any view or opinion on merits preserving all the
rights and contentions of all the parties concerned for denovo
exercise. In other words, SCN and impugned order are set
aside for the limited purpose of facilitating denovo exercise by
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R1;
iv) R1 will do well to issue a SCN as expeditiously as
the business of R1 would permit but in any event within one
week from today i.e., by 09.01.2025 and it will be open to the
noticee/writ petitioner to show-cause within seven days there
from i.e., by 16.01.2025 and if cause is shown, it will be open
to R1 to pass final orders thereat which shall be as
expeditiously as the business of R1 would permit but in any
event by 23.01.2025;
v) As the question regarding delegation and saving are
left open, we make it clear that this order will not serve as a
precedent in other cases and this is more so as this order is
based on the basis of fair stand taken by learned Standing
counsel for Chennai Corporation;
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Captioned WP is disposed of in the aforesaid manner.
Consequently, captioned WMP is disposed of as closed. There shall be
no order as to costs.
[M.S., J] [K.R.S., J]
02.01.2025
Index: Yes/No
Neutral Citation: Yes/No
Speaking order / Non-speaking order
gpa
P.S: Though captioned writ petition is disposed of, list under the
cause list caption 'FOR REPORTING COMPLIANCE' on
30.01.2025.
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To
1. The Commissioner
Greater Chennai Corporation
Ripon Building
Chennai – 600 003
2. The Regional Deputy Commissioner (South)
Greater Chennai Corporation
No.115, Dr.Muthulakshmi Salai
Adyar, Chennai – 600 020
3. The Zonal Officer
Zone-11
Greater Chennai Corporation
Valasaravakkam
Chennai – 600 087
4. Tahsildhar
Nolambur
Ambattur Industrial Estate
Chennai – 600 037
https://www.mhc.tn.gov.in/judis
M.SUNDAR,J.,
and
K.RAJASEKAR, J.,
gpa
02.01.2025
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