Madras High Court
G.Venkatkumar vs The Commissioner on 27 June, 2025
Author: M.Sundar
Bench: M.Sundar
W.P.No.22596 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.06.2025
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MR.JUSTICE HEMANT CHANDANGOUDAR
W.P.No.22596 of 2024
and
W.M.P.No.24620 of 2024
G.Venkatkumar
S/o.Govindaraj ... Petitioner
vs.
1. The Commissioner
Maraimalaingar Municipality
Maraimalainagar
Chengalpattu District.
2. D.Maran
S/o.Devaraj ... Respondents
Writ Petition filed under Article 226 of the Constitution of India
seeking a Writ of Certiorari, calling for the records relating to the order
passed by the first respondent in Na.Ka.No.2383/2024/F1-1 dated
16.07.2024 and quash the same.
Page Nos.1/10
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W.P.No.22596 of 2024
For Petitioner : Mr.G.Mageshkumar
For Respondents : Mr.T.K.Saravanan
Additional Government Pleader,
representing Mr.K.Tippu Sultan, for R1
R2 - Served - No Appearance
*****
ORDER
[Order of the Court was made by M.SUNDAR J.]
Captioned main 'Writ Petition' {hereinafter 'WP' for the sake of
brevity} has been filed assailing a 'notice dated 16.07.2024 bearing
reference Na.Ka.No.2383/2024/F1-1 issued by R1' {hereinafter 'impugned
notice' for the sake of brevity}.
2. Mr.G.Magesh Kumar, learned counsel on record for writ petitioner,
who is before us drew our attention to the aforementioned impugned notice
and a scanned reproduction of the same as placed before us is as follows:
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3. Notwithstanding very many grounds and myriad averments in the
support writ affidavit, learned counsel for writ petitioner predicated his
campaign against the impugned notice on one point and that one point is,
the impugned notice directly calls upon the noticee (writ petitioner) to
remove what according to R1 is an encroachment without show causing the
writ petitioner.
4. Mr.T.K.Saravanan, learned Additional Government Pleader for R1
is before us.
5. Learned State counsel submits, on instructions, that the impugned
notice has been issued under Section 128 of 'Tamil Nadu Urban Local
Bodies Act, 1998 (Tamil Nadu Act 9 of 1999)' {hereinafter 'TNULB Act' for
the sake of brevity}.
6. Learned counsel for writ petitioner submits that the impugned
notice was affixed in the premises which according to R1 is offending
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construction on 22.07.2024 and writ petitioner noticee has sent a response
dated 27.07.2024 through his counsel. 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, 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:
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.'
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7. There is no disputation that the alleged offending construction is an
'immovable structure' and therefore, Section 128(1)(b) of TNULB Act
together with proviso thereat comes into play.
8. In the light of the narrative thus far, we find that the captioned main
WP stands vastly descoped. In other words, legal perimeter within which
the captioned main WP should now perambulate has dwindled vastly.
Therefore, with the consent of learned counsel on both sides, main WP was
taken up. We find that R2 has been served, name of R2 together with full
address is duly shown in the cause list but there is no representation. Cause
list shows that R2 has entered appearance through counsel [Mr.R.Mani
Barathi] whose name is shown in the cause list but with remark (Vakalat
returned). A scanned reproduction of the cause list is as follows:
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9. We make it clear that all rights and contentions of R2 will remain
preserved about which there is allusion again infra. Be that as it may,
proviso to Section 128(1)(b) of TNULB Act uses the expression 'any
representation'. Therefore, we make it clear that if R2 chooses to send any
representation within 15 days from today i.e., on or before 11.07.2025, the
same also shall be considered by R1 before making final orders vide proviso
to Section 128(1)(b) of TNULB Act.
10. Reverting to the lone point on which the campaign against the
impugned notice is predicated, as the writ petitioner has responded to the
impugned notice, we deem it appropriate to say that 'impugned notice' shall
be treated as 'Show Cause Notice' {'SCN'} and response of writ petitioner
dated 27.07.2024 shall be treated as cause shown. This satisfies the
requirement under Section 128(1)(b) of TNULB Act. Likewise, R2 shall be
favoured with a copy of impugned notice forthwith and if R2 sends any
representation within the specified fifteen days window i.e., within fifteen
days, the same shall be considered by R1 before making final orders which
is in tune with proviso to Section 128(1)(b) of TNULB Act. In this regard,
all questions are left open and all rights and contentions of R2 are preserved
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for sending a representation. This aspect of the order covers the requirement
under Section 128(1)(b) of TNULB Act and also puts in a safety valve qua
R2 (private respondent), who is not before us. To be noted, there is an
allusion about the safety valve supra.
11. In the light of the narrative thus far, as impugned notice is now
treated as SCN and SCN has been responded to i.e., cause shown by writ
petitioner vide 27.07.2024 communication through his counsel, R1 shall
proceed in accordance with law and on the merits of the matter i.e., on the
basis of the merits of the cause shown with a rider that representation, if any,
from R2 shall be considered vide proviso to Section 128(1)(b) of TNULB
Act and proceedings shall be concluded as expeditiously as the official
business of R1 would permit. We make it clear that when we say that the
proceedings shall be concluded, it includes either dropping proceedings
accepting cause shown or carrying the matter to its logical end of removal of
encroachment and as we have not expressed any view or opinion on the
merits of the matter, it would be solely on the merits of the writ petitioner's
response to SCN and in accordance with law. For this purpose, all rights
and contentions of both sides, (including R2 as already alluded to supra) are
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left open and all questions are left open. All rights are preserved in this
regard.
Captioned WP disposed of in the aforementioned manner with
observations set out supra and with preservation of rights in the
aforementioned manner. Consequently, captioned Writ Miscellaneous
Petition is disposed of as closed. There shall be no order as to costs.
(M.S.J.,) (H.C.J.,)
27.06.2025
Index : Yes / No
Neutral Citation : Yes / No
Speaking / Non-speaking
mk
To
The Commissioner
Maraimalaingar Municipality
Maraimalainagar
Chengalpattu District.
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M.SUNDAR, J.,
and
HEMANT CHANDANGOUDAR, J.,
mk
27.06.2025
(2/2)
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