Madras High Court
Nikhil Banthia vs Greater Chennai Corporation on 5 March, 2025
Author: M.Sundar
Bench: M.Sundar
W.P.No.7529 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.03.2025
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI
W.P.No.7529 of 2025
Nikhil Banthia ... Petitioner
Vs.
1.Greater Chennai Corporation
rep. By its Commissioner,
Ripon Building, Chennai – 600 003.
2.Greater Chennai Corporation
rep. By its Superintending Engineer
(Central), No.36 B, Pulla Avenue,
Shenoy Nagar, Chennai – 600 030. ... Respondents
Writ Petition filed under Article 226 of The Constitution of India
praying to issue a Writ of Mandamus forbearing the respondents from
in any way interfering with the petitioner's property at No.21/10,
V.V.Koil Street, Choolai, Chennai – 600 112 pending final determination
of the representation under Sec.128(b) dated 20.02.2025 submitted
pursuant to the notice of the 2nd respondent dated 12.02.2025 in
Page Nos.1/10
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W.P.No.7529 of 2025
Notice/No/zone-VI/Enc/Dn78/3884/2025 under Sec.128 of Tamil Nadu
Urban Local Bodies Act, 1998.
For Petitioner : Mr.D.S.Rajasekaran
for Mr.K.Sivasubramanian
For Respondents : Ms.E.Abinaya Lakshana
for Mr.E.C.Ramesh,
Standing Counsel
ORDER
[Order of the Court was made by M.SUNDAR, J.,]
Nucleus of the captioned main 'Writ Petition' (hereinafter 'WP' for
the sake of brevity) is a 'notice dated 12.02.2025 bearing reference
Notice/No/zone-VI/Enc/Dn78/3884/2025' (hereinafter 'said notice' for
the sake of convenience and clarity) and a scanned reproduction of the
same is as follows:
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2. Mr.D.S.Rajasekaran, learned counsel representing
Mr.K.Sivasubramanian, learned counsel on record for writ petitioner
adverting to the aforementioned notice submits that the writ
petitioner/noticee has sent a representation dated 20.02.2025 in
response to said notice and it is necessary that writ petitioner's
representation is considered and final orders are passed before any
coercive action is taken.
3. Issue notice.
4. Ms.E.Abinaya Lakshana, learned counsel representing
Mr.E.C.Ramesh, learned standing counsel for Greater Chennai
Corporation (GCC) accepts notice for both respondents.
5. Ms.E.Abinaya Lakshana, learned counsel for GCC is instructed
by Mr.M.Sivakumar, Junior Engineer, Zone 6, Unit 17, Division 78.
6. Adverting to said notice, we wanted to know from the learned
standing counsel for GCC as to whether the Commissioner of GCC has
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delegated the powers to Regional Deputy Commissioner Central and/or
other officers who have signed said notice. Learned standing counsel
for GCC on instructions submitted that there is no such delegation.
This submission is recorded.
7. We find that said notice is flawed, not in conformity with
statutory requirements and as a result wholly without jurisdiction. The
reasons are as follows:
7.1 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) 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
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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.'
7.2 A bare perusal of Section 128 of TNULB Act
brings to light that a notice under Section 128 can be
issued only by the 'Commissioner'. The term
'Commissioner' is defined vide sub-section (7) of Section 2
of TNULB Act and the same reads as follows:
'2. Definitions. - In this Act, unless the context otherwise
requires-
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(1) .................
(2) ................
(3) .................
(4) .................
(5) .................
(6) ................
(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; '
7.3 There is no disputation that in the case on hand
as it is GCC, Commissioner is within the meaning of
Section 2(7)(a) of TNULB Act.
7.4 As said notice has not been issued by the
authority who is empowered to do so under the statute
i.e., TNULB Act and as it is the stated position of learned
standing counsel for GCC that there is no delegation by the
Commissioner, said notice is wholly without jurisdiction.
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7.5 Section 128 more particularly Section 128(1)(b)
provides for a noticee being show caused vide notice
returnable in seven days. It is clear from the language in
which Section 128(1)(b) is couched but said notice gives
15 days time to the noticee to respond. This again is not in
conformity with the statute.
8. Faced with the above situation, learned standing counsel for
GCC submitted that said notice will be withdrawn and a fresh Show
Cause Notice (SCN) will be issued by the Commissioner. Learned
standing counsel submitted that this will be done as expeditiously as
the business of R1 would permit but in any event within a fortnight
from today i.e., on or before 19.03.2025.
9. We make it clear that we are not expressing any view or
opinion on the alleged encroachment and all questions are left open
qua both sides as regards fresh SCN to be issued by appropriate
authority and representation if any by the noticee.
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10. Captioned main WP is disposed of in the aforesaid manner.
There shall be no order as to costs.
(M.S.,J.) (K.G.T.,J.)
05.03.2025
Index : Yes / No
Neutral Citation : Yes / No
mmi
P.S.: Though captioned WP is disposed of, list under the cause list
caption 'ATR (ACTION TAKEN REPORT)' on 26.03.2025. It is made
clear that if the ATR does not demonstrate issue of notice by
appropriate authority, we may be constrained to requisition the
personal presence of the Commissioner.
To
1.The Commissioner,
Greater Chennai Corporation,
Ripon Building, Chennai – 600 003.
2.The Superintending Engineer (Central),
Greater Chennai Corporation,
No.36 B, Pulla Avenue,
Shenoy Nagar, Chennai – 600 030.
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M.SUNDAR, J.,
and
K.GOVINDARAJAN THILAKAVADI, J.,
mmi
05.03.2025
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