Madras High Court
Sundari vs The Regional Deputy Commissioner ... on 11 March, 2025
Author: M.Sundar
Bench: M.Sundar
W.P.No.8251 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.03.2025
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI
W.P.No.8251 of 2025
and
W.M.P. No.9261 of 2025 in W.P. No.8251 of 2025
Sundari ... Petitioner
Vs.
1.The Regional Deputy Commissioner (Central),
Greater Chennai Corporation,
Regional Office – Central,
No.36B, Pullah Avenue,
Shenoy Nagar, Chennai – 600 030.
2.The Executive Engineer,
Corporation of Chennai,
Zone No.7, Zonal Office,
Ambattur, Chennai – 600 053.
3.The District Collector,
Collectorate, Chennai District,
Chennai – 600 001.
4.The District Revenue Officer,
Singaravelan Maaligai,
Chennai – 600 001.
Page Nos.1/17
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W.P.No.8251 of 2025
5.The Revenue Divisional Officer,
Office of the Revenue Divisional Officer,
Ambattur Division, Anna Nagar,
Chennai – 600 040.
6.The Tahsildar,
Ambattur Taluk Office,
Ambattur, Chennai – 600 053.
7.The Commissioner,
Greater Chennai Corporation,
Rippon Building, Chennai – 600 003.
8.Vijayalakshmipuram Thittapaguthi
Kudiyurppu Manai Yrimaiyalagal Sangam
Reg. No.163/2017 rep. By its Secretary
R.Rajasekar, S/o.Raja Prabal,
No.13, Ambedkar Street,
Vijayalakshmipuram, Ambattur,
Chennai – 600 053. ... Respondents
(R7 and R8 impleaded suo motu vide
order dated 11.03.2025 in W.P.No.8251 of 2025)
Writ Petition filed under Article 226 of The Constitution of India
praying to issue a Writ of Certiorari to call for the records relating to
the notice dated 22.02.2025 in Z.O.7.C.No.00443/2025 issued by the
first respondent and quash the same.
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W.P.No.8251 of 2025
For Petitioner : Mr.Vijay Narayan,
Senior Counsel
for Mr.K.Rajasekaran
For Respondents : Mr.E.C.Ramesh,
Standing Counsel
for R1, R2 and R7
Mr.T.K.Saravanan,
Additional Government Pleader
for R3 to R6
Mr.C.Prakasam for R8
ORDER
[Order of the Court was made by M.SUNDAR, J.,]
The protagonist of the captioned main 'Writ Petition' (hereinafter
'WP' for the sake of brevity) has sought issue of a writ of certiorari. To
be noted, a notice dated 22.02.2025 bearing reference
Z.O.7.C.No.00443/2025 issued by R1 [Regional Deputy Commissioner
(Central), Greater Chennai Corporation, Chennai] has been assailed
in the captioned main WP. This '22.02.2025 notice bearing reference
Z.O.7.C.No.00443/2025 issued by R1' shall henceforth be referred to
as 'impugned notice' for the sake of convenience and clarity.
2. Mr.Vijay Narayan, learned senior counsel instructed by
Mr.K.Rajasekaran, learned counsel on record for writ petitioner
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adverting to the impugned notice submitted that the impugned notice
has been issued 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), it is wholly without jurisdiction as Section
128 vests only 'Commissioner' with powers to issue notice under Section
3. Issue notice.
4. Mr.E.C.Ramesh, learned standing counsel accepts notice for
R1 and R2 and Mr.T.K.Saravanan, learned Additional Government
Pleader accepts notice for R3 to R6.
5. Learned standing counsel for Greater Chennai Corporation
(GCC) who has accepted notice for R1 and R2 very fairly submitted
that Commissioner of GCC has not delegated his powers under Section
128 to R1 and in any event there is no provision under TNULB Act
enabling the Commissioner to delegate his powers much less his
powers under Section 128 of TNULB Act. This makes the legal drill at
hand fairly simple but from the submissions made at the bar, it comes
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to light that there is a tussle between the writ petitioner and an entity
which goes by the name 'Vijayalakshmipuram Thittapaguthi
Kudiyurppu Manai Yrimaiyalagal Sangam' (hereinafter 'said Sangam'
for the sake of convenience and clarity) and there are as many as six
earlier writ petitions all pertaining to such tussle.
6. We are concerned with two parcels of lands and they are: (a)
Survey Nos.150, 152, 153, 108/2, 148 and 154 (hereinafter 'I Parcel
of Land' for the sake of convenience and clarity) and (b) Survey
numbers presently Town Survey No.127/2 which was previously
Survey Nos.168/3E1 and 168/3F1 (hereinafter 'II Parcel of Land' for
the sake of convenience and clarity). To be noted, all the aforesaid
survey numbers are in Oragadam Village (Block No.43), Ambattur
Taluk, Chennai District.
7. This Court is informed that the I and II Parcels of Lands lie
adjacent to each other. While writ petitioner alleges that said Sangam
has encroached upon I Parcel of Land, which has been classified as
bjU (Street), said Sangam alleges that the writ petitioner has
encroached upon II Parcel of Land, which is classified as rhiy (Road).
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8. As alluded to supra, there are as many as six earlier writ
petitions and the details by way of a tabulation is as follows:
Sl. W.P.No. Writ Prayer Date and Nature
No. Petitioner of order
1 6195 of 2019 Ms.Sundari To mandamus the 18.03.2024 –
(writ petitioner official respondents Official respondents
before us) to conduct survey, were directed to
remove conduct survey,
encroachments as consider objections
regards I Parcel of if any, look into
Land revenue records,
identify
encroachers and
remove them within
a period of twelve
weeks.
2 25195 of 2022 Ms.Sundari Requesting for 19.09.2022 –
(writ petitioner change of enquiry enquiry officer was
before us) officer (RDO) directed to act in a
fair manner.
3 26960 of 2022 Said Sangam To remove alleged 18.03.2024 – official
encroachment by respondents were
Ms.Sundari in II directed to conduct
Parcel of Land survey in respect of
Government land,
identify
encroachment and
then remove the
same within a
period of twelve
weeks.
4 34492 of 2022 Ms.Sundari The proceedings 22.12.2022 – Writ
(writ petitioner dated 07.12.2022 petitioner relegated
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Sl. W.P.No. Writ Prayer Date and Nature
No. Petitioner of order
before us) made by to alternate remedy
jurisdictional RDO of filing revision
cancelling patta in before DRO.
favour of writ
petitioner assailed.
5 13100 of 2023 Said Sangam Order of DRO dated 18.03.2024 –
31.03.2023 bearing certiorari qua DRO
reference order neither issued
Na.Ka.No.J8/2876/ nor negatived.
2023 made in Official respondents
revision restoring were directed to
patta in favour of conduct survey,
Ms.Sundari is under look into
challenge. objections, revenue
records and remove
encroachment if
any within a period
of twelve weeks.
6 39805 of 2024 Ms.Sundari An initial notice 27.12.2024 – writ
(writ petitioner dated 19.12.2024 petition dismissed
before us) and a follow up
communication
dated 23.12.2024
from jurisdictional
Tahsildar assailed.
9. As already alluded to supra, captioned main WP is the 7th writ
petition and it has been filed assailing the impugned notice. As
captured supra, learned standing counsel for GCC has fairly submitted
that R1 does not have jurisdiction to issue the impugned notice.
Learned standing counsel for GCC has also submitted that the
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impugned notice will be withdrawn and a fresh notice by competent
authority viz., Commissioner of GCC will be issued within a fortnight
from today. This submission is recorded.
10. Be that as it may, before writing the operative portion of this
order, for the sake of convenience of all concerned and to ensure that
errors in notice/s to be issued do not creep in (as is the case now), we
deem it appropriate to set out the obtaining legal position more
particularly with regard to Section 128.
11. TNULB Act kicked in on and from 01.08.2000.
12. When TNULB Act kicked in on 01.08.2000, Section 128 read
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
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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.'
13. After coming into force on 01.08.2000, TNULB Act was
amended by 'Tamil Nadu Urban Local Bodies (Amendment) Act, 2024
[Act 24 of 2024]' which shall be referred to as 'I Amending Act'. This I
Amending Act consists of only two Sections, it came into force on
15.03.2024 and it did not amend Section 128 (to be noted, it amended
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only Section 3).
14. After 15.03.2024, there was a Second Amendment Act viz.,
Act 25 of 2024 which went by the title 'Tamil Nadu Urban Local Bodies
(Second Amendment) Act, 2024 [Act 25 of 2024]' (hereinafter II
Amending Act for the sake of convenience and clarity). This II
Amending Act consists of 38 Sections and it amends Section 2, Section
3, inserts Section 3A, amends Sections 32, 44, 78, 82, 83, 84, 97,
116, 117-B, 117-G, 117-L, 117-M, 117-O, 117-P, 117-S, 117-T, 118,
119, 120, 122, 128, 133, 135, 137, 145, 155, 161-A, 170, 173, 175,
194, 198, inserts Section 199-A and amends Section 200.
Of the aforementioned 38 Sections in the aforementioned
Second Amendment Act, sub-section (1) of Section 36 alone came into
force vide Section 1(2)(a) on and from 13.04.2023. The remaining
sections which form part of the conditional legislation regime vide
Section 1(2)(b) kicked in on and from 06.01.2025 when State
Government notified the other Sections.
15. The above means that Section 128 of TNULB Act which we
are concerned with has been amended on and with effect from
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06.01.2025. Amended Section 128 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
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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.'
16. Owing to the facts and circumstances of the case, we
implead the Commissioner, Greater Chennai Corporation, Rippon
Building, Chennai – 600 003 as R7 and Mr.E.C.Ramesh, learned
standing counsel for GCC accepts notice for R7 also. We also implead
Vijayalakshmipuram Thittapaguthi Kudiyurppu Manai Yrimaiyalagal
Sangam Reg. No.163/2017 rep. by its Secretary R.Rajasekar,
S/o.Raja Prabal, No.13, Ambedkar Street, Vijayalakshmipuram,
Ambattur, Chennai – 600 053 as R8 and Mr.C.Prakasam, learned
counsel present in Court accepts notice for R8.
17. We take up the main WP in the Admission Board with the
consent of learned counsel for all the parties.
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18. In the light of the narrative, discussion and in the light of
submissions of both sides which have been captured supra, the
following order is made:
18.1 The impugned notice being notice dated
dated 22.02.2025 bearing reference
Z.O.7.C.No.00443/2025 issued by R1 stands
withdrawn i.e., effaced in the light of the stated
position of learned standing counsel for GCC;
18.2 A fresh Show Cause Notice (SCN) under
Section 128(1)(b) of TNULB Act shall be issued by
the Commissioner of GCC within a fortnight from
today i.e., on or before 25.03.2025. In the
aforereferred fresh SCN, writ petitioner shall be the
noticee and R8/said Sangam shall be marked a copy;
18.3 The writ petitioner/noticee shall respond
to the SCN within 15 days from the date of receipt of
the show cause notice, if so advised and so desired;
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18.4 R8/said Sangam shall send a
representation qua fresh show cause notice, if so
advised and so desired;
18.5 Commissioner of GCC (R7) shall consider
the writ petitioner's response (if any) to fresh SCN
as well as representation of R8 (if any) and pass
'final orders' vide proviso to Section 128(1)(b) of
TNULB Act;
18.6 We have not expressed any view or
opinion as regards the allegations and counter
allegations qua encroachment. Therefore, R7/
Commissioner shall now consider the writ petitioner's
response (if any) to the fresh show cause notice and
representation of R8/said Sangam (if any) on its own
merits and in accordance with law;
18.7 The orders made by Commissioner of
GCC (R7) in the aforesaid manner shall be served on
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the writ petitioner as well as R8/said Sangam within
five working days from the date on which the order
is made.
19. Captioned WP is disposed of in the aforesaid manner.
Consequently, captioned Writ Miscellaneous Petition (WMP) thereat is
disposed of as closed. There shall be no order as to costs.
(M.S.,J.) (K.G.T.,J.)
11.03.2025
Index : Yes / No
Neutral Citation : Yes / No
mmi
P.S.: Though captioned WP is disposed of, list under the cause list
caption 'FOR COMPLIANCE' (regarding issue of fresh notice under Section
128(1)(b) of TNULB Act) on 02.04.2025.
To
1.The Regional Deputy Commissioner (Central),
Greater Chennai Corporation,
Regional Office – Central,
No.36B, Pullah Avenue,
Shenoy Nagar, Chennai – 600 030.
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2.The Executive Engineer,
Corporation of Chennai,
Zone No.7, Zonal Office,
Ambattur, Chennai – 600 053.
3.The District Collector,
Collectorate, Chennai District,
Chennai – 600 001.
4.The District Revenue Officer,
Singaravelan Maaligai,
Chennai – 600 001.
5.The Revenue Divisional Officer,
Office of the Revenue Divisional Officer,
Ambattur Division, Anna Nagar,
Chennai – 600 040.
6.The Tahsildar,
Ambattur Taluk Office,
Ambattur, Chennai – 600 053.
7.The Commissioner,
Greater Chennai Corporation,
Rippon Building, Chennai – 600 003.
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M.SUNDAR, J.,
and
K.GOVINDARAJAN THILAKAVADI, J.,
mmi
11.03.2025
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