Madras High CourtWP/13627/2021disposed of

D.Dwaragesh v. The Commissioner

2021-08-02Honourable Mr Justice N. Kirubakaran,Honourable Mrs Justice T.V.Thamilselvi4 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 02.08.2021 CORAM :

THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN and THE HONOURABLE MRS.JUSTICE T.V.THAMILSELVI W.P. No. 13627 of 2021 and W.M.P. No. 14490 of 2021 D.Dwaragesh ... Petitioner Vs.

1. The Commissioner Corporation of Chennai Rippon Buildings Chennai - 600 003.

2. The Zonal Officer Zone-5, Corporation of Chennai Old Washermenpet, Chennai - 600 021.

3. The Assistant Revenue Officer Zone-5, Corporation of Chennai Old Washermenpet, Chennai - 600 021.

4. M/s. Jeans Park Rep. by its Managing Director Tameen Ansari @ Sankar Ganesh No.50/4, M.C.Road, Ground Floor Lakshmi Kalyan Complex Old Washermenpet, Chennai - 600 021.

5. The Inspector of Police H1 Police Station No.28, T.H.Road Old Washermenpet Chennai - 600 021.

... Respondents [R5 suo motu impleaded by this Court on 02.08.2021] PRAYER : Petition filed under Section Article 226 of the Constitution of India, praying for issuance of Writ of Mandamus, directing the Respondent authorities 1 to 3 to restrain the Fourth Respondent, from making encroachment all along the public platform outside his shop at No.50/4, M.C.Road, Ground Floor, Lakshmi Kalyan Complex, Old Washermenpet, Chennai - 600 021 based on Petitioner's representation dated 14.06.2021.

For Petitioner : Ms. S.Ambigai For Respondents: Mr. R.Gopinath (For R1 to R3) Mr. M.Vijayakumar (For R4) Mr. P.Balathandayutham Government Advocate (For R5)

ORDER

(Order of the Court was passed by N.KIRUBAKARAN, J) The matter was heard through ''Video Conference''. 2.

The Petitioner is the owner of commercial building, bearing Door No.50/4, M.C.Road, Ground Floor, Lakshmi Kalyan Complex, Old Washermenpet, Chennai - 600 021, consisting of 16 shops. The Fourth Respondent is one of the tenants in the subject property, who occupies the entrance of the building and extended his shop upto platform of M.C.Road by way of displaying his goods and articles thereby causing nuisance not only to general public but also to other other tenants of the subject property. Therefore, the Petitioner gave a representation dated 20.07.2019 and thereafter, filed a Writ Petition in W.P. No. 23791 of 2019, which was disposed on 12.02.2021 recording that the representation has been considered and encroachment has been removed. 3.

Although action has been taken and encroachment has been removed, again the Fourth Respondent encroached upon the pathway/entrance of the subject property and platform of M.C. Road causing nuisance not only to the general public but also to the other occupants /tenants of the subject property, which owned by the Petitioner. Therefore, the Petitioner made another representation on 14.06.2021 to the Official Respondent. Since no action has been taken, the Petitioner has come before this Court.

Heard Ms. S.Ambigai, Learned Counsel for the Petitioner, Mr. R.Gopinath, Learned Counsel appearing for the First to Third Respondents, Mr. M.Vijayakumar, Learned Counsel appearing for the Fourth Respondent, Mr. P.Balathandayutham, Learned State Government Counsel appearing for the newly impleaded Fifth Respondent, and perused the materials placed on record.

Ms. S.Ambigai, Learned Counsel for the Petitioner very strenuously argue that it is the usual practise of the Fourth Respondent to encroach upon the pathway as causing nuisance to the general public as well as the occupants of the subject property. Even after the removal of the encroachments pursuant to the filing of the earlier writ petition filed, again the Fourth Respondent has encroached upon the same

causing perennial problem to the occupants/tenants of the subject property. Therefore, the Petitioner has come before this Court.

Mr. R.Gopinath, Learned Counsel appearing for the First to Third Respondents that as per the earlier order passed by this Court on 06.07.2021, an inspection was conducted in the presence of the Petitioner as well as the Fourth Respondent and at the time of inspection, nothing was found in the pathway of the subject property as well as in the platform of M.C.Road.

However, Ms. S.Ambigai, Learned Counsel for the Petitioner that at the time of inspection, deliberately the Fourth Respondent has removed the encroachments made as if making it appears that the Fourth Respondent has not encroached upon the same.

Mr. M.Vijayakumar, Learned Counsel appearing for the Fourth Respondent submits that the Petitioner has filed this Writ Petition intending to cause disturbance to the Fourth Respondent and the Petitioner wants to get rid of the Fourth Respondent from the tenanted portion of the subject property and therefore, he prays for the Writ Petition should be dismissed.

Though Counter-Affidavit of the Fourth Respondent / Corporation states that there was no encroachment at the time of inspection, this Court take judicial note of the fact that those who are having business /shops at M.C. Road encroach the same affecting pedestrian/public pathway. As rightly pointed out by Ms. S.Ambigai, Learned Counsel for the Petitioner that at the time of inspection, the Fourth Respondent would have removed his goods/articles making it appears that no encroachments have been made. Hence, if it is found that there is an encroachment by any of the parties causing disturbance to general public by encroaching upon road/ water body / bridge / pathway, as stated under Section 431 of the Indian Penal Code, which is extracted as follows:- "431.

Mischief by injury to public road, bridge, river or channel:- Whoever commits mischief by doing any act which renders or which he knows to be likely to render any public road, bridge, navigable river or navigable channel, natural or artificial, impassable or less safe for travelling or conveying property, shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both."

The Corporation Officials shall remove encroachments and also give a police complaint under Section 431 of the Indian Penal Code to the jurisdictional Police and jurisdictional Police authorities are directed to take action, as and when complaint is received, so that mischievous encroachment would not be repeated by any of the parties and injury to public road/water

channel/bridge would not be tolerated. In view of that, this Court suo motu impleads the Inspector of Police, H1 Police Station, No.28, T.H.Road, Old Washermenpet, Chennai - 600 021 as Fifth Respondent in this Writ Petition and Mr. P.Balathandayutham, Learned State Government Counsel takes notice on behalf of the newly impleaded Fifth Respondent. It is made clear that not only at the instance of the Corporation Officials, but also at the instance of persons, who are aggrieved by any encroachment, a complaint under Section 431 of the Indian Penal Code can be given to jurisdictional Police, who in turn would take appropriate action on such complaint.

10.

With the above directions, this Writ Petition is disposed of. Consequently, connected Miscellaneous Petition is closed. No costs.

Sd/- Assistant Registrar(CS) //True Copy// Sub Assistant Registrar Maya To

1. The Commissioner Corporation of Chennai Rippon Buildings Chennai - 600 003.

2. The Zonal Officer Zone-5, Corporation of Chennai Old Washermenpet, Chennai - 600 021.

3. The Assistant Revenue Officer Zone-5, Corporation of Chennai Old Washermenpet, Chennai - 600 021.

4. The Inspector of Police H1 Police Station No.28, T.H.Road Old Washermenpet Chennai - 600 021.

+1cc to Mr.Vijaya kumar , Advocate SR.No. 38111 +1cc to Mr.R.Gopinath, Advocate SR.No. 37451 +1 cc to Government Pleader Sr.No. 37707 W.P. No. 13627 of 2021 (CO) A.SK(20.09.2021)