Madras High CourtWP/18862/2024disposed of

A.Palanisamy v. The Collector

2024-07-11Honourable Mr Justice M. Sundar,Honourable Mrs Justice K. Govindarajan Thilakavadi47 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 11.07.2024

CORAM

THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI W.P.Nos.18862, 18866, 18871, 18872, 18876, 18878, 18879, 18881, 18883 and 18884 of 2024 and W.M.P. Nos.20701, 20704, 20709, 20712, 20717, 20721, 20723, 20725, 20728 and 20733 of 2024 in W.P.Nos.18862, 18866, 18871, 18872, 18876, 18878, 18879, 18881, 18883 and 18884 of 2024 A.Palanisamy ... Petitioner in W.P. No.18862 of 2024 M.Perumal ... Petitioner in W.P. No.18866 of 2024 M.Venkatesan ... Petitioner in W.P. No.18871 of 2024 M.Chinnaponnu ... Petitioner in W.P. No.18872 of 2024 S.Murugan ... Petitioner in W.P. No.18876 of 2024 M.Murugan ... Petitioner in W.P. No.18878 of 2024 Page Nos.1/47

V.Mahendran ... Petitioner in W.P. No.18879 of 2024 P.Patchamuthu ... Petitioner in W.P. No.18881 of 2024 N.Manoharan ... Petitioner in W.P. No.18883 of 2024 V.Amsa ... Petitioner in W.P. No.18884 of 2024 Vs.

1.The Collector, O/o. The District Collector, Salem - 636 001.

2.The Revenue Divisional Officer, Mettur Dam - 1, Salem District.

3.The Assistant Director, Town Panchayat, O/o.The District Collector, Salem - 636 001.

4.The Tahsildar, Mettur Taluk, Salem District, 5, The Mecheri Town Panchayat, Mecheri, Salem District.

5.The Executive Officer, Mecheri Special Grade Town Panchayat, Mecheri, Salem District.

6.G.Thamizhizhanjeliyan ... Respondents in all W.Ps Page Nos.2/47

Writ Petitions filed under Article 226 of The Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for the records relating to Na.Ka.No.01/2024 dated 13.06.2024 issued by the 5th respondent, quash the same, consequently direct the respondents 1 to 3 to provide house site patta to the petitioners in Survey No.229/1 situated at Mecheri Special Grade Town Panchayath, Alaghagounder, Salem District in the light of the Government Order in Revenue & Disaster Management Department in G.O.Ms.No.318 dated 30.08.2019 within the time period stipulated by this Court. For Petitioner :

Mr.T.Dharani in all W.Ps For Respondents :

Mr.P.Balathandayutham, Spl. Govt. Pleader for R1 to R5 in all W.Ps COMMON ORDER [Order of the Court was made by M.SUNDAR, J.,] When the captioned matters were taken up in the Admission Board, Mr.T.Dharani, learned counsel for writ petitioners submitted Page Nos.3/47

that captioned WPS are directly and squarely covered by a common order dated 02.07.2024 in 9 writ petitions [W.P.No.17402 of 2024 etc., (S.Gopalan and Others)].

2. Issue notice to official respondents.

3. Mr.P.Balathandayutham, learned Special Government Pleader accepts notice for respondents 1 to 5 and learned Special Government Pleader also submitted that the captioned WPs are similar to S.Gopalan and 8 others case.

4. In the aforementioned scenario, we take up the main WPs with the consent of both sides and as would be evident from S.Gopalan's case order, we would be putting in a safety valve for R6 (private respondent) who is not before us.

5. Order dated 02.07.2024 by which captioned 10 WPs are covered reads as follows:

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 02.07.2024

CORAM

THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI W.P.Nos.17402, 17406, 17411, 17412, 17413, 17415, 17418, 17421 & 17423 of 2024 and W.M.P.Nos.19173, 19177, 19180, 19187, 19182, 19186, 19196, 19201 & 19205 of 2024 in W.P.Nos.17402, 17406, 17411, 17412, 17413, 17415, 17418, 17421 & 17423 of 2024 W.P.No.17402 of 2024 S.Gopalan S/o.Sadaiyan ... petitioner Vs.

The Collector O/o. The District Collector Salem - 636 001.

The Revenue Divisional Officer Mettur Dam-1 Salem District.

The Assistant Director Town Panchayat O/o. The District Collector Salem - 636 001.

The Tahsildar Mettur Taluk, Salem District

5. The Mecheri Town Panchayat Mecheri, Salem District.

The Executive Officer Page Nos.5/47

Mecheri Special Grade Town Panchayat at Mecheri, Salem District.

G.Thamizhizhanjeliyan S/o.Gopal ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the records relating to Na.Ka.No.01/2024 dated 13.06.2024 issued by the 5th respondent, quash the same and consequently, direct the respondents 1 to 3 to provide house site patta to the petitioner in Survey No.229/1 situate in Mecheri Special Grade Town Panchayat, Alaghagounder, Salem District in the light of the Government Order in Revenue Department in G.O.Ms.No.318 dated 30.08.2019 within the time period.

For Petitioner in all WPs :

Mr.T.Dharani For Respondents in all WPs :

Mr.P.Balathandayutham Special Government Pleader C O M M O N O R D E R [Order of the Court was made by M.SUNDAR, J.,] This common order will now govern the captioned 9 'Writ Petitions' {hereinafter 'WPs' for the sake of brevity, convenience and clarity} and captioned 9 'Writ Miscellaneous Petitions' {hereinafter 'WMPs' for the sake of brevity, convenience and clarity} thereat.

2. We are making a common order as the factual matrix is common and lands in Page Nos.6/47

question i.e., lands which are the subject matter of impugned notices issued by R5 (the Executive Officer, Mecheri Special Grade Town Panchayat at Mecheri, Salem District) are the same.

3. Writ petitioners in the captioned 9 WPs are noticees qua impugned notices except W.P.No.17418 of 2024, wherein writ petitioner is Mr.M.Gopal, Son of Mr.Mottaiyan and noticee is Mr.Mathaiyan, Son of Mr.Perumal. As regards short facts shorn of elaboration, 'lands comprised in S.Nos.228/1 and 299/1 are situate in Ward No.04, Azhagaagoundanoor {mHfhft[z;lDhh;}, Macheri Village, Salem District (to be noted, situate in Macheri Special Grade Town Panchayat - nkr;nrhp rpwg;g[epiy ngU:uhl;rp. nryk; khtl;lk;)' {hereinafter 'said lands' for the sake of brevity, convenience and clarity}.

4. R5 has issued '9 notices all dated 13.06.2024' {hereinafter 'impugned notices' for the sake of brevity, convenience and clarity} making writ petitioners as noticees (with the exception of W.P.No.17418 of 2024 wherein writ petitioner is Mr.M.Gopal, Son of Mr.Mottaiyan and noticee is Mr.Mathaiyan, Son of Mr.Perumal) and scanned reproduction of these 9 notices are as follows: Impugned notice in W.P.No.17402 of 2024:

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Impugned notice in W.P.No.17406 of 2024:

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Impugned notice in W.P.No.17411 of 2024:

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Impugned notice in W.P.No.17412 of 2024:

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Impugned notice in W.P.No.17413 of 2024:

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Impugned notice in W.P.No.17415 of 2024:

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Impugned notice in W.P.No.17418 of 2024:

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Impugned notice in W.P.No.17421 of 2024:

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Impugned notice in W.P.No.17423 of 2024:

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5. Mr.T.Dharani, learned counsel on record for writ petitioner submits that a part of said lands i.e., lands comprised in S.No.229/1 are Grama Natham and that writ petitioners are entitled to patta.

6. Issue notice to official respondents i.e., issue notice regarding admission.

7. Mr.P.Balathandayutham, learned Special Government Pleader accepts notice for R1 to R5.

8. Learned State counsel points out that said lands have been classified as 'Pathai' (ghij) and therefore the contention of writ petitioners that they are entitled to patta at least for a portion of said lands qua S.No.229/1 is incorrect. We refrain from expressing any view or opinion on this rival contention / contention to the contrary as we would now be directing R5 to treat impugned notices as 'Show Cause Notices' {hereinafter 'SCNs' in plural and 'SCN' in singular for the sake of brevity, convenience and clarity} so that writ petitioners can respond within seven days from Page Nos.16/47

today (to be noted, this is in the light of the language in which Section 128(1)(b) of 'the Tamil Nadu Urban Local Bodies Act, 1998' {hereinafter 'TNULB Act' for the sake of brevity} is couched). In other words, all questions are left open.

9. Section 128 of TNULB Act in its entirety 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 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]:

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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.'

10. A careful perusal of Section 128 of TNULB Act makes it clear that the Statute vests the power qua Section 128 in 'Commissioner'. 'Commissioner' 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) .................

(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; '

11. In the case on hand, as already alluded to supra, said lands are situate in a Town Panchayat i.e., Special Grade Town Panchayat. Therefore, in the light of Section 2(7)(b) of TNULB Act 'Commissioner' as occurring in Section 128 of TNULB Act would be R5.

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12. We also find that SCNs advert to an order dated 20.02.2024 made in W.P.No.3984 of 2024 by another Hon'ble Division Bench. We find that the other Hon'ble Division Bench has made it clear that it is not required to pass any order in the writ petition. This is clear from paragraph No.3 of order dated 20.02.2024 made in W.P.No.3984 of 2024 and a scanned reproduction of the entire order is as follows: Page Nos.19/47

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13. Therefore, the impugned notices will now be treated as SCNs under Section 128(1)(b) of TNULB Act and it will be dealt with on its own merits i.e., merits of responses and in accordance with law, untrammeled by any observation/s in this order as well as the earlier order wherein, Hon'ble Division Bench has made it clear that it is not required to pass any order.

14. In the light of the narrative thus far, we find that legal perimeter within which the captioned matters now perambulate has shrunk largely and therefore, with the consent of learned counsel on both sides, captioned 9 main WPs were taken up in the Admission Board. We are acutely conscious that R6 (private respondent) is not before us. Therefore, we make it clear that when writ petitioners respond to SCNs, representations dated 06.02.2023 and 02.08.2023 sent by R6 shall also be considered. To be noted, this is in the light of proviso to Section 128(1)(b) of TNULB Act which says that any representation qua SCN (within time limit thereat) shall also be considered before passing final orders. To be noted, reference to 06.02.2023 and 02.08.2023 representations are there in the prayer part of order dated 20.02.

2024 made by another Hon'ble Division Bench in W.P.No.3984 of 2024. As seven days time limit is construed from today, these two representations from R6 shall also be construed to have been received within the same time limit. This protects and preserves the rights of R6 and therefore, we have put in a safety valve qua R6 who is not before us and this facilitates disposal of main WPs.

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15. In the light of the narrative, discussion and dispositive reasoning set out supra, we make the following order:

(i) 9 impugned notices being notices dated 13.06.2024 bearing reference Na.Ka.No.01/2024 shall now be treated as SCNs within the meaning of Section 128(1)(b) of TNULB Act;

(ii) 9 noticees and noticee and / or writ petitioner in W.P.No.17418 of 2024 shall now respond to SCNs within seven days from today i.e., by 09.07.2024;

(iii) R5 shall consider representations sent by R6 (representations dated 06.02.2023 and 02.08.2023) before making final orders and this is vide proviso to Section 128(1)(b) of TNULB Act as already alluded to supra;

(iv) Depending on the outcome qua aforementioned drill before R5, proceedings shall either be dropped or carried to its logical end i.e., removal of encroachment, if that be so.

Captioned 9 WPs are disposed of in the aforesaid manner with the aforementioned directives. Consequently, captioned 9 WMPs are also disposed of as closed. There shall be no order as to costs. (M.S.,J.) (K.G.T.,J.) 02.07.2024 Index : Yes / No Speaking mk P.S. I: Upload forthwith P.S.II : All concerned including the Registry of Madras High Court to act forthwith on the uploaded soft copy of this proceedings as uploaded in the official website of this Court. To be noted, the soft copies uploaded in the official website of this Court are water marked, besides being QR Coded.

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6. In the light of the aforementioned undisputed position captioned 10 Wps and captioned 10 Writ Miscellaneous Petitions (WMPs) thereat will also now stand disposed of vide the following order.

7. This common order will now govern the captioned 10 'Writ Petitions' {hereinafter 'WPs' for the sake of brevity, convenience and clarity} and captioned 10 'Writ Miscellaneous Petitions' {hereinafter 'WMPs' for the sake of brevity, convenience and clarity} thereat.

8. We are making a common order as the factual matrix is common and lands in question i.e., lands which are the subject matter of impugned notices issued by R5 (the Executive Officer, Mecheri Special Grade Town Panchayat, Mecheri, Salem District) are the same.

9. To be noted, in one of the captioned 10 WPs viz., W.P.No.18872 of 2024, in the impugned notice, the noticee is Mr.Maadhaiyan, S/o.Mr.Perumal but the writ petitioner is Maadhaiyan's wife Ms.M.Chinnaponnu. Therefore, there will be a suitable directive in Page Nos.24/47

this regard in the operative portion of this order infra. As regards short facts shorn of elaboration, 'lands comprised in S.No.229/1 are situate in Ward No.04, Azhagaagoundanoor {mHfhft[z;lDhh;}, Mecheri Village, Salem District (to be noted, situate in Mecheri Special Grade Town Panchayat - nkr;nrhp rpwg;g[epiy ngU:uhl;rp. nryk; khtl;lk)' {hereinafter 'said lands' for the sake of brevity, convenience and clarity} is nucleus of the cases at hand.

10. R5 has issued '10 notices all dated 13.06.2024' {hereinafter 'impugned notices' for the sake of brevity, convenience and clarity} making writ petitioners as noticees (with the exception of W.P.No.18872 of 2024 wherein writ petitioner is Ms.M.Chinnaponnu, Wife of Mr.Maadhaiyan and noticee is Mr.Maadhaiyan, Son of Mr.Perumal) and scanned reproduction of these 10 notices are as follows:

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Impugned notice in W.P.No.18862 of 2024:

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Impugned notice in W.P.No.18866 of 2024:

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Impugned notice in W.P.No.18871 of 2024:

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Impugned notice in W.P.No.18872 of 2024:

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Impugned notice in W.P.No.18876 of 2024:

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Impugned notice in W.P.No.18878 of 2024:

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Impugned notice in W.P.No.18879 of 2024:

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Impugned notice in W.P.No.18881 of 2024:

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Impugned notice in W.P.No.18883 of 2024:

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Impugned notice in W.P.No.18884 of 2024:

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11. Mr.T.Dharani, learned counsel on record for writ petitioner submits that a part of said lands i.e., lands comprised in S.No.229/1 are Grama Natham and that writ petitioners are entitled to patta.

12. Learned State counsel points out that said lands have been classified as 'Pathai' (ghij) and therefore the contention of writ petitioners that they are entitled to patta at least for a portion of said lands qua S.No.229/1 is incorrect. We refrain from expressing any view or opinion on this rival contention / contention to the contrary as we would now be directing R5 to treat impugned notices as 'Show Cause Notices' {hereinafter 'SCNs' in plural and 'SCN' in singular for the sake of brevity, convenience and clarity} so that writ petitioners can respond within seven days from today (to be noted, this is in the light of the language in which Section 128(1)(b) of 'The Tamil Nadu Urban Local Bodies Act, 1998' {hereinafter 'TNULB Act' for the sake of brevity} is couched). In other words, all questions are left open. Page Nos.36/47

13. Section 128 of TNULB Act in its entirety 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;

Provided that the Commissioner shall consider any representation received within the time limit, before passing final orders.

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.'

14. A careful perusal of Section 128 of TNULB Act makes it clear that the Statute vests the power qua Section 128 in 'Commissioner'. 'Commissioner' 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) .................

(2) .................

(3) .................

(4) .................

(5) .................

(6) ..................

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15. In the case on hand, as already alluded to supra, said lands are situate in a Town Panchayat i.e., Special Grade Town Panchayat. Therefore, in the light of Section 2(7)(b) of TNULB Act 'Commissioner' as occurring in Section 128 of TNULB Act would be R5.

16. We also find that SCNs advert to an order dated 20.02.2024 made in W.P.No.3984 of 2024 by another Hon'ble Division Bench. We find that the other Hon'ble Division Bench has made it clear that it is not required to pass any order in the writ petition. This is clear from paragraph No.3 of order dated 20.02.2024 made in W.P.No.3984 of 2024 and a scanned reproduction of the entire order is as follows: Page Nos.39/47

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17. Therefore, the impugned notices will now be treated as SCNs under Section 128(1)(b) of TNULB Act and it will be dealt with on its own merits i.e., merits of responses and in accordance with law, untrammeled by any observation/s in this order as well as the earlier order wherein, Hon'ble Division Bench has made it clear that it is not required to pass any order.

18. In the light of the narrative thus far, we find that legal perimeter within which the captioned matters now perambulate has shrunk largely and therefore, with the consent of learned counsel on both sides, captioned 10 main WPs were taken up in the Admission Board. We are acutely conscious that R6 (private respondent) is not before us. Therefore, we make it clear that when writ petitioners respond to SCNs, representations dated 06.02.2023 and 02.08.2023 sent by R6 shall also be considered. To be noted, this is in the light of proviso to Section 128(1)(b) of TNULB Act which says that any representation qua SCN (within time limit thereat) shall also be considered before passing final orders. To be noted, reference to 06.02.2023 and 02.08.2023 representations are there in the prayer part of order dated 20.02.2024 made by another Hon'ble Division Page Nos.43/47

Bench in W.P.No.3984 of 2024. As seven days time limit is construed from today, these two representations from R6 shall also be construed to have been received within the same time limit. This protects and preserves the rights of R6 and therefore, we have put in a safety valve qua R6 who is not before us and this facilitates disposal of main WPs.

19. In the light of the narrative, discussion and dispositive reasoning set out supra, we make the following order: (i) 10 impugned notices being notices dated 13.06.2024 bearing reference Na.Ka.No.01/2024 shall now be treated as SCNs within the meaning of Section 128(1)(b) of TNULB Act;

(ii) 10 noticees and noticee and / or writ petitioner in W.P.No.18872 of 2024 shall now respond to SCNs within seven days from today i.e., by 18.07.2024;

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(iv) Depending on the outcome qua aforementioned drill before R5, proceedings shall either be dropped or carried to its logical end i.e., removal of encroachment, if that be so.

20. Captioned 10 WPs are disposed of in the aforesaid manner with the aforementioned directives. Consequently, captioned 10 WMPs thereat are also disposed of as closed. There shall be no order as to costs.

(M.S.,J.) (K.G.T.,J.) 11.07.2024 Index : Yes / No mmi P.S. I: Upload forthwith P.S.II : All concerned including the Registry of Madras High Court to act forthwith on the uploaded soft copy of this proceedings as uploaded in the official website of this Court. To be noted, the soft copies uploaded in the official website of this Court are water marked, besides being QR Coded.

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To 1.The Collector, O/o. The District Collector, Salem - 636 001.

2.The Revenue Divisional Officer, Mettur Dam - 1, Salem District.

3.The Assistant Director, Town Panchayat, O/o.The District Collector, Salem - 636 001.

4.The Tahsildar, Mettur Taluk, Salem District, 5, The Mecheri Town Panchayat, Mecheri, Salem District.

5.The Executive Officer, Mecheri Special Grade Town Panchayat, Mecheri, Salem District.

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M.SUNDAR, J., and K.GOVINDARAJAN THILAKAVADI, J., mmi 11.07.2024 Page Nos.47/47