V.Preethi v. The Commissioner
2024:MHC:2956
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :30.07.2024
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI & W.M.P.No.22686 of 2024 in W.P.No.20745 of 2024 Mrs.V.Preethi ... Petitioner Vs.
1. The Commissioner Arni Municipality Arni Town, Arni Thiruvannamalai District 2.The District Collector Thiruvannamalai District Thiruvannamalai
3. The District Inspector of Survey Thiruvannamalai District Thiruvannamalai Page Nos.1/13
4. The Executive Engineer Public Works Department Arni Thiruvannamalai District
5. N.Damodaran
6. Mr.N.Sunderraj ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for the records pertaining to the order passed in proceedings vide Na.Ka.No.1034/2022/F1 dated 20.06.2024 on the file of the 1st respondent and quash the same by directing the 3rd respondent to undertake survey of the lands comprised in T.S.No.35/14 located in Arni Town, Ward-C, Block No.2 as per the land survey records so maintained in the Survey Department and in the 1st respondent Municipality and note down the features of existing nature of structures and buildings and Vellore road covered in T.S.No.35/14 for locating the exact extent of the land being under occupation by unauthorized encroachment for action being taken thereon in accordance with the law by the respondents 1 and 2 besides forbearing the respondents 1 and 2 from dispossessing the petitioner and petitioner's family members without adopting due process of law.
For Petitioner :
Mr.R.Natarajan For Respondents :
Mr.P.Balathandayutham Spl.Govt.Pleader for R1 to R4
O R D E R
[Order of the Court was made by M.SUNDAR, J.,] Captioned main 'Writ Petition' ['WP' for the sake of brevity] has been filed inter alia assailing a notice dated 20.06.2024 bearing reference Page Nos.2/13
e/f/vz;.1034/2022/vg;1 issued by R1 [The Commissioner, Arni Municipality, Arni Town, Arni, Thiruvannamalai District] and a scanned reproduction of this notice is as follows:
Page Nos.3/13
2. The aforementioned 'notice issued by R1' shall hereinafter be referred to as 'impugned notice' for the sake of convenience and clarity.
3. Mr.R.Natarajan, learned counsel for writ petitioner points out that an earlier writ petition being W.P.No.1331 of 2024 was filed by one N.Damodaran inter alia seeking a mandamus to remove what according to him is encroachment made by R7 thereat. Learned counsel pointed out that R7 in W.P.No.1331 of 2024 is one Mr.P.N.M Venkatesh Babu, who is spouse of writ petitioner [Ms.V.Preethi]. Learned counsel submits that W.P.No.1331 of 2024 came to be disposed of by another Hon'ble Division Bench on 22.03.2024 by an order which reads as follows: Page Nos.4/13
Page Nos.5/13
Page Nos.6/13
4. Learned counsel submits that R7 was not before the Court and the earlier writ petition came to be disposed of in the Admission Board.
5. Pursuant to the aforementioned earlier order, R1 issued a notice dated 03.06.2024 to Thiru.P.N.M.Venkatesh Babu and there are two replies dated 07.06.2024 and 13.06.2024 from the writ petitioner. Learned counsel points out that Thiru.P.N.M.Venkatesh Babu is not of sound mind but it may not be necessary to go in that aspect of the matter as aforementioned Page Nos.7/13
impugned notice (20.06.2024 notice) which is assailed in the captioned WP has been now issued to the writ petitioner [Ms.V.Preethi].
6. Issue notice to the official respondents i.e., issue notice regarding admission.
7. Mr.P.Balathandayutham, learned Special Government Pleader accepts notice for R1 to R4.
8. Learned State counsel submits that the impugned notice dated 20.06.2024 issued by R1 is one under Section 128 of 'the Tamil Nadu Urban Local Bodies Act, 1998 (Tamil Nadu Act 9 of 1999)' [hereinafter 'TNULB Act' for the sake of brevity]. This dwindles the scope of the captioned writ petition vastly and therefore, with the consent of learned counsel on both sides, main WP is taken up and heard out in the Admission Board.
9. We are acutely conscious that R5 and R6 are not before this Court. To be noted, R5 [ N.Damodaran ] is writ petitioner in the earlier WP being W.P.No.1331 of 2024 but we will be putting in a safety valve as regards R5 and R6 as we are taking up the main WP in the Admission Board. Page Nos.8/13
10. As regards Section 128 of TNULB Act, the same 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 form the date of receipt thereof:
Provided that the Commissioner shall consider any representation received within the time limit, before passing final orders.'
11. A careful perusal of the aforementioned provision makes it clear that the impugned notice pertains to Section 128 (1)(b) of TNULB Act and the proviso thereat as it is a case of immovable structures. Section 128(1)(b) necessarily means that the noticee should be show-caused giving 7 days time and if any representation is received in 7 days window, the same has to be considered by R1 before making final order and this is vide proviso to Page Nos.9/13
Section 128(1)(b) of TNULB Act.
12. A careful perusal of the impugned notice makes it clear that it really does not show-cause the noticee but it only calls upon the noticee to cooperate for removal of what according to R1 is encroachment but that there is encroachment is subjected to disputation and contestation by the writ petitioner.
13. In the light of the legal provision and the language in which Section 128 of TNULB Act is couched, facts and circumstances of this case and the trajectory the matter has taken, we make the following order: i) The impugned notice dated 20.06.2024 bearing reference e/f/vz;.1034/2022/vg;1 issued by R1 shall now be treated as a 'show-cause notice' ['SCN'] within the meaning of Section 128 (1)(b) of TNULB Act;
b) The noticee (writ petitioner) shall send a response to the same within 7 days from Monday (06.08.2024) i.e., by 12.08.2024;
c) In the interregnum i.e., between today and 06.08.2024, notice shall be served on R5 and R6 also and it is Page Nos.10/13
open to R5 and R6 to send representations. If R5 and R6 send representations, the same shall be considered vide proviso to Section 128(1)(b) of TNULB Act before making the final order. To be noted, this is the safety valve we are putting in as regards R5 and R6 (private respondents) who are not before this Court;
d) If the proceedings are dropped, accepting the cause shown, there will be no difficulty but if the proceedings are to go on post cause being shown and representations of R5 and R6 (if any) are considered until then i.e., until orders are made by R1 under Section 128(1)(b) of TNULB Act status quo as of today shall obviously be maintained.
Captioned WP disposed of in the aforesaid manner with the aforementioned observation, directives and preservation of rights in the aforesaid manner. Consequently, captioned WMP is disposed of as closed. There shall be no order as to costs.
(M.S.,J.) (K.G.T.,J.) Page Nos.11/13
30.07.2024 Index : Yes / No gpa To
1. The Commissioner Arni Municipality Arni Town, Arni Thiruvannamalai District 2.The District Collector Thiruvannamalai District Thiruvannamalai
3. The District Inspector of Survey Thiruvannamalai District Thiruvannamalai
4. The Executive Engineer Public Works Department Arni Thiruvannamalai District Page Nos.12/13
M.SUNDAR, J., and K.GOVINDARAJAN THILAKAVADI, J., gpa 30.07.2024 Page Nos.13/13