Senthamil Selvi .V v. The Commissioner
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 04.07.2023
CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN AND THE HONOURABLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY V.Senthamil Selvi ... Petitioner Vs.
1.The Commissioner, Madurai Corporation, Madurai.
2.R.Shanthi Sri
...Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India, to issue a Writ of Mandamus, directing the 1st respondent to remove the encroachment made in the public lane comprised in Madurai Corporation Survey Ward 2, East Madurai, Block No.22, T.S.No.95, 97 and T.S.No.5 made by the 2nd respondent considering the representation dated 25.05.2023. For Petitioner : Mr.S.Venkatesh For R1 : Mr.K.K.Kannan, Standing Counsel 1/7
ORDER
(Order of the Court was made by S.VAIDYANATHAN, J.) The petitioner has come forward with the prayer to direct the 1st respondent to remove the encroachment made by the 2nd respondent in Madurai Corporation Survey Ward 2, East Madurai, Block No.22, T.S.Nos.95, 97 and T.S.No.5 by considering the representation of the petitioner dated 25.05.2023. 2.Mr.K.K.Kannan, learned Standing Counsel takes notice on behalf of the 1st respondent. Since no adverse order is going to be passed as against the 2nd respondent, notice to her is dispense with.
3.By consent of both parties, this Writ Petition is taken up for final disposal at the stage of admission itself.
4.The grievance of the petitioner is that her representation dated 25.05.2023 seeking removal of the encroachment in the land in question made by the 2nd respondent made before the 1st respondent, has not been considered so far. 2/7
5.Mr.K.K.Kannan, learned Standing Counsel for the 1st respondent submitted that necessary survey would be conducted in the land in question, after issuing notice to the petitioner as well as any other interested parties. 6.We expect a survey to be conducted apart from taking photographs and video in the presence of parties. If required, police assistance can also be taken. If encroachment is found, no indulgence shall be shown to the encroachers. The dictum of the Hon'ble Apex Court as followed by this Court in W.P(MD)No. 15636 of 2023, dated 03.07.2023, needs to be adhered to. Relevant portion of the said order reads as follows:
""6. The Authorities concerned can also utilize the advanced technology of drone survey in the presence of the respective parties in order to ascertain the exact portion of encroachment. It is needless to mention that if any encroachment is found to be made, the electricity connection with respect to the encroachment shall have to be disconnected and the eighth respondent shall issue suitable direction to the concerned Assistant Engineer to that effect, in the light of the Judgment of the Division Bench in the case of "P.Selvarajan Vs. The Commissioner of Municipal Administration, Chennai and 3/7
others" (W.P.No. 21639 of 2017), decided on 13.02.2018, wherein the Division Bench observed as follows, in consonance with the order of the Supreme Court dated 05.01.2018 passed in a Petition for Special Leave to Appeal (C) No.33863 of 2017: "3. Learned counsel appearing for the fourth respondent submitted that the fourth respondent has made an application for regularisation and that during the pendency of the proceedings, this Court, by order dated 11.09.2017, directed disconnection of electricity in respect of basement, second and third floors of the fourth respondent's premises, against which, the matter was taken up to the Supreme Court. The Supreme Court, in Petition for Special Leave to Appeal (C).No.26509 of 2017, by order dated 13.10.2017, did not interfere with the said order of this Court dated 11.09.
2017, and permitted the fourth respondent herein to move the High Court. During the pendency of this Writ Petition, the fourth respondent herein has filed W.M.P.No.30495 of 2017 seeking direction to the TANGEDCO to restore the electricity connection to the building of the fourth respondent. This Court, by order dated 07.11.2017, rejected the restoration of electricity supply.
Supreme Court, by order dated 05.01.2018 in Petition for Special Leave to Appeal (C) No.33863 of 2017, has dismissed the Special Leave Petition, by observing as follows:
"Heard learned counsel for the petitioner and perused the impugned order dated 07.11.2017 passed in WMP.No.30495/2017 passed by the Madras High Court.
We are not inclined to interfere in the impugned order and accordingly, the Special Leave Petition is dismissed.
However, we direct the authority concerned before whom the application for regularisation under the DTCP Building Regularisation Scheme 2017 is pending to decide the matter in accordance with law within two months.
Pending application stands disposed of."
7. It is made clear that if there is any encroachment made, no indulgence shall be shown. The officials shall follow the dictums of this Court (S.K.Kaul,C.J., and R.Mahadevan,J.) in Contempt Petition No.1769 of 2015 and Contempt Petition No.2166 of 2015 (Suo motu) and in W.P. No. 28143 of 2021 dated 27.01.2022 (S.Vaidyanathan,J and D. Bharatha Chakravarthy,J.) in its letter and spirit. If the officials fail to remove the encroachment, disciplinary action shall be initiated and punishment for major misconduct shall be entered in the 5/7
service records that will deprive them of further chances of promotion."
7.We make it clear that we have not rendered any finding on the merits of the plea made by the petitioner and it is for the authority concerned to consider the petitioner's case and take a decision on merits and in accordance with law. 8.With the above direction, this Writ Petition stands disposed of. No costs.
(S.V.N., J.) & (D.B.C., J.) 04.07.2023 NCC : Yes / No Index : Yes / No Internet : Yes / No Yuva 6/7
S.VAIDYANATHAN, J.
AND D.BHARATHA CHAKRAVARTHY, J.
Yuva 04.07.2023 7/7