Disposed

S. Makeswari, v. the District Collector

Madras HC3 Oct 2018WP(MD)/10125/2018

Case brief

AI extract

What is this about?

The Madurai Bench disposed of a writ petition seeking direction to remove public street encroachments. The court held that removal must strictly follow Chapter IX of the Tamil Nadu District Municipalities Act, specifically requiring written notice of at least two weeks, citing Ramaraju vs. the State of Tamil Nadu.

What did the court decide?

The writ petition was disposed of with a direction that encroachment removal must comply with Chapter IX of the Tamil Nadu District Municipalities Act.

S. Makeswari, Vs the District Collector — Municipal and Town Planning | Madras HC (2018)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 03.10.2018

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CORAM THE HONOURABLE MR.JUSTICE T.RAJA

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AND THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY W.P.(MD)No.10125 of 2018

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S.Makeswari ... Petitioner Vs. 1. The District Collector, Office of the District Collector, Sivagangai District. 2. The District Revenue Officer, Sivagangai, Sivagangai District. 3. The Revenue Divisional Officer, Office of the Revenue Divisional Officer, Sivagangai District. 4. The Assistant Director of Town Panchayat, Office of the Assistant Director of Town Panchayat, Sivagangai, Sivagangai District. 5. The Tahsildar, Thiruppuvanam Taluk, Thiruppuvanam, Sivagangai District. 6. The Executive Officer, Thiruppuvanam Town Panchayat, Thiruppuvanam, Sivagangai District. ... Respondents PRAYER: Writ Petition is filed under Article 226 of the Constitution of India to issue a Writ of Mandamus directing the sixth respondent to take appropriate action on the basis of the direction issued by the respondent No.3 in M.M.A3/600/2017, dated 28.03.2017 and by considering the representation submitted by the petitioner dated 09.02.2018 in accordance with law, within the time stipulated by this Court. For Petitioner : Mr.R.Alagumani For R1 to R5 : Mr.M.Pandiarajan https://hcservices.ecourts.gov.in/hcservices/ Additional Government Pleader For R6 : No appearance

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O R D E R

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[Order of the Court was made by T.RAJA,J. ]

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Mrs.S.Makeswari, W/o. S.Sekar, residing at 118B Indira Nagar, Thirupuvanam, has come to this Court seeking writ of Mandamus directing the sixth respondent to take action, on the basis of the direction issued by the Revenue Divisional Officer, Sivagangai District, the third respondent herein in M.M.A3/600/2017, dated 28.03.2017, on the basis of the representation given by the petitioner, dated 09.02.2018, in accordance with law.

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The petitioner prima facie established the case before this Court that there are encroachments in the public streets and road margins. This Court also passed an interim order dated 30.08.2018, directing the respondents to issue notice to the encroachers and the public announcement if any given is not sufficient. Despite several representations given to the sixth respondent with a request to remove the encroachments in three Streets of Indira Nagar, Thiruppuvanam Taluk, on the basis of the communication issued by the Revenue Divisional Officer, Sivagangai, the third respondent herein in letter bearing O.M.(A3)1215/2017, dated 04.05.2017 and also one more communication issued by the Revenue Divisional Officer in letter M.M.A3/600/2017, dated 28.03.2017, no action has been taken by the respondent No.6 and hence, she has been advised to come to this Court for removal of encroachment.

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The removal of encroachments is to be made clearing the public pathway, streets and road margins which are standing as obstacles for free flow of traffic, by following the ratio laid down by the Full Bench of this Court in Ramaraju vs. the State of Tamil Nadu reported in 2005(2) CTC 741. The relevant portion in paragraph – 38 is given as under:

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“38. It is of course true that in the two counter affidavits, the municipalities have taken the stand, quite expectedly and understandably, that they have no intention to take any step for removal of any encroachment from the road or road margins without following the due procedure of law and they do not have the intention to take steps for eviction of any person from any land not belonging to the municipalities. However, since the news item appearing in the News Papers gives the impression as if Rajapalayam Municipality intended to remove all encroachments pursuant to the order passed by the High Courts in W.P.No. 689 of 2005 and since certain misconceptions have arisen as if the Division Bench has given a blanket direction for removal of encroachment even without following due process of law, the matter is required to be clarified in the following manner :

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(1) If the encroachment is on road or road margins, https://hcservices.ecourts.gov.in/hcservices/ vested in Municipalities, the removal if any is to be effected only after following the procedure contemplated in

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Chapter IX of the Tamil Nadu District Municipalities Act and more particularly the provisions contained in Section 182 and Section 183(6) Before taking action under Section 182 of the District Municipalities Act, notice in writing giving atleast two weeks time should be served and, if the person avoids to receive the notice, such notice can be effected by affixure. However, notice by any other means, such as through public announcement or beating of drums or by general notice in newspapers, may not be sufficient.

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(2) The decision in W.P.No. 689 of 2005 cannot be construed as having abrogated the statutory power of the Council under Sections 182 and 183. The Council may grant licence to put up verandas, balconies, sunshades, weatherframes and the like. Similarly, the Council has power to lease road sides and street margins for occupation on such terms and conditions and for such period as the Council may fix. However, such power under Sections 183(1) and 183(3) should be exercised keeping in view the provisions contained in Sections 183(4) and no such licence under Section 183(1) or lease under Section 183(3) should be granted if the projection, construction or occupation is likely to be injurious to health or cause public inconvenience or otherwise materially interfere with the use of the road as such. Any projection or construction put up under Section 183(1) or (2) can be removed on expiry of the licence or the lease, as the case may be. Compensation is required to be paid in matters coming within the scope of 182(2).”

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A perusal of the aforesaid direction clearly shows that if any encroachment is found on road or road margins, vested in Municipalities, the removal if any is to be effected only after following the procedures contemplated in Chapter IX of the Tamil Nadu District Municipalities Act. Moreover, it is clear that in this regard, notice in writing giving at least two weeks time should be served and if the person avoids to receive the notice, such notice can be effected by affixure. Merely giving public announcement or beating of drums or by general notice in newspapers, may not be sufficient and they should also issue notice giving two weeks time as mentioned above.

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With the above direction, the writ petition stands disposed of. No costs.

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Sd/-

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Assistant Registrar(AD-I)

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/True Copy/

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https://hcservices.ecourts.gov.in/hcservices/

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Sub Assistant Registrar(CS-IV)

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1.	The District Collector,
	Office of the District Collector, Sivagangai District.
2.	The District Revenue Officer, Sivagangai, Sivagangai District.
3.	The Revenue Divisional Officer, Office of the Revenue Divisional Officer, Sivagangai District.
4.	The Assistant Director of Town Panchayat, Office of the Assistant Director of Town Panchayat, Sivagangai, Sivagangai District.
5.	The Tahsildar, Thiruppuvanam Taluk, Thiruppuvanam, Sivagangai District.
6.	The Executive Officer, Thiruppuvanam Town Panchayat, Thiruppuvanam, Sivagangai District.
+1c +1c AKV	c to Mr.R.Alagumani, Advocate Sr.No.88374 c to Spl.Government Pleader Sr.No.88689

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VB/SV/SAR4/12.11.2018/4P/9C

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W.P.(MD)No.10125 of 2018 03.10.2018

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https://hcservices.ecourts.gov.in/hcservices/

S. Makeswari, v. the District Collector

Case brief

What is this about?

What did the court decide?

S. Makeswari, v. the District Collector

Case brief

What is this about?

What did the court decide?

What the court decided

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