Disposed

Valli, W/O.Masanam, v. the District Collector

Madras HC3 Oct 2018WP(MD)/18912/2018

Case brief

AI extract

What is this about?

The Madurai Bench of Madras High Court disposed of a writ petition seeking forbearance from demolishing the petitioner's house. The Court directed the respondents to follow due statutory procedure regarding notice before removing encroachments under the Tamil Nadu District Municipalities Act.

What did the court decide?

Writ petition disposed of with directions to follow due notice procedure under the Tamil Nadu District Municipalities Act.

Valli, W/O.Masanam, Vs the District… — Constitutional and Fundamental Rights | 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

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THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY W.P.(MD)No.18912 of 2018 and W.M.P.(MD).No.16748 of 2018

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Valli ... Petitioner

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Vs.

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The District Collector,

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Sivagangai District.

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The Executive Officer, Tirupuvanam Special Grade Town Panchayat, Tirupuvanam,

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Sivagangai District. ... Respondents

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PRAYER: Writ Petition is filed under Article 226 of the Constitution of India to issue a Writ of Mandamus forbearing the respondents from demolishing the petitioner's house property in Door No.13/29-A without following due process of law, by considering the representation of the petitioner, dated 27.08.2018.

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For Petitioner : Mr.J.Anandkumar For R1 : Mr.C.Ramar Additional Government Pleader For R2 : NA

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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.Valli, W/o. Masanam, has come to this Court seeking writ of Mandamus forbearing the respondents from demolishing her house property in Door No.13/29-A, situated at Indra Nagar, Ward No.13, Thirupuvanam, Sivagangai District, by considering her representation, dated 27.08.2018.

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Learned counsel appearing for the petitioner would submit that the petitioner is having a dwelling house in Door No.13/29-A, situated at Indra Nagar, Ward No.13, Thirupuvanam, Sivagangai District in Survey No.97/4. The said house also has been assessed for payment of property tax. On the basis of the assessment made, the petitioner has been paying the house tax without any default. https://hcservices.ecourts.gov.in/hcservices/ It is also stated that the house has been constructed following the norms and no complaint whatsoever has been till date given

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against the petitioner. There is no complaint of any hindrance to the free flow of traffic in the street due to the house constructed by the petitioner. While so, all of a sudden, an announcement has been made through mike on 25.08.2018, calling upon all the house owners to remove the encroachments made in the streets on or before 30.09.2018. The petitioner made an enquiry and it was informed that the projection of the houses more particularly stair cases of some of the houses are situated in the streets are also going to be removed as encroachments. Therefore, the petitioner has come to this Court.

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The learned counsel for the petitioner would further submit that if there is any encroachment allegedly made in the street, the respondents can take action only after issuing notice in the manner known to law. Referring to the Full Bench judgment of this Court in Ramaraju vs. the State of Tamil Nadu reported in 2005(2) CTC 741, the learned counsel for the petitioner submitted that only giving an announcement by drum is not sufficient for removal of any encroachment. It is further pleaded that notice by any other means, such as, through public announcement or beating of drums or by general notice in newspapers may not be sufficient. Even if 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 and more particularly, the provisions contained in Section 182 and 183(6) of the Act. Before taking action under Section 182 of the District Municipalities Act, 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. While so, 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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In the present case, the respondents are resorting to only public announcement through beating of drums. Since the affected persons are not available and in their absence, if any public announcement is made through beating of drums and finally, in the guise of removing the encroachment in a building or construction is removed, that would cause grave prejudice. Therefore, the Full Bench of this Court has given a safeguard that even if there is any encroachment found to be removed, that has to be done only after giving notice in writing giving at least two weeks time from the date of serving the same.

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It is at this stage, learned Additional Government Pleader submitted that the petitioner has come to this Court for writ of Mandamus forbearing the respondents from demolishing her house property and other projections made into the streets illegally, on https://hcservices.ecourts.gov.in/hcservices/ the ground that he has not been served with notice, whereas the petitioner has been issued with notice dated 05.09.2018.

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As no such copy of notice said to have been issued against the petitioner is produced by the respondents, we dispose of the writ petition directing the respondents to follow the procedures laid down by the Full Bench of this Court in Ramaraju vs. the State of Tamil Nadu reported in 2005(2) CTC 741, which 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, vested in Municipalities, the removal if any is to be effected only after following the procedure contemplated in 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 https://hcservices.ecourts.gov.in/hcservices/ under Section 183(1) or (2) can be removed on expiry of the licence or the lease, as the case may be. Compensation is

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required to be paid in matters coming within the scope of 182(2).”

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With the above direction, this writ petition stands disposed of. No costs. Consequently, the connected Miscellaneous Petition is closed. Sd/Assistant Registrar(AD-I) /True Copy/

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Sub Assistant Registrar(CS-IV)

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The District Collector, Sivagangai District. 2. The Executive Officer, Tirupuvanam Special Grade Town Panchayat, Tirupuvanam, Sivagangai District.

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+1cc to Mr.J.Anandkumar, Advocate Sr.No.88299 AKV

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

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W.P.(MD)No.18912 of 2018 03.10.2018

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

Valli, W/O.Masanam, v. the District Collector

Case brief

What is this about?

What did the court decide?

Valli, W/O.Masanam, v. the District Collector

Case brief

What is this about?

What did the court decide?

What the court decided

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