Writ petition challenging a municipal resolution and eviction notice for encroachment. Petitioner sought a direction to the competent authority to consider his reply to show-cause notice under Section 128(1)(b) TNULB Act. Court directed him to file fresh representation within seven days and the Commissioner to pass final orders within one week thereafter.
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W.P.No.35858 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.12.2024
Coram
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MR.JUSTICE K.RAJASEKAR
W.P.No.35858 of 2024
&
W.M.P.No.38723 of 2024
S.Karthick Raja S/o.Sundarraj
... Petitioner
vs
Municipal Council Namakkal
Namakkal District
Namakkal District
Page 1 of 7
W.P.No.35858 of 2024
4. The Tahsildar
Kumarapalayam Namakkal District .. Respondents
Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of certiorari to call for records pertaining to order passed in Resolution No.36 dated 30.01.2024 by the Respondent no.1 herein and the subsequent eviction order in Na.Ka.No.2636/2023/F1 dated 05.08.2024 passed by the respondent No.2 herein and quash the same.
For Petitioner : Mr.P.Vetrivel For Respondents : Mr.T.K.Saravanan Government Advocate for R1 to R4
O R D E R
(Order of the Court was made by K.RAJASEKAR, J.)
This writ of certiorari has been filed challenging Resolution No.36
dated 30.01.2024 of Respondent No.1 and the subsequent eviction order in Na.Ka.No.2636/2023/F1 dated 05.08.2024 passed by Respondent No.2
wherein eviction of writ petitioner from road was ordered.
Page 2 of 7
W.P.No.35858 of 2024
and 117 of Ward -B, Block No.16 of Kumarapalayam Municipality ('said
land' hereafter). He was served with a show-cause notice dated 18.08.2023, under Section 128(1)(b) of 'the Tamil Nadu Urban Local Bodies Act, 1998 (Tamil Nadu Act 9 of 1999)' [hereinafter 'TNULB Act' for the sake of brevity] to remove the construction put up by him in said
land. The petitioner filed an appeal before the first respondent herein and
as no action has been taken by the first respondent, the petitioner filed a writ petition before this Court in W.P.No.28870 of 2023 and this Court, vide order dated 19.10.2023, disposed of the said writ petition directing the first respondent to dispose of the appeal within a period of four
weeks. Pursuant to the order of this Court, the first respondent has passed
an order dated 30.01.2024 in the appeal.
the appeal by invoking the wrong provision before the first respondent,
Page 3 of 7
W.P.No.35858 of 2024
the same was considered and disposed of by an Committee which has no jurisdiction to decide the issue involving encroachments. Based on the Resolution of above Committee, final notice has been issued. The learned counsel for the writ petitioner further submitted that he has wrongly filed the appeal before the Respondent No.1 and prays this Court to direct Respondent No.2, who is competent authority, to consider the reply of the petitioner to show-cause notice. He has also made endorsement that the appeal filed by him is incorrect and a scanned reproduction of the same is as follows:
Page 4 of 7
W.P.No.35858 of 2024
Government Advocate accepts notice for R1 to R4.
notice dated 05.08.2024 shall be construed as show-cause notice under
Section 128(1)(b) of TNULB Act and after considering the representation
of the petitioner, fresh orders will be passed in accordance with law by
Respondent No.2.
'128. Power to remove encroachment from public place. -
(1) The Commissioner may, -
(a) ..........
(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.'
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W.P.No.35858 of 2024
Commissioner shall consider any representation received before passing
final orders.
8. In view of the narrative stated so far, we direct the petitioner to
submit fresh representation within 7 days from the date of receipt of a
copy of this order and second respondent to consider the petitioner's
representation, if made and pass final orders within a period of one week
thereafter.
9. We have not expressed any opinion on the merits of the claim of
writ petitioner and with this observation, this writ petition is disposed of,
preserving the rights of the writ petitioner. There shall be no order as to
costs. Consequently, the connected miscellaneous petition is closed.
[M.S., J] [K.R.S., J] 03.12.2024
(½)
Neutral Citation: Yes/No Speaking order/Non-speaking order
https://www.mhc.tn.gov.in/judis gpa Page 6 of 7
W.P.No.35858 of 2024
M.SUNDAR,J., and K.RAJASEKAR, J.,
gpa
To
W.P.No.35858 of 2024
03.12.2024 (½)
Page 7 of 7
1 issue framed by the court
Whether the eviction order passed against the petitioner complied with Section 128(1)(b) TNULB Act requiring consideration of his representation before final orders.
2 provisions across 2 enactments
S.Karthick Raja
The Chairman, Municipal Council Namakkal
The Municipal Commissioner, Komarapalayam Municipal Office
The Revenue Divisional Officer, Tiruchengode
The Tahsildar, Kumarapalayam
M.Sundar
K.Rajasekar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
