S.Radhakrishnan Vs The commissioner

S. Radhakrishnan Petitioner in WP No.18480/2021 A.R.Madavan Petitioner in WP No.18482/2021 S. Viswanathan Petitioner in WP No.18484/2021 M. Sundar Petitioner in WP No.18489/2021

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vs.

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The Commissioner Villupuram Municipality Villupuram

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The Municipal Engineer Villupuram Municipality Villupuram

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The Assistant Engineer TANGEDCO Villupuram

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S.S. Rajendran Respondents in all WPs

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Page Nos.1/22

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https://www.mhc.tn.gov.in/judis

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W.P.Nos.18480, 18482, 18484 and 18489 of 2021

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Prayer in W.P.No.18480 of 2021:

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Writ Petition filed under Article 226 of the Constitution of India seeking a writ of certiorarified mandamus calling for the records of the first respondent in his proceedings in Na.Ka.No.9905/2021/F1 dated 03.08.2021 received by the petitioner on 11.08.2021 and quash the same and thereby, forbear the respondents from interfering with the petitioner's property in Door No.9, Town Survey Nos.79 and 83 and Old Town Survey Nos.12/10 and 12/11 in Ward – A, Block – 18 presently Block No.82.

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Prayer in W.P.No.18482 of 2021:

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Writ Petition filed under Article 226 of the Constitution of India seeking a writ of certiorarified mandamus calling for the records of the first respondent in his proceedings in Na.Ka.No.9905/2021/F1 dated 03.08.2021 received by the petitioner on 11.08.2021 and quash the same and thereby, forbear the respondents from interfering with the petitioner's property/dwelling house in Plot Nos.76,76A and 77, Town Survey No.79,83 and Old Town Survey Nos.12/10 and 12/11 in Ward – A, Block – 18 presently Block No.82.

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Page Nos.2/22

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https://www.mhc.tn.gov.in/judis

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W.P.Nos.18480, 18482, 18484 and 18489 of 2021

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Prayer in W.P.No.18484 of 2021:

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Writ Petition filed under Article 226 of the Constitution of India seeking a writ of certiorarified mandamus calling for the records of the first respondent in his proceedings in Na.Ka.No.9905/2021/F1 dated 03.08.2021 received by the petitioner on 11.08.2021 and quash the same and thereby, forbear the respondents from interfering with the petitioner's property in Door No.20, Town Survey Nos.79, 83 and Old Town Survey No.12/11 in Ward – A, Block – 18 presently Block No.78.

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Prayer in W.P.No.18489 of 2021:

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Writ Petition filed under Article 226 of the Constitution of India seeking a writ of certiorarified mandamus calling for the records of the first respondent in his proceedings in Na.Ka.No.9905/2021/F1 dated 03.08.2021 received by the petitioner on 17.08.2021 and quash the same and thereby, forbear the respondents from interfering with the petitioner's property in Door No.8/3, Town Survey Nos.79,83 and Old Town Survey No.12/10 and 12/11 in Ward – A, Block 18, presently Block No.82.

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Page Nos.3/22

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https://www.mhc.tn.gov.in/judis

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W.P.Nos.18480, 18482, 18484 and 18489 of 2021

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For petitioner in all WPs	Mr. N. Suresh
For RR 1 & 2	Mr. P. Srinivas
in all WPs	Standing Counsel
For R3	Mr. V. Venkata Seshaiya
in all WPs	Standing Counsel
For R4 in all WPs	Mr. S. Sathish

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COMMON ORDER

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[made by M. SUNDAR, J.]

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This common order will govern the captioned four main 'writ petitions' (hereinafter 'WPs' for the sake of brevity) and the captioned 'writ miscellaneous petitions' (hereinafter 'WMPs' for the sake of brevity) thereat.

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In the captioned main WPs, four separate notices but all dated 03.08.2021 and all bearing reference e/f/vz; 9905/2021/vg;1 (hereinafter 'impugned notices' for the sake of convenience and clarity) have been assailed by the four writ petitioners. A scanned reproduction of one of the impugned notices i.e., impugned notice in W.P.No.18480 of 2021 (Radhakrishnan-writ petitioner) is as follows:

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Page Nos.4/22

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https://www.mhc.tn.gov.in/judis

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W.P.Nos.18480, 18482, 18484 and 18489 of 2021

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Page Nos.5/22

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W.P.Nos.18480, 18482, 18484 and 18489 of 2021

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Mr. N. Suresh, learned counsel for writ petitioners in all WPs, Mr. P. Srinivas, learned counsel for RR 1 and 2 (Standing Counsel for Villupuram Municipality in all WPs), Mr. V. Venkata Seshaiya, learned Standing Counsel for R3 (TANGEDCO) in all WPs and Mr.S.Sathish, learned counsel for R4 in all WPs, are before us.

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This Court heard all the aforesaid counsel.

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Mr. P. Srinivas, learned Standing Counsel for Villupuram Municipality, submitted that the impugned notices can be construed to be notices issued under Section 362 of 'the Tamil Nadu District Municipalities Act, 1920 (Tamil Nadu Act V of 1920)' [hereinafter 'the District Municipalities Act' for the sake of brevity], though the impugned notices only talk about consequences under Section 362, if alleged encroachment is not removed within 15 days.

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Notwithstanding very many averments in the writ affidavit, learned counsel for writ petitioners predicated his campaign against the impugned notices on one point and that one point is, the writ petitioners have not been show caused.

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Page Nos.6/22

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https://www.mhc.tn.gov.in/judis

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W.P.Nos.18480, 18482, 18484 and 18489 of 2021

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Learned Standing Counsel for Villupuram Municipality submits that the impugned notices can now be treated as 'show cause notices' [hereinafter 'SCNs' for the sake of convenience and clarity].

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Learned counsel for R4 [private respondent] submits that if the impugned notices are treated as SCNs today, a time frame may please be fixed for the writ petitioners / noticees to respond.

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This Court has no difficulty in accepting the proposal to consider the impugned notices as SCNs as that would only mean that the writ petitioners are given an opportunity to respond and put forth their say qua alleged encroachments but before we do that and write the operative portion of this order, we deem it appropriate to capture the obtaining legal position for the sake of convenience and clarity qua all concerned.

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10. 'The Tamil Nadu Urban Local Bodies Act, 1998 (Act 9 of 1999)' [hereinafter 'the TNULB Act' for the sake of brevity] is a conditional legislation vide sub-section (3) of Section 1 of TNULB Act, which is dated 04.05.1999, but originally kicked in (came into force)

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Page Nos.7/22

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W.P.Nos.18480, 18482, 18484 and 18489 of 2021

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on 01.08.2000, suspended immediately thereafter, i.e., on 23.08.2000 and resuscitated on 13.04.2023 vide notification.

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11. In and vide Section 200 of the TNULB Act captioned 'Repeal and saving' [to be precise vide Section 200(1)(b)], the District Municipalities Act stood repealed but vide clause (e) of sub-section 3 of Section 200 of the TNULB Act, all things done, made, instituted, executed, appointed, etc . by Municipalities before the commencement of the TNULB Act, i.e., prior to kicking in of the TNULB Act, stand saved and they are to be construed as things done, made, instituted, executed, appointed, etc . under the provisions of the TNULB Act.

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12. Section 200(3)(e) of the TNULB Act has been amended vide Act 25 of 2024 which came into force on and from 06.01.2025. The effect of the amendment is, the term 'Municipalities' occurring in Section 200 (3)(e) has been substituted with the expression 'Municipal Councils'. Therefore, Section 200 (3)(e) of the TNULB Act as of today reads as follows:

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W.P.Nos.18480, 18482, 18484 and 18489 of 2021

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' Section 200 (3)(e)

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Repeal and Saving.- (1) The following Acts are hereby repealed, namely:-

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(1)........

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(2) .........

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(3) Notwithstanding such repeal.-

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(a) .....

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(b) ..... (c) ..... (d) .....

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(e) all things done, made, instituted, executed and appointed by the municipal corporations, Municipal Councils , town panchayats under the relevant Acts referred to in sub-section (1) before the [commencement of the Tamil Nadu Urban Local Bodies (Amendment) Act, 2022] shall be deemed to have been done, made, instituted, executed or appointed, as the case may be, by the municipal corporations, Municipal Councils and town panchayats deemed to have been constituted under the provisions of this Act.'

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(highlighting made by us in bold letters denotes amendment made)

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13. This takes us to the definition of the expressions 'Municipal

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Council' and 'Municipality' vide Section 3 (12-C) and Section 3 (12-D) respectively of the District Municipalities Act and the same read as follows:

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Page Nos.9/22

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W.P.Nos.18480, 18482, 18484 and 18489 of 2021

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'(12-C) "Municipal Council' means the Council of the Third Grade Municipality, Town Panchayat or the Municipality as the case may be;'

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'(12-D) 'Municipality' means an institution of selfGovernment constituted for a smaller urban area as defined in clause (2) of Article 243-Q of the Constitution;'

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Adverting to the aforesaid definitions, Mr. P. Srinivas, learned Standing Counsel for Villupuram Municipality, submitted that the Commissioner of Villupuram Muncipality has issued the impugned notices on behalf of the Municipal Council pursuant to resolution of Municipal Council and therefore, the impugned notices have, for all practical purposes, been issued by the Municipal Council. In this view of the matter, impugned notices are saved but we shall be writing that the same shall now be treated as SCNs.

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It is also necessary to record that the learned Standing Counsel for Villupuram Municipality made a faint attempt to submit that the impugned notices have been issued pursuant to common judgment dated 11.07.2002 in S.A. Nos.645 to 659, 677, 774 and 775 of 1992. According to learned Standing Counsel, lands which are

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Page Nos.10/22

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W.P.Nos.18480, 18482, 18484 and 18489 of 2021

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subject matter of impugned notices vest in the Municipality as per this common judgment. If that be so, it is open to the Municipality to launch an execution petition (subject, of course, to limitation and other requirements), if so advised and so desired. To put it differently, if an execution petition is launched, the Executing Court shall deal with the same on its own merits and in accordance with law untrammelled by this order. We are informed that the suits which culminated in second appeals are for declaration of title and permanent injunction for removal of alleged encroachments. We express no opinion on this aspect of the matter but we only record the stated position of the Standing Counsel that the parties stand governed by 11.07.2002 common judgment in aforereferred second appeals, subject to limitation.

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As regards the TNULB Act, it is submitted by learned Standing Counsel that the provision akin to Section 362 of the District Municipalities Act is, Section 128 of the TNULB Act which reads as follows:

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W.P.Nos.18480, 18482, 18484 and 18489 of 2021

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'128. Power to remove encroachment from public place. -

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(1) The Commissioner may, -

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(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;

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(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 from the date of receipt thereof:

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Provided that the Commissioner shall consider any representation received within the time limit, before passing final orders.

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(2) Whoever makes any encroachment in any land or space (not being private property) in any public street or any [land belonging to or vested with the municipality] within the municipal limit, shall, on conviction, be punished with imprisonment which shall not be less than one year but which may extend to three years and with fine which may extend to [fifty thousand rupees]:

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Provided that the Court may, for any adequate or special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than one year.'

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Page Nos.12/22

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W.P.Nos.18480, 18482, 18484 and 18489 of 2021

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Section 128 of the TNULB Act also has been amended

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by Amendment Act 25 of 2024 with effect from 06.01.2025 and

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the amended Section 128 reads as follows:

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'128. Power to remove encroachment from public place. - (1) The Commissioner may, -

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(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, public place, water body, tank, other water resources or any land belonging to or vested with the municipality with the municipal limit;

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(b) remove any immovable structure whether permanent or of temporary nature encroaching street, public place, water body, tank, other water resources or any 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 fifteen days from the date of receipt thereof:

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Provided that the Commissioner shall consider any representation received within the time limit, before passing final orders.

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(2) Whoever makes any encroachment in any land or space (not being private property) in any public street, water body, tank, other water resources or any land belonging to or vested with the municipality within the municipal limit, shall, on conviction, be punished with imprisonment which shall not be less than one year but which may extend to three years and with fine which may extend to [fifty thousand rupees]:

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Page Nos.13/22

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https://www.mhc.tn.gov.in/judis

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W.P.Nos.18480, 18482, 18484 and 18489 of 2021

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Provided that the Court may, for any adequate or special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than one year.'

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(highlighting made by us in bold letters denotes amendment made)

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This Court, having set out and captured the statutory

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provisions as obtaining today, now proceeds to write the operative portion of the instant common order which is as follows:

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i. Impugned notices being notices dated 03.08.2021 bearing reference e/f/vz; 9905/2021/vg;1 addressed to each of the writ petitioners shall be treated as SCNs from today;

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ii. As impugned notices are being treated as SCNs from today, each of the writ petitioners can send a representation in response to the SCNs (if so advised and so desired) within 15 days from today i.e., on or before 27.03.2025;

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iii. It is open to R4 (private respondent) also to send a representation within the aforementioned 15 days timeline;

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W.P.Nos.18480, 18482, 18484 and 18489 of 2021

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iv.

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iv. If no representation is received, both from the writ petitioners and R4 within the aforementioned timeline, R1 (Commissioner, Villupuram Municipality) can proceed to pass 'final orders' under proviso to Section 128(1)(b) of the TNULB Act;

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v. Though obvious, we make it clear that if representations are/is received from either writ petitioners or R4 and if representations are received from both, i.e., writ petitioners and R4, the representation/s shall be considered on its/their own merits and in accordance with law and 'final orders' shall be passed by R1 under proviso to Section 128(1)(b) of the TNULB Act;

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vi. The orders passed by R1 in the aforesaid manner shall be duly served on the writ petitioners as well as R4 under due acknowledgment within five working days from the date of the orders; and

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vii. Coercive action, if any, qua lands which are subject matter of the impugned notices, shall be subject to and depending on final orders to be made by R1 under proviso to Section 128(1)(b);

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W.P.Nos.18480, 18482, 18484 and 18489 of 2021

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One more aspect of the matter is, a Hon'ble Predecessor

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Division Bench, in and vide proceedings dated 03.09.2021, has directed captioned WPs to be posted along with W.P.No.16011 of 2021. We went into the official website of this Court and found that W.P.No.16011 of 2021 and the writ miscellaneous petition thereat have been dismissed by another Hon'ble Division Bench on 06.09.2021 on the ground that they have become infructuous. A scanned reproduction of the 06.09.2021 order is as follows:

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Page Nos.16/22

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https://www.mhc.tn.gov.in/judis

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W.P.Nos.18480, 18482, 18484 and 18489 of 2021

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Page Nos.17/22

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W.P.Nos.18480, 18482, 18484 and 18489 of 2021

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Page Nos.18/22

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W.P.Nos.18480, 18482, 18484 and 18489 of 2021

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https://www.mhc.tn.gov.in/judis

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W.P.Nos.18480, 18482, 18484 and 18489 of 2021

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Captioned four WPs are disposed of in the aforesaid

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manner. In the light of orders passed in the main WPs, interim orders in the captioned writ miscellaneous petitions are effaced and the writ miscellaneous petitions are disposed of as closed. There shall be no order as to costs.

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(M.S., J.) (K.G.T., J.) 13.03.2025

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cad

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W.P.Nos.18480, 18482, 18484 and 18489 of 2021

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To: