S.Subhashini Vs the Commissioner

Writ Petitions filed under Article 226 of the Constitution of India seeking a writ of mandamus forbearing the respondents, their men, agents, servants and any person claiming under them or acting on their behalf, from in any manner interfering with the peaceful possession and enjoyment of the petitioners, of the property, morefully described in the schedule to the writ petition, unless by following due process of law.

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Schedule mentioned properties in W.P.No.22762 of 2024

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Schedule A

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All that piece and parcel of vacant land situated in measuring an extent of 6,400 sq. ft. comprised in S.No.134/3, situated at Uppilipalayam Village, Coimbatore South Taluk, Sub Registration District of Singanallur, Revenue District of Coimbatore and being bounded on the:

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North by : Property owned by Krishnaswamy Naidu South by : Plot No.35 East by : Property owned by 1^st petitioner (S. Subhashini) West by : 30 feet road

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Schedule B

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All that piece and parcel of vacant land situated in measuring an extent of 3,200 sq. ft. comprised in S.No.134/1, 134/2, 134/3, 134/4, 135/1, 135/2, 135/3 and 135/4 situated at Uppilipalayam Village, Coimbatore South Taluk, Sub Registration District of Singanallur, Revenue District of Coimbatore and being bounded on the:

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North by : Property owned by Krishnaswamy Naidu South by : Plot No.34 East by : Property owned by 1^st petitioner (S. Subhashini) & 2^nd petitioner (A. Umapathy) West by : 30 feet road

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Schedule mentioned properties in W.P.No.22767 of 2024

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Schedule A

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All that piece and parcel of vacant land situated in measuring an extent of 6,400 sq. ft. comprised in S.No.134/3, situated at Uppilipalayam Village, Coimbatore South Taluk, Sub Registration District of Singanallur, Revenue District of Coimbatore and being bounded on the:

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North by : Property owned by Krishnaswamy Naidu South by : Plot No.35 East by : Property owned by 2^nd petitioner(S. Subhashini) West by : 30 feet road

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Schedule B

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All that piece and parcel of vacant land situated in measuring an extent of 3,200 sq. ft. comprised in S.No.134/1, 134/2, 134/3, 134/4, 135/1, 135/2, 135/3 and 135/4 situated at Uppilipalayam Village, Coimbatore South Taluk, Sub Registration District of Singanallur, Revenue District of Coimbatore and being bounded on the:

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North by : Property owned by Krishnaswamy Naidu South by : Plot No.34 East by : Property owned by 1^st petitioner (A. Umapathy) and 2^nd petitioner (S. Subhashini) West by : 30 feet road

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For petitioners Mr. B. Arvind Srevatsa in both WPs

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For RR 1 to 4 Mr. J. Ravindran, Addl. Adv. Gen. in both WPs assisted by Mr. K.M.D. Muhilan Standing Counsel

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For R5 in both WPs Mr. P.K. Harinath Babu

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COMMON ORDER

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[made by M.SUNDAR, J.] This common order will now dispose of the captioned two main

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'writ petitions' (hereinafter 'WPs' for the sake of brevity) and the captioned two WMPs thereat.

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This order has to be read in conjunction with and in continuation of earlier proceedings made in the previous listing on 09.01.2025 which reads as follows:

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'IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09-01-2025

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W.P. Nos.22762 and 22767 of 2024

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CORAM

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THE HONOURABLE MR JUSTICE M. SUNDAR

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AND

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THE HONOURABLE MR.JUSTICE K.RAJASEKAR

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AND

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WMP NO. 24802 OF 2024,WMP NO. 24803 OF 2024,WP NO. 22767 OF 2024,WMP NO. 24798 OF 2024,WMP NO. 24799 OF 2024,WMP NO. 30646 OF 2024,WMP NO.

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30647 OF 2024

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S.Subhashini

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W/o A. Umapathy Residing At No 3 Sairam Apartments 19/17 3rd Main Road Gandhi Nagar Adayar Chenani 600 020 and another

Petitioner(s)

Vs

The Commissioner

Coimbatore Municipal Corporation Coimbaotre 641 001 and 4 Others

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Respondent(s)

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For Petitioner(s):

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Mr. B.ARVIND SREVATSA

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For Respondent(s): MR.K.M.D.MUHILAN SC FOR RR1 TO 4 Mr. P.K. HARINATH BABU FOR R5

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WP NO. 22767 of 2024

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For Petitioner(s):

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Mr. B.ARVIND SREVATSA For Respondent(s): MR.K.M.D.MUHILAN SC FOR RR1 TO 4 Mr. P.K. HARINATH BABU FOR R5

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ORDER

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(Order of the Court was made by the Hon'ble M.Sundar J.)

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Prior to the captioned writ petitions, writ petitioners came to this Court by way of two writ petitions, namely W.P.Nos.19168 and 19174 of 2024. Both these writ petitions came to be disposed of by a Division Bench in and by an order dated 12.07.2024, which has been reported in Neutral Citation of this Court in 2024:MHC:2678 . The operative portion of this 12.07.2024 order is contained in paragraph 10 and the same reads as follows:

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'10. In the light of the narrative thus far, the following order is passed :

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(i) Impugned notices both bearing reference e/f/vz;/11243/2021/vr;1(fp) issued in the June of 2024, signed by R1 (the Commissioner, Coimbatore Municipal Corporation, Coimbatore - 641 001) on 24.06.2024 are now to be treated as 'Show Cause Notices' {hereinafter 'SCNs' for the sake of brevity} within the meaning of Section 128(1)(b) of TNULB Act;

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(ii) Writ petitioners shall be treated as noticees and writ petitioners shall send their responses to SCNs within seven days from today i.e., on or before 19.07.2024;

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(iii) Thereafter, R1 shall consider the responses and take a call on its own merits and in accordance with law, untrammeled by this order;

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(iv) Take a call means either drop the proceedings or proceed with the removal of encroachment and it includes any other action permissible in law i.e., more particularly, TNULB Act and TNULB Rules therein;

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(v) In the light of proviso to Section 128(1)(b) of TNULB Act, if any representation is received within seven days window provided supra, R1 shall consider the same before passing final orders;

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(vi) We make it clear that all the rights and contentions of both sides are preserved qua Statutory drill under TNULB Act / TNULB Rules and further proceedings, if any and if that be so;

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(vii) While considering the responses to impugned notices which have now become SCNs, we make it clear that it is open to R1 to hold personal hearing, if deemed necessary which in turn will depend on the nature of responses. We also actually make it clear for the sake of specificity that as it is not imperative for R1 to hold personal hearing and it is only discretionary and it will depend on the nature of responses to SCNs. This limb is owing to language in which Section 128(1)(b) of TNULB Act and proviso thereat are couched as the same only provide for being show caused and does not make for personal hearing statutorily imperative.'

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Today, Mr.B.Arvind Srevatsa, learned counsel for writ petitioners in both captioned writ petitions submits that the writ petitioners sent a representation dated 19.07.2024, both by hand and by Registered Post with acknowledgment due. Learned counsel submits that this representation was handed over in the Office of R1 on 19.07.2024. In this regard, learned counsel draws our attention to paragraph 28 of the writ affidavit which reads as follows:

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'28. I humbly submit that in compliance with Paragraph No.10(ii) of the Order dated 12.07.2024 passed in W.P.No.19168 of 2024 and 19174 of 2024, the Petitioners have submitted their response to the Show Cause Notice along with Annexures, on 19.07.2024, by hand and by registered post with acknowledgment due (RPAD).'

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Learned counsel also placed reliance on a copy of the 19.07.2024 representation containing what according to writ petitioner is an acknowledgment in first page and a scanned reproduction of the representation with acknowledgment (in left hand side bottom of first page) is as follows:

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Adverting to the aforementioned endorsement in the 19.07.2024 representation and the telephone number thereat, learned counsel for writ petitioner placed before us a print out of a screen shot from True Caller app and a scanned reproduction of the same is as follows:

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R1 has filed a counter affidavit and Mr.K.M.D.Muhilan, learned Standing counsel for R1 to R4 besides Mr.P.K.Harinath Babu, learned counsel for R5 are before us. R1 has filed a counter affidavit dated 25.09.2024 and the following points are noted:

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i) Aforementioned paragraph 28 of the writ affidavit has not been met. There is no whisper in the counter affidavit of R1 to R4;

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ii) Paragraph 12 of the counter affidavit reads as follows:

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'12. I further submit that the petitioners did not submit any representation until 19.07.2024. Their representations were received on 22.07.2024. The petitioners neither provided new evidence nor made any new submissions in their letter. The Honourable Court's order did not require the issuance of a fresh show cause notice or personal hearing. Hence, in compliance with the said order, the Corporation officials carried out the eviction of the encroachment dismantled the temporary steel compound wall and shed, and erected a name board as per legal requirements. The officials acted in accordance with their responsibilities, as the Coimbatore City Municipal Corporation, as Custodian of public-purpose sites, is duty bound to remove encroachments from such sites.'

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(iii) From the narrative thus far, it comes to light that passing final orders by R1 is not only pursuant to common order of this Court dated 12.07.2024 in W.P.No.19168 of 2024 and 19174 of 2024 but it is also a sanctus statutory duty under proviso to 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];

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(iv) This Court notices that without meeting either Paragraph 28 of writ affidavit or 19.07.2024 representation with what according to writ petitioner is acknowledgment in first page, aforementioned paragraph 12 averments in the counter affidavit (on the teeth of paragraph 28 of writ affidavit and acknowledgment in 19.07.2024 representation) have been made.

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Faced with the above situation, learned Standing Counsel for R1 to R4 sought time.

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Let the matter stand over to 20.01.2025 but let R1 remain present in this Court. It is made clear that no further affidavits shall be received by the Registry without the leave of this Court.

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List on 20.01.2025.

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(M.SUNDAR J.) (K.RAJASEKAR J.) 09-01-2025

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P.S. I: Upload forthwith

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P.S.II : All concerned including Registry of Madras High Court to act forthwith on the uploaded soft copy of this proceedings as uploaded in the official website of this Court. To be noted, the soft copies uploaded in the official website of this Court are water marked, besides being QR Coded.

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P.S.III: Registry to communicate this order to The Commissioner Coimbatore Municipal Corporation (R1)'

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The aforementioned proceedings are tell-tale qua factual matrix as well as the trajectory the matter has taken before this Court. Today, Mr. B. Arvind Srevatsa, learned counsel on record for writ petitioners in both WPs, Mr.K.M.D.Muhilan, learned Standing Counsel for Coimbatore Municipal Corporation (RR 1 to 4 in both WPs) led by learned Additional Advocate General and Senior Advocate Mr.J.Ravindran and Mr. P.K. Harinath Babu, learned counsel for R5 (private respondent - S.P. Thiyagarajan) in both WPs are before us. This means that all the parties to both the captioned two main WPs and WMPs thereat are represented by their respective counsel.

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All the counsel submit in unison that facts have been correctly captured in aforementioned 09.01.2025 proceedings. Therefore, we reiterate that aforementioned 09.01.2025 proceedings shall also be read as integral part and parcel of this order. This further means that the short forms, abbreviations and short references used in earlier proceedings dated 09.01.2025 will continue to be used in the instant order also.

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Pursuant to our aforereferred order, Mr.M.Sivaguru Prabhakaran, I.A.S., Commissioner, Coimbatore Municipal Corporation, Coimbatore (R1) is present in person in Court. Learned Additional Advocate General and Senior Advocate Mr. J. Ravindran very fairly submitted that final orders ought to have been made by R1 (Commissioner) inter alia owing to the statutory mandate vide proviso to Section 128(1)(b) of TNULB Act and sub-paragraph (iii) of paragraph 10 earlier judicial order of this Court dated 12.07.2024 in W.P.Nos.19168 of 2024 and 19174 of 2024.

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Learned Additional Advocate General and Senior Advocate

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went on to submit that R1 tenders apology and expresses regret for not having passed orders in the aforesaid manner. This submission is recorded.

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Be that as it may, learned Additional Advocate General and Senior Advocate very fairly submitted that R1 will now pass orders taking into account representation dated 19.07.2024 made by writ petitioners (scanned and reproduced in our earlier proceedings).

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Learned counsel for writ petitioners submits that the land which is the subject matter of instant writ petitions was originally a common well but we deem it appropriate to not to express any view or opinion on this submission or for that matter, on any point that has been raised in the 19.07.2024 representation and / or any other earlier representation.

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As regards R5 (private respondent - S.P. Thiyagarajan), it was submitted by learned counsel for writ petitioners that R5 has an axe to grind but this was disputed by learned counsel for R5. We

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deem it appropriate to not to delve further into this aspect of the matter as R5 is an informant and now, the matter is between the writ petitioners and the local body.

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In the light of the narrative, discussion and dispositive reasoning thus far, the following order is made:

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i. R1 (Commissioner, Coimbatore Municipal Corporation) shall now pass final orders in accordance with proviso to Section 128(1)(b) of TNULB Act within one week from today, i.e., on or before 27.01.2025 by considering the aforementioned 19.07.2024 representation (scanned and reproduced in our earlier proceedings) as 'representation' within the meaning of proviso to Section 128(1)(b);

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ii. The order passed in the aforementioned manner shall be duly served on both the writ petitioners under due acknowledgment within three working days from the date of the order;

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iii. If the aforementioned order of R1 is in favour of the writ petitioners, that would be the curtains on the matter but if it is adverse to the writ petitioners, the order shall be kept in abeyance for 10 days from the date of

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service of the order on the writ petitioners. As there are two writ petitioners, 10 days will be computed from the latter date in respect of two writ petitioners if service is not made on them on the same day;

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iv. The aforementioned window of 10 days is provided for the writ petitioners to assail the order (if adverse to the writ petitioners) if so advised and if so desired;

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v. Though obvious, we make it clear that R1 shall pass final orders in accordance with proviso to Section 128(1)(b) of TNULB Act untrammelled by this order and this proceedings. In other words, R1 shall pass orders vide relevant provisions of TNULB Act on the merits of the representation of writ petitioners (representation dated 19.07.2024) and in accordance with law; and

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vi. Learned Additional Advocate General and Senior Advocate very fairly submitted that status quo as of today will be maintained between today and lapsing of aforementioned 10 days window period (if R1 passes an adverse order). This submission is recorded. Likewise, the submission that the board now placed in the property in question will be removed forthwith, is recorded but with a rider that further action will depend on final orders to be made by R1.

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