Disposed¶60

Thilagavathi v. the Commissioner

Madras HC3 Jan 2025WP/37767/2024

Case brief

AI extract

What is this about?

Madras High Court, W.P.No.37767 of 2024 (with W.M.P.No.40837 of 2024), decided 03.01.2025; Thilagavathi v. The Commissioner, Madurantakam Municipality, Chengalpattu District; Section 128 Tamil Nadu Urban Local Bodies Act 1998; removal of encroachment; show cause notice returnable within seven days; proviso to Section 128(1)(b); representation by 10.01.2025; certiorarified mandamus; Article 226; writ petition disposed with directions; M. Sundar J. and K. Rajasekar J.

What did the court decide?

Captioned writ petition disposed of by treating the impugned communication dated 18.11.2024 as a Show Cause Notice, with liberty to the petitioner to submit a representation by 10.01.2025 and a mandate on the respondent to pass final orders if such representation is filed; the writ miscellaneous petition was closed and there is no order as to costs.

Thilagavathi Vs the Commissioner — Writ and Judicial Review | Madras HC (2025)

What the court decided

AI extract

Outcome

¶60

Issue for consideration

Whether the impugned communication dated 18.11.2024 issued under Section 128 of the TNULB Act for removal of alleged encroachment is vitiated for failure to show cause the writ petitioner as required under the proviso to Section 128(1)(b) of the Act.

¶31

Court's answer

On a careful perusal of Section 128 of the TNULB Act, the proviso to Section 128(1)(b) is applicable to the case on hand.

¶52

Ratio / Principle

The language of Section 128 TNULB Act makes it clear that the noticee must be show-caused by a notice returnable within seven days, and if any representation is received within seven days, final orders have to be made.

¶53

Key takeaways

The impugned communication dated 18.11.2024 shall now be treated as a 'Show Cause Notice'; the writ petitioner/noticee may send a representation within seven days i.e., by 10.01.2025, and if such representation is sent, the respondent shall pass final orders, with further action (if any) subject to and depending on such final orders.ratio¶53
If the writ petitioner/noticee does not send a response within seven days, it is open to the respondent to proceed in accordance with law qua removal of the alleged encroachment.ratio¶54

Detailed headnote1 paragraphs

Writ Petition (Art. 226) against a communication dated 18.11.2024 (Na.Ka.No.1590/2024/F1) of the Commissioner, Madurantakam Municipality, issued under Section 128 of the Tamil Nadu Urban Local Bodies Act, 1998, concerning alleged encroachment at Door No.7A, Hospital Road, Madurantakam. HELD: The proviso to Section 128(1)(b) TNULB Act applies; the provision requires that the noticee be show-caused by notice returnable within seven days and, on receipt of any representation within that time, final orders must follow. Disposing of the petition, the Court directed that the impugned communication be treated as a Show Cause Notice, permitting the petitioner to submit a representation by 10.01.2025; if such representation is sent, the respondent shall pass final orders and further action will depend thereon. If no response is filed within seven days, the respondent is free to proceed in accordance with law for removal of the alleged encroachment. With these directions, the requirement of show cause under Section 128(1)(B) was held satisfied. Writ miscellaneous petition closed; no costs. Bench: M. Sundar and K. Rajasekar, JJ. (order by M. Sundar, J.).

¶1

W.P.No.37767 of 2024

¶2

IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶3

DATED : 03.01.2025

¶4

CORAM

¶5

THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE K.RAJASEKAR

¶6

W.P.No.37767 of 2024 and W.M.P.No.40837 of 2024

¶7

Thilagavathi S/o.Janagiraman

¶8

... Petitioner

¶9

Vs.

¶10

The Commissioner Madurantakam Municipality Chengalpattu District. ... Respondent

¶11

Prayer :

¶12

Writ Petition filed under Article 226 of The Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the records relating to the order dated 18.11.2024 passed by the respondent herein in Na.Ka.No.1590/2024/F1, quash the same and consequential direction directing the respondent herein to not to dispossess the petitioner from Door No.7A, Hospital Road, Madurantakam Town and Taluk, Chengalpattu District situated in Survey No.976, 977/3 without due process of law.

¶13

Page Nos.1/7

¶14

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

¶15

For Petitioner : Mr.G.Magesh Kumar For Respondent : Mr.P.Srinivas Standing Counsel

¶16

W.P.No.37767 of 2024

¶17

O R D E R

¶18

[Order of the Court was made by M.SUNDAR, J. ,]

¶19

Captioned main 'Writ Petition' {hereinafter 'WP' for the sake of

¶20

brevity} was listed in the Admission Board yesterday (02.01.2025), the

¶21

following proceedings were made:

¶22

'W.P.No.37767 of 2024 and W.M.P. No.40837/2024 in W.P.No.37767/2024

¶23

M.SUNDAR, J. and K.RAJASEKAR, J.

¶24

[Order of the Court was made by M.SUNDAR. J.]

¶25

There is no representation for the writ petitioner either in the physical Court or on the Video Conferencing platform. To be noted, this is a hybrid hearing which is a regular/daily/routine feature in this Court.

¶26

2. However, with the intention of giving an opportunity to writ petitioner and learned counsel for writ petitioner, list this matter tomorrow (03.01.2025) in the Admission Board i.e., Motion List but under the caption 'FOR DISMISSAL'.'

¶27

Page Nos.2/7

¶28

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

¶29

W.P.No.37767 of 2024

¶30

Today, Mr.G.Magesh Kumar, learned counsel on record for writ petitioner is before us on 'Videoconferencing' ['VC'] platform. Learned counsel expresses regret and apologizes for missing the matter yesterday.

¶31

A communication under Section 128 of 'The Tamil Nadu Urban Local Bodies Act, 1998 (Act 9 of 1999)' (hereinafter 'TNULB Act' for the sake of convenience and clarity) being communication signed on 18.11.2024 (signed by sole respondent) has been assailed. Adverting to Section 128 of TNULB Act, learned counsel submits that writ petitioner has not been show caused.

¶32

Issue notice to respondent.

¶33

Mr.P.Srinivas, learned Standing Counsel accepts notice for respondent.

¶34

Considering the limited scope of the captioned WP, captioned main

¶35

WP is taken up in the Admission Board with the consent of both sides.

¶36

Section 128 of TNULB Act reads as follows:

¶37

'128. Power to remove encroachment from

¶38

public place. - (1) The Commissioner may, -

¶39

(a) remove without any notice any movable temporary structure, enclosure, stall, booth, any article

¶40

Page Nos.3/7

¶41

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

¶42

W.P.No.37767 of 2024

¶43

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;

¶44

(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:

¶45

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

¶46

(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]:

¶47

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.'

¶48

Page Nos.4/7

¶49

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

¶50

W.P.No.37767 of 2024

¶51

A careful perusal of the aforementioned provision makes it clear

¶52

that Section 128(1)(b) of TNULB Act proviso thereat is applicable as regards the case on hand.

¶53

As regards Section 128 of TNULB Act, the language in which the provision is couched makes it clear that noticee should be show caused qua notice returnable in seven days and if any representation is received within 7 days, final orders has to be made. Therefore, we deem it appropriate to dispose of the captioned WP by writing that the impugned communication shall now be treated as 'Show Cause Notice' {'SCN'}, writ petitioner / noticee can send a representation within seven days from today i.e., by 10.01.2025, if so advised and if so desired and if such a representation is sent, sole respondent shall pass final orders and further action (if any) will be subject to / depending on such final orders.

¶54

If the writ petitioner / noticee does not send response within 7 days, it is open to respondent to proceed in accordance with law qua removal of alleged encroachment.

¶55

In the light of the order which we have written, the requirement to show cause noticee / writ petitioner vide Section 128(1)(B) of TNULB Act

¶56

Page Nos.5/7

¶57

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

¶58

W.P.No.37767 of 2024

¶59

is satisfied and directive qua proviso has been given.

¶60

Ergo, the sequitur is, captioned WP is disposed of in the aforesaid manner. Consequently, Writ Miscellaneous Petition is disposed of as closed. There shall be no order as to costs.

¶61

(M.S.,J.) (K.R.S.,J.) 03.01.2025

¶62

Index : Yes / No Neutral Citation : Yes / No Speaking order / Non-speaking order mk

¶63

To The Commissioner Madurantakam Municipality Chengalpattu District.

¶64

Page Nos.6/7

¶65

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

¶66

W.P.No.37767 of 2024