High Court · 2025

W.P.No.9012 of 2025IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 20.03.2025CORAMTHE HONOURABLE MR.JUSTICE M.SUNDAR andTHE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADIW.P.No.9012 of 2025 andW.M.P. No.10124 of 2025 in W.P.No.9012 of 2025Masjid-E-Mohamadiya rep. By itsSecretary A.Hamsa Bai... PetitionerVs.1.The Commissioner, Avadi Municipality, Avadi, Chennai.2.The District Collector, Thiruvallur Collectorate, Thiruvallur District.3.The Tahsildar, Avadi Taluk, Avadi, Chennai.4.The Tahsildar, Urban Land Tax Scheme, Avadi, Chennai.5.The Revenue Divisional Officer, Thiruvallur District, Thiruvallur.Page Nos.1/12 https://www.mhc.tn.gov.in/judis W.P.No.9012 of 20256.G.Joseph7.The Tamil Nadu Wakf Board rep. By its Chief Executive Officer, No.1, Jaffar Syrang Street, Vallal Seethakathi Nagar, Chennai – 1. ... Respondents Writ Petition filed under Article 226 of The Constitution of India praying to issue a Writ of Certiorari to call for the records of the first respondent ending with Na.Ka.6804/2020/F1 dated 14.02.2025 and quash the same.For Petitioner : Mr.N.A.Nassir HussainFor Respondents:Mr.RA.Gopinath,Standing Counsel for R1Mr.T.K.Saravanan,Additional Government Pleaderfor R2 to R5Mr.T.Sai Krishnan for R7ORDER[Order of the Court was made by M.SUNDAR, J.,]Captioned main 'Writ Petition' (hereinafter 'WP' for the sake of brevity) has been filed with a prayer for issue of writ of certiorari qua a 'notice dated 14.02.2025 issued by R1 [Commissioner, Avadi Municipality, Avadi, Chennai]' (hereinafter 'impugned notice' for the sake of convenience and clarity) and a scanned reproduction of the same is as follows:Page Nos.2/12 https://www.mhc.tn.gov.in/judis W.P.No.9012 of 2025Page Nos.3/12 https://www.mhc.tn.gov.in/judis W.P.No.9012 of 2025Page Nos.4/12 https://www.mhc.tn.gov.in/judis W.P.No.9012 of 20252. Mr.N.A.Nassir Hussain, learned counsel on record for writ petitioner, adverting to the impugned notice submits that the impugned notice itself says that it has been issued under Section 128 (1)(b) 'The Tamil Nadu Urban Local Bodies Act, 1998 (Act 9 of 1999)' (hereinafter 'TNULB Act' for the sake of convenience and clarity) but the writ petitioner has not been show caused.3. Issue notice to official respondents.4. Mr.RA.Gopinath, learned Standing Counsel accepts notice for R1 and Mr.T.K.Saravanan, learned Additional Government Pleader accepts notice for R2 to R5 and Mr.T.Sai Krishnan, learned counsel accepts notice for R7.5. Mr.RA.Gopinath, learned Standing Counsel for R1 submits that notice has been issued under Section 128(1)(b) of TNULB Act and therefore it does not warrant interference.6. As regards the private respondent/R6 [Mr.G.Joseph, S/o.Mr.Gabbrial], we find that private respondent is a co-noticee Page Nos.5/12 https://www.mhc.tn.gov.in/judis W.P.No.9012 of 2025(Noticee No.2) qua impugned notice. Learned counsel for writ petitioner submits that impugned notice has been triggered on a complaint from R6. We make it clear that all the rights and contentions of R6 are preserved and in the order which we propose to make, we will make it clear that it is open to R6 also to send a representation, if so advised and so desired. Therefore, we are not making any order touching upon the rights of R6 much less an order that is adverse to R6. Therefore, notice to R6 is dispensed with.7. Owing to the limited scope of the captioned main WP, main WP is taken up in the Admission Board with the consent of the aforementioned counsel.8. Section 128(1)(b) of TNULB Act was amended on 05.07.2024 and amended Section 128 as it stands today reads as follows:'128. Power to remove encroachment from public place. - (1) The Commissioner may, -(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 Page Nos.6/12 https://www.mhc.tn.gov.in/judis W.P.No.9012 of 2025resources or any land belonging to or vested with the municipality with the municipal limit;(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:Provided that the Commissioner shall consider any representation received within the time limit, before passing final orders.(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]: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.'Page Nos.7/12 https://www.mhc.tn.gov.in/judis W.P.No.9012 of 20259. A careful perusal of the aforesaid provision under which the impugned notice has been issued makes it clear that noticees have to be show caused {15 days Show Cause Notice (SCN)} and if any representation is received within this 15 days, the Commissioner (R1 in this case) has to consider representation and pass 'final orders' within the meaning of proviso to Section 128(1)(b) of TNULB Act. In the case on hand, R1/Commissioner has directly called upon the noticee to remove the alleged encroachment. Therefore, it is not in conformity with Section 128(1)(b) of TNULB Act. In this view of the matter, we are of the considered view that instead of issuing a certiorari and dislodging the impugned notice, it will serve ends of justice if the impugned notice is directed to be treated as SCN received today.10. In the light of the narrative, discussion and dispositive reasoning thus far, the following order is made:10.1 We are not issuing writ of certiorari and dislodging (setting aside) the impugned Page Nos.8/12 https://www.mhc.tn.gov.in/judis W.P.No.9012 of 2025notice but we exercise our inherent powers and write that the impugned notice shall now be treated as 'Show Cause Notice (SCN)' within the meaning of Section 128(1)(b) of TNULB Act;10.2 R1 shall communicate (with due acknowledgement) a copy of this order to R6 forthwith;10.3 The above means that the noticees i.e., writ petitioner and R6 can send representation/s within a fortnight from today i.e., on or before 03.04.2025;10.4 On writ petitioner and/or R6 send representation, R1 shall consider the same and pass 'final orders' within the meaning of proviso to Section 128(1)(b) of TNULB Act;10.5 If no representation is received within 15 days period, it is open to R1 to proceed pursuant to impugned notice as we are not dislodging the impugned notice;Page Nos.9/12 https://www.mhc.tn.gov.in/judis W.P.No.9012 of 202510.6 Though obvious it is made clear that we have not expressed any view or opinion on the merits of the matter and on representation/s is/are sent, R1 shall consider the same on its own merits and in accordance with law untrammelled by this order;10.7 'Final orders' to be made by R1 in the aforementioned manner shall be served on the writ petitioner as well as R6 under due acknowledgement within five working days from the date on which the order is made;10.8 If the 'final orders' made in the aforesaid manner is adverse to the writ petitioner, the order shall be kept in abeyance for 10 days from the date of service of the same on the writ petitioner so as to enable writ petitioner to work out remedies if any in accordance with law;10.9 Though obvious we make it clear that any coercive action pursuant to the impugned notice shall be subject to and depending on the Page Nos.10/12 https://www.mhc.tn.gov.in/judis W.P.No.9012 of 2025final orders to be made in the aforesaid manner.11. Captioned WP is disposed of in the aforesaid manner with the aforementioned observations and directives. As we have made it clear that coercive action if any shall be subject to and depending on 'final orders' to be made by R1 in the manner set out supra, the captioned Writ Miscellaneous Petition (WMP) has become otiose and the same is closed. There shall be no order as to costs. (M.S.,J.) (K.G.T.,J.) 20.03.2025Index : Yes / NoNeutral Citation : Yes / NommiTo1.The Commissioner, Avadi Municipality, Avadi, Chennai.2.The District Collector, Thiruvallur Collectorate, Thiruvallur District.3.The Tahsildar, Avadi Taluk, Avadi, Chennai.4.The Tahsildar, Urban Land Tax Scheme, Avadi, Chennai.5.The Revenue Divisional Officer, Thiruvallur District, Thiruvallur.7.The Chief Executive Officer, Tamil Nadu Wakf Board,Page Nos.11/12 https://www.mhc.tn.gov.in/judis W.P.No.9012 of 2025 No.1, Jaffar Syrang Street, Vallal Seethakathi Nagar, Chennai – 1.M.SUNDAR, J.,andK.GOVINDARAJAN THILAKAVADI, J.,mmi W.P.No.9012 of 2025 20.03.2025Page Nos.12/12