Madrasdated High Court · 2024

W.P.No.19505 of 2024 Lakshminarayan, S/o.Govindarajan, No.1/8, Manikandapuram 4th Street, Thirumullaivoyal, Opposite Mangalam Wedding Hall, Chennai , Tamil Nadu – 600 062. ... RespondentsWrit Petition filed under Article 226 of The Constitution of India praying to issue a Writ of Mandamus directing the first respondent to remove the illegal encroachment of the third respondent in Survey Nos.7 and 12 situated at Plot No.4, Thirumullaivoyal Ward No.16, Block No.83, Survey No.16 (New) Survey No.12, Ward No.16, Avadi Taluk, Thiruvallur District and further directing the first respondent to consider the representations of the petitioner dated 16.03.2023 and 29.05.2024 within stipulated time fixed by this Court.For Petitioner : Mr.M.AnantharajFor Respondents:Mr.RA.Gopinath,Standing Counsel for R1 ORDER[Order of the Court was made by M.SUNDAR, J.,]In the captioned 'Writ Petition' (hereinafter 'WP' for the sake of brevity), Mr.M.Anantharaj, learned counsel on record for writ petitioner is before us on the VC (video conferencing) platform.Page Nos.2/14 https://www.mhc.tn.gov.in/judis W.P.No.19505 of 20242. Learned counsel for petitioner submits that the writ petitioner has purchased a property at 'Door No.1/8, Plot No.4 in Survey No.573, Avadi Town Survey Field Register Extract RPT No.8812/12 as per T.S.No.16, Block No.83, Ward D, Thirumullaivoil Village, MTH Road, Manikandapuram, Thirumullaivoil, Ambattur Taluk, Now Avadi Taluk, Thiruvallur District' (hereinafter 'said property' for the sake of convenience and clarity) by way of a sale certificate dated 14.02.2023 under Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). A co-mortgagor filed a writ petition assailing the sale certificate and the same came to be disposed of by another Hon'ble Division Bench in and by an order dated 06.03.2024 making it clear that the Court cannot come to the aid of the mortgagor and that the mortgagor will be entitled to withdraw monies if deposited. This is vide order dated 06.03.2024 in W.P. No.7656 of 2023 made by another Hon'ble Division Bench and a scanned reproduction of the order is as follows:Page Nos.3/14 https://www.mhc.tn.gov.in/judis W.P.No.19505 of 2024Page Nos.4/14 https://www.mhc.tn.gov.in/judis W.P.No.19505 of 2024Page Nos.5/14 https://www.mhc.tn.gov.in/judis W.P.No.19505 of 2024Page Nos.6/14 https://www.mhc.tn.gov.in/judis W.P.No.19505 of 2024Page Nos.7/14 https://www.mhc.tn.gov.in/judis W.P.No.19505 of 2024Page Nos.8/14 https://www.mhc.tn.gov.in/judis W.P.No.19505 of 20243. To be noted, writ petitioner before us in the captioned matter is R2 in the earlier WP and R2 before us is R1 in the earlier WP. Learned counsel submits that R3 in the captioned WP has now encroached upon a public road blocking the writ petitioner's ingress and egress to aforementioned property purchased by writ petitioner by way of sale certificate.4. Issue notice to official respondent i.e., R1 (The Commissioner, Aavadi Corporation, Thiruvellore District, Chennai – 54).5. Mr.RA.Gopinath, learned standing counsel accepts notice for R1.6. Learned counsel for R1 on instructions submits that the writ petitioner has sent two representations one dated 16.03.2023 and another dated 29.05.2024 but whether the alleged encroachment is in public road or in private property is not clear. Therefore, Avadi Corporation has written to the jurisdictional Revenue Tahsildar seeking clarification in this regard i.e., clarification by conducting Page Nos.9/14 https://www.mhc.tn.gov.in/judis W.P.No.19505 of 2024survey. A copy of the communication dated 01.07.2024 in this regard placed before us by learned counsel for R1 is as follows:Page Nos.10/14 https://www.mhc.tn.gov.in/judis W.P.No.19505 of 20247. Learned counsel for R1 submits that if the encroachment is in a public place, proceedings under Section 128(1)(b) of 'The Tamil Nadu Urban Local Bodies Act, 1998' {hereinafter 'TNULB Act' for the sake of brevity} would be initiated.8. In the light of the narrative thus far, we find that the legal perimeter within which captioned WP should now perambulate has dwindled considerably. Therefore, with the consent of learned counsel for writ petitioner and learned counsel for R1, main WP is taken up. We are acutely conscious that R2 and R3 who are private respondents are not before us. Therefore, we also make it clear we would be mentioning infra about the safety valve qua R2 and R3.9. It is clear from the stand of R1 counsel that post survey by the jurisdictional Revenue Tahsildar, if alleged encroachment is in a public place, the removal of encroachment procedure under Section 128(1)(b) of TNULB Act would be kick started. A careful perusal of Section 128(1)(b) and proviso thereat of TNULB Act makes it clear that it provides for alleged encroachers to be made noticees, show caused giving seven days time. The proviso also provides for disposal Page Nos.11/14 https://www.mhc.tn.gov.in/judis W.P.No.19505 of 2024of any representation if received within the seven days period i.e., disposal before making final orders. Therefore, if the encroachment is by R2 and R3 (private respondents) or by any other person or entity, the person or entity shall be show caused in accordance with Section 128(1)(b) of TNULB Act. This is the safety valve which we are putting in qua private respondents i.e., R2 and R3. In this regard, we make it clear that all the rights and contentions of R2 and R3 are left open and obviously rights and contentions of other parties are also left open if proceedings under Section 128(1)(b) of TNULB Act are kick started. 10. R1 will do well to get a report from the jurisdictional Revenue Tahsildar and do the needful depending on the report as expeditiously as the business of R1 would permit. 11. Recording the stated position of R1, captioned WP is disposed of as closed. There shall be no order as to costs.(M.S.,J.)(K.G.T.,J.) 16.07.2024Index : Yes / NoNeutral Citation : Yes / NommiPage Nos.12/14 https://www.mhc.tn.gov.in/judis W.P.No.19505 of 2024ToThe Commissioner,Aavadi Corporation,Thiruvellore District,Chennai – 54.Page Nos.13/14 https://www.mhc.tn.gov.in/judis W.P.No.19505 of 2024M.SUNDAR, J.,andK.GOVINDARAJAN THILAKAVADI, J.,mmi W.P.No.19505 of 202416.07.2024Page Nos.14/14

W.P.No.19505 of 2024 Lakshminarayan, S/o.Govindarajan, No.1/8, Manikandapuram 4th Street, Thirumullaivoyal, Opposite Mangalam Wedding Hall, Chennai , Tamil Nadu – 600 062. ... RespondentsWrit Petition filed under Article 226 of The Constitution of India praying to issue a Writ of Mandamus directing the first respondent to remove the illegal encroachment of the third respondent in Survey Nos.7 and 12 situated at Plot No.4, Thirumullaivoyal Ward No.16, Block No.83, Survey No.16 (New) Survey No.12, Ward No.16, Avadi Taluk, Thiruvallur District and further directing the first respondent to consider the representations of the petitioner dated 16.03.2023 and 29.05.2024 within stipulated time fixed by this Court.For Petitioner : Mr.M.AnantharajFor Respondents:Mr.RA.Gopinath,Standing Counsel for R1 ORDER[Order of the Court was made by M.SUNDAR, J.,]In the captioned 'Writ Petition' (hereinafter 'WP' for the sake of brevity), Mr.M.Anantharaj, learned counsel on record for writ petitioner is before us on the VC (video conferencing) platform.Page Nos.2/14 https://www.mhc.tn.gov.in/judis W.P.No.19505 of 20242. Learned counsel for petitioner submits that the writ petitioner has purchased a property at 'Door No.1/8, Plot No.4 in Survey No.573, Avadi Town Survey Field Register Extract RPT No.8812/12 as per T.S.No.16, Block No.83, Ward D, Thirumullaivoil Village, MTH Road, Manikandapuram, Thirumullaivoil, Ambattur Taluk, Now Avadi Taluk, Thiruvallur District' (hereinafter 'said property' for the sake of convenience and clarity) by way of a sale certificate dated 14.02.2023 under Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). A co-mortgagor filed a writ petition assailing the sale certificate and the same came to be disposed of by another Hon'ble Division Bench in and by an order dated 06.03.2024 making it clear that the Court cannot come to the aid of the mortgagor and that the mortgagor will be entitled to withdraw monies if deposited. This is vide order dated 06.03.2024 in W.P. No.7656 of 2023 made by another Hon'ble Division Bench and a scanned reproduction of the order is as follows:Page Nos.3/14 https://www.mhc.tn.gov.in/judis W.P.No.19505 of 2024Page Nos.4/14 https://www.mhc.tn.gov.in/judis W.P.No.19505 of 2024Page Nos.5/14 https://www.mhc.tn.gov.in/judis W.P.No.19505 of 2024Page Nos.6/14 https://www.mhc.tn.gov.in/judis W.P.No.19505 of 2024Page Nos.7/14 https://www.mhc.tn.gov.in/judis W.P.No.19505 of 2024Page Nos.8/14 https://www.mhc.tn.gov.in/judis W.P.No.19505 of 20243. To be noted, writ petitioner before us in the captioned matter is R2 in the earlier WP and R2 before us is R1 in the earlier WP. Learned counsel submits that R3 in the captioned WP has now encroached upon a public road blocking the writ petitioner's ingress and egress to aforementioned property purchased by writ petitioner by way of sale certificate.4. Issue notice to official respondent i.e., R1 (The Commissioner, Aavadi Corporation, Thiruvellore District, Chennai – 54).5. Mr.RA.Gopinath, learned standing counsel accepts notice for R1.6. Learned counsel for R1 on instructions submits that the writ petitioner has sent two representations one dated 16.03.2023 and another dated 29.05.2024 but whether the alleged encroachment is in public road or in private property is not clear. Therefore, Avadi Corporation has written to the jurisdictional Revenue Tahsildar seeking clarification in this regard i.e., clarification by conducting Page Nos.9/14 https://www.mhc.tn.gov.in/judis W.P.No.19505 of 2024survey. A copy of the communication dated 01.07.2024 in this regard placed before us by learned counsel for R1 is as follows:Page Nos.10/14 https://www.mhc.tn.gov.in/judis W.P.No.19505 of 20247. Learned counsel for R1 submits that if the encroachment is in a public place, proceedings under Section 128(1)(b) of 'The Tamil Nadu Urban Local Bodies Act, 1998' {hereinafter 'TNULB Act' for the sake of brevity} would be initiated.8. In the light of the narrative thus far, we find that the legal perimeter within which captioned WP should now perambulate has dwindled considerably. Therefore, with the consent of learned counsel for writ petitioner and learned counsel for R1, main WP is taken up. We are acutely conscious that R2 and R3 who are private respondents are not before us. Therefore, we also make it clear we would be mentioning infra about the safety valve qua R2 and R3.9. It is clear from the stand of R1 counsel that post survey by the jurisdictional Revenue Tahsildar, if alleged encroachment is in a public place, the removal of encroachment procedure under Section 128(1)(b) of TNULB Act would be kick started. A careful perusal of Section 128(1)(b) and proviso thereat of TNULB Act makes it clear that it provides for alleged encroachers to be made noticees, show caused giving seven days time. The proviso also provides for disposal Page Nos.11/14 https://www.mhc.tn.gov.in/judis W.P.No.19505 of 2024of any representation if received within the seven days period i.e., disposal before making final orders. Therefore, if the encroachment is by R2 and R3 (private respondents) or by any other person or entity, the person or entity shall be show caused in accordance with Section 128(1)(b) of TNULB Act. This is the safety valve which we are putting in qua private respondents i.e., R2 and R3. In this regard, we make it clear that all the rights and contentions of R2 and R3 are left open and obviously rights and contentions of other parties are also left open if proceedings under Section 128(1)(b) of TNULB Act are kick started. 10. R1 will do well to get a report from the jurisdictional Revenue Tahsildar and do the needful depending on the report as expeditiously as the business of R1 would permit. 11. Recording the stated position of R1, captioned WP is disposed of as closed. There shall be no order as to costs.(M.S.,J.)(K.G.T.,J.) 16.07.2024Index : Yes / NoNeutral Citation : Yes / NommiPage Nos.12/14 https://www.mhc.tn.gov.in/judis W.P.No.19505 of 2024ToThe Commissioner,Aavadi Corporation,Thiruvellore District,Chennai – 54.Page Nos.13/14 https://www.mhc.tn.gov.in/judis W.P.No.19505 of 2024M.SUNDAR, J.,andK.GOVINDARAJAN THILAKAVADI, J.,mmi W.P.No.19505 of 202416.07.2024Page Nos.14/14