High Court · 2025

W.P.No.22596 of 2024IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 27.06.2025CORAMTHE HONOURABLE MR.JUSTICE M.SUNDAR andTHE HONOURABLE MR.JUSTICE HEMANT CHANDANGOUDARW.P.No.22596 of 2024andW.M.P.No.24620 of 2024G.VenkatkumarS/o.Govindaraj... Petitionervs.1.The CommissionerMaraimalaingar MunicipalityMaraimalainagarChengalpattu District.2.D.MaranS/o.Devaraj... RespondentsWrit Petition filed under Article 226 of the Constitution of India seeking a Writ of Certiorari, calling for the records relating to the order passed by the first respondent in Na.Ka.No.2383/2024/F1-1 dated 16.07.2024 and quash the same.Page Nos.1/10https://www.mhc.tn.gov.in/judis https://www.mhc.tn.gov.in/judis W.P.No.22596 of 2024For Petitioner :Mr.G.MageshkumarFor Respondents:Mr.T.K.SaravananAdditional Government Pleader, representing Mr.K.Tippu Sultan, for R1R2 - Served - No Appearance*****O R D E R[Order of the Court was made by M.SUNDAR J.]Captioned main 'Writ Petition' {hereinafter 'WP' for the sake of brevity} has been filed assailing a 'notice dated 16.07.2024 bearing reference Na.Ka.No.2383/2024/F1-1 issued by R1' {hereinafter 'impugned notice' for the sake of brevity}.2. Mr.G.Magesh Kumar, learned counsel on record for writ petitioner, who is before us drew our attention to the aforementioned impugned notice and a scanned reproduction of the same as placed before us is as follows:Page Nos.2/10https://www.mhc.tn.gov.in/judis https://www.mhc.tn.gov.in/judis W.P.No.22596 of 2024Page Nos.3/10https://www.mhc.tn.gov.in/judis https://www.mhc.tn.gov.in/judis W.P.No.22596 of 20243. Notwithstanding very many grounds and myriad averments in the support writ affidavit, learned counsel for writ petitioner predicated his campaign against the impugned notice on one point and that one point is, the impugned notice directly calls upon the noticee (writ petitioner) to remove what according to R1 is an encroachment without show causing the writ petitioner.4. Mr.T.K.Saravanan, learned Additional Government Pleader for R1 is before us. 5. Learned State counsel submits, on instructions, that the impugned notice has been issued under Section 128 of 'Tamil Nadu Urban Local Bodies Act, 1998 (Tamil Nadu Act 9 of 1999)' {hereinafter 'TNULB Act' for the sake of brevity}.6. Learned counsel for writ petitioner submits that the impugned notice was affixed in the premises which according to R1 is offending Page Nos.4/10https://www.mhc.tn.gov.in/judis https://www.mhc.tn.gov.in/judis W.P.No.22596 of 2024construction on 22.07.2024 and writ petitioner noticee has sent a response dated 27.07.2024 through his counsel. Section 128 of TNULB Act 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 resources 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.5/10https://www.mhc.tn.gov.in/judis https://www.mhc.tn.gov.in/judis W.P.No.22596 of 20247. There is no disputation that the alleged offending construction is an 'immovable structure' and therefore, Section 128(1)(b) of TNULB Act together with proviso thereat comes into play.8. In the light of the narrative thus far, we find that the captioned main WP stands vastly descoped. In other words, legal perimeter within which the captioned main WP should now perambulate has dwindled vastly. Therefore, with the consent of learned counsel on both sides, main WP was taken up. We find that R2 has been served, name of R2 together with full address is duly shown in the cause list but there is no representation. Cause list shows that R2 has entered appearance through counsel [Mr.R.Mani Barathi] whose name is shown in the cause list but with remark (Vakalat returned). A scanned reproduction of the cause list is as follows:Page Nos.6/10https://www.mhc.tn.gov.in/judis https://www.mhc.tn.gov.in/judis W.P.No.22596 of 20249. We make it clear that all rights and contentions of R2 will remain preserved about which there is allusion again infra. Be that as it may, proviso to Section 128(1)(b) of TNULB Act uses the expression 'any representation'. Therefore, we make it clear that if R2 chooses to send any representation within 15 days from today i.e., on or before 11.07.2025, the same also shall be considered by R1 before making final orders vide proviso to Section 128(1)(b) of TNULB Act.10. Reverting to the lone point on which the campaign against the impugned notice is predicated, as the writ petitioner has responded to the impugned notice, we deem it appropriate to say that 'impugned notice' shall be treated as 'Show Cause Notice' {'SCN'} and response of writ petitioner dated 27.07.2024 shall be treated as cause shown. This satisfies the requirement under Section 128(1)(b) of TNULB Act. Likewise, R2 shall be favoured with a copy of impugned notice forthwith and if R2 sends any representation within the specified fifteen days window i.e., within fifteen days, the same shall be considered by R1 before making final orders which is in tune with proviso to Section 128(1)(b) of TNULB Act. In this regard, all questions are left open and all rights and contentions of R2 are preserved Page Nos.7/10https://www.mhc.tn.gov.in/judis https://www.mhc.tn.gov.in/judis W.P.No.22596 of 2024for sending a representation. This aspect of the order covers the requirement under Section 128(1)(b) of TNULB Act and also puts in a safety valve qua R2 (private respondent), who is not before us. To be noted, there is an allusion about the safety valve supra.11. In the light of the narrative thus far, as impugned notice is now treated as SCN and SCN has been responded to i.e., cause shown by writ petitioner vide 27.07.2024 communication through his counsel, R1 shall proceed in accordance with law and on the merits of the matter i.e., on the basis of the merits of the cause shown with a rider that representation, if any, from R2 shall be considered vide proviso to Section 128(1)(b) of TNULB Act and proceedings shall be concluded as expeditiously as the official business of R1 would permit. We make it clear that when we say that the proceedings shall be concluded, it includes either dropping proceedings accepting cause shown or carrying the matter to its logical end of removal of encroachment and as we have not expressed any view or opinion on the merits of the matter, it would be solely on the merits of the writ petitioner's response to SCN and in accordance with law. For this purpose, all rights and contentions of both sides, (including R2 as already alluded to supra) are Page Nos.8/10https://www.mhc.tn.gov.in/judis https://www.mhc.tn.gov.in/judis W.P.No.22596 of 2024left open and all questions are left open. All rights are preserved in this regard.Captioned WP disposed of in the aforementioned manner with observations set out supra and with preservation of rights in the aforementioned manner. Consequently, captioned Writ Miscellaneous Petition is disposed of as closed. There shall be no order as to costs.(M.S.J.,)(H.C.J.,) 27.06.2025Index : Yes / NoNeutral Citation : Yes / NoSpeaking / Non-speakingmkToThe CommissionerMaraimalaingar MunicipalityMaraimalainagarChengalpattu District.Page Nos.9/10https://www.mhc.tn.gov.in/judis https://www.mhc.tn.gov.in/judis W.P.No.22596 of 2024M.SUNDAR, J.,andHEMANT CHANDANGOUDAR, J.,mkW.P.No.22596 of 202427.06.2025(2/2)Page Nos.10/10https://www.mhc.tn.gov.in/judis