Madrasdated High Court · 2025

W.P.Nos.26338 & 26345 of 2025 Standing Counsel for TNUHDB for R4 Mr.E.C.Ramesh, Standing Counsel for GCC for R2 & R3W.P.No.26345 of 2025V.Rani...Petitionervs.1. The Tamil Nadu Local Bodies Ombudsmen, O/o. TN Local Bodies Ombudsmen, 100, Anna Salai, Guindy, Chennai – 600 032.2. The Greater Chennai Corporation, Rep. By its Commissioner, Ribbon Building, Chennai – 600 003.3. The Assistant Executive Engineer, Unit 16, Zone VI, Greater Chennai Corporation, Jawahar Nagar, Peravallur, Chennai – 600 082.4. Tamil Nadu Urban Habitat Development Board rep. By its Chairman, Kamarajar Salai, Chennai – 600 005.5. The Tahsildar, Ayanavaram Taluk, Chennai – 600 102. Page Nos.3/28 https://www.mhc.tn.gov.in/judis W.P.Nos.26338 & 26345 of 20256. S. Venugopal...RespondentsWrit 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 impugned orders (i) Order No.214/Maa/2023, dated 12.09.2023 passed by the 1st respondent and (ii) ZOC.No.0819/3/2023 dated 31.10.2023 (iii) order dated 12.07.2025 passed by the 3rd respondent, quash the same and consequently forbear the respondents from interfering with petitioner's property right measuring 543 sq.ft in Plot No.1539, TS No.3, Block 32, Venkatesan Road, Pappammal 12th Street, GKM Colony, Peravellore, Chennai – 82.For Petitioner: Mr. N.ManokaranFor Respondents : Mr.T.K.Saravanan Additional Govt. Pleader for R1 & R5 Mr.B.Balaji, for Mr.S.Karthikeyan Standing Counsel for TNUHDB for R4 Mr.E.C.Ramesh, Standing Counsel for GCC for R2 & R3COMMON ORDER[Order of the Court was made by M.SUNDAR, J.]As regards captioned writ petition in 'W.P.No.26338 of 2025' [hereinafter 'I WP' for the sake of convenience], the subject matter is Page Nos.4/28 https://www.mhc.tn.gov.in/judis W.P.Nos.26338 & 26345 of 2025'property at Plot No.1562, Lal Bagadur Sastri 11th Street, GKM Colony, Peravellur, Chennai 82' [hereinafter 'I said property' for the sake of brevity and convenience]. As regards captioned writ petition in 'W.P.No.26345 of 2025' [hereinafter 'II WP' for the sake of brevity and convenience], the subject matter is ' property at Plot No.1539, TS No.3, Block 32, Venkatesan Road, Pappammal 12th Street, GKM Colony, Peravellore, Chennai – 82' [hereinafter 'II said property' for the sake of convenience].2. Mr.N.Manokaran, learned counsel for writ petitioners in both captioned main WPs, submits that the factual matrix is largely similar as regards the captioned two main WPs with only one difference and that difference is, as regards I WP, there is a judgment and decree of a civil Court dated 17.07.2012 made in O.S.No.4099 of 1997 on the file of VII Assistant Judge's Court, City Civil Court, Chennai (incharge of XI Assistant Court) but there is no civil Court decree in II WP. According to learned counsel, the civil Court decree is relevant as regards I WP is concerned.3. Short facts are that R6 moved the Tamil Nadu Local Bodies Ombudsman under 'the Tamil Nadu Urban Local Bodies Ombudsman Act, 2014 (27 of 2014)' [hereinafter 'Ombudsman Act' for the sake of Page Nos.5/28 https://www.mhc.tn.gov.in/judis W.P.Nos.26338 & 26345 of 2025convenience] and the Ombudsman made a 'common order dated 12.09.2023 bearing reference Miz vz;:214/kh/2023' [hereinafter 'Ombudsman order' for the sake of convenience]; that thereafter R6 filed W.P.No.17039 of 2025 in this Court (without arraying the writ petitioners herein as respondents) and sought implementation of the Ombudsman order; that this writ petition came to be disposed of by another Division Bench to which one of us (M.Sundar.,J.) was a party in and by an order dated 09.06.2025; that at the time of disposal of this writ petition, learned Standing counsel for 'Greater Chennai Corporation' ['GCC' for the sake of brevity] did not bring to the notice of this Court that proceedings for 'Removal of Encroachment' ['RoE'] have already been commenced by issue of notices 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); that the notices under TNULB Act are both dated 31.10.2023 with references ZOC.No.0819/1/2023 and ZOC.No.0819/3/2023' [hereinafter 'impugned notices' for the sake of convenience]; that noticees / writ petitioners have responded to the impugned notices on 06.11.2023 but no orders have been made by the Commissioner under proviso to Section 128 (1)(b) of TNULB Page Nos.6/28 https://www.mhc.tn.gov.in/judis W.P.Nos.26338 & 26345 of 2025Act; that under such circumstances, the writ petitioners have been visited with a 'communication from R3 signed on 12.07.2025' [hereinafter 'impugned orders' for the sake of convenience] calling upon the writ petitioners to remove alleged encroachments in three days.4. Learned counsel for writ petitioners submits that there is a jurisdictional issue qua impugned notices as the same have not been issued by the Commissioner and as regards the impugned orders also, there is a jurisdictional issue as the same has been made by R3.5. In the light of the jurisdictional issue raised by learned counsel for writ petitioners, issue notice to official respondents. 6. Mr.T.K.Saravanan, learned Additional Government Pleader accepts notice for R1 and R5, Mr.B.Balaji, learned counsel representing Mr.S.Karthikeyan, learned Standing counsel for TNUHD Board accepts notice for R4 and Mr.E.C.Ramesh, learned Standing counsel for GCC accepts notice for R2 and R3.7. Learned Standing counsel for GCC submits that as regards the jurisdictional point raised by the writ petitioners, the same is covered by Nikhil Banthia case i.e., order dated 05.03.2025 made in W.P.No.7529 of Page Nos.7/28 https://www.mhc.tn.gov.in/judis W.P.Nos.26338 & 26345 of 20252025 to which one of us (M.Sundar.J.,) was a party, which has to be read along with ATR recorded on 26.03.2025. Nikhil Banthia order and the ATR addenda thereat are as follows:Page Nos.8/28 https://www.mhc.tn.gov.in/judis W.P.Nos.26338 & 26345 of 2025Page Nos.9/28 https://www.mhc.tn.gov.in/judis W.P.Nos.26338 & 26345 of 2025Page Nos.10/28 https://www.mhc.tn.gov.in/judis W.P.Nos.26338 & 26345 of 2025Page Nos.11/28 https://www.mhc.tn.gov.in/judis W.P.Nos.26338 & 26345 of 2025Page Nos.12/28 https://www.mhc.tn.gov.in/judis W.P.Nos.26338 & 26345 of 2025Page Nos.13/28 https://www.mhc.tn.gov.in/judis W.P.Nos.26338 & 26345 of 2025Page Nos.14/28 https://www.mhc.tn.gov.in/judis W.P.Nos.26338 & 26345 of 2025Page Nos.15/28 https://www.mhc.tn.gov.in/judis W.P.Nos.26338 & 26345 of 2025Page Nos.16/28 https://www.mhc.tn.gov.in/judis W.P.Nos.26338 & 26345 of 2025Page Nos.17/28 https://www.mhc.tn.gov.in/judis W.P.Nos.26338 & 26345 of 2025Page Nos.18/28 https://www.mhc.tn.gov.in/judis W.P.Nos.26338 & 26345 of 2025Page Nos.19/28 https://www.mhc.tn.gov.in/judis W.P.Nos.26338 & 26345 of 2025Page Nos.20/28 https://www.mhc.tn.gov.in/judis W.P.Nos.26338 & 26345 of 2025Page Nos.21/28 https://www.mhc.tn.gov.in/judis W.P.Nos.26338 & 26345 of 20258. In the case on hand, we do notice that a postal receipt has been pasted / stuck on the right hand side bottom of the impugned notices. Therefore, it is not clear as to whether the jurisdictional Regional Deputy Commissioner has signed the impugned notices or not. The other signatories do not qualify as delegatees qua the delegation made by Commissioner under TNULB Act with regard to Section 128. Therefore, the impugned notices deserve to be dislodged on jurisdictional point. Likewise the impugned orders also deserve to be dislodged on jurisdictional point applying Nikhil Banthia principle as proviso to Section 128(1)(b) of TNULB Act is clear that the order has to be made only by the 'Commissioner', which is a term of art i.e., a term defined vide Section 2(7) of TNULB Act.9. The sequitur of the discussion and dispositive reasoning set out thus far is that the impugned notices and impugned orders deserve to be dislodged/quashed.Page Nos.22/28 https://www.mhc.tn.gov.in/judis W.P.Nos.26338 & 26345 of 202510. Before we do that, we find that this order can be made without impacting the rights and contentions of private respondent (R6). Therefore, we dispense with notice to R6 and take up the main WPs with the consent of learned counsel on both sides.11. Ergo, as a sequitur, the following order is made:(i) Impugned notices both dated 31.10.2023 with references ZOC.No.0819/1/2023 and ZOC.No.0819/3/2023 are quashed by issue of writ of certiorari;(ii) Impugned orders dated 12.07.2025 are also quashed;(iii) It is made clear that impugned notices and impugned orders are quashed on jurisdictional point inter alia applying Nikhil Banthia principle and they have not been quashed on merits;(iv) The corollary to the previous points in this operative portion of this order is, the rights and contentions of GCC are preserved for issuing notices under Section 128 of TNULB Act afresh by Competent Authority. If notices are issued afresh by Page Nos.23/28 https://www.mhc.tn.gov.in/judis W.P.Nos.26338 & 26345 of 2025GCC, all the rights and contentions of noticees shall stand preserved for sending response afresh for being considered under proviso to Section 128 (1)(b) of TNULB Act;(v) In the light of the peculiar facts and circumstances of the case on hand as learned counsel for GCC has unfortunately not brought to our notice about Section 128 notices when the previous order was made, if GCC resorts to issuing fresh notices by competent authority, the notices shall be sent to the writ petitioners and a copy shall be marked to R6 giving opportunity to R6 to send a representation. Proviso to Section 128(1)(b) refers to 'any representation' and therefore, if R6 sends a representation, that also shall be considered by Commissioner while making 'final orders' vide proviso to Section 128 (1)(b). The orders thus made by the Commissioner shall be served on the writ petitioners and R6 within five working days under due acknowledgement;(vi) As the certiorari limb has been acceded to by resorting to jurisdictional point, we leave open the mandamus limb as that Page Nos.24/28 https://www.mhc.tn.gov.in/judis W.P.Nos.26338 & 26345 of 2025will touch upon the matter on merits. All questions are left open in this regard, if fresh proceedings are initiated;(vii) Coercive action, if any and if that be so, shall only subject to the proceedings afresh in the aforesaid manner and final orders under proviso to Section 128(1)(b) to be made by the Commissioner; (viii) If orders to be made by the Commissioner in the aforesaid manner are adverse to the writ petitioners i.e., if there is going to be RoE, the order shall be kept in abeyance for a fortnight to enable the persons concerned to seek judicial review and if that not be so, that will be curtains on the matter;(ix) As the Ombudsman orders dated 12.09.2023 have been served on the writ petitioner only on 14.07.2025, we make it clear that if writ petitioners desire to assail the Ombudsman order and seek judicial review, this order will neither impede nor serve as an impetus for the same;Page Nos.25/28 https://www.mhc.tn.gov.in/judis W.P.Nos.26338 & 26345 of 2025Captioned WPs are partly allowed in the aforesaid manner. In the light of what we have observed with regard to coercive action, captioned WMPs become otiose and the same are disposed of as closed. There shall be no order as to costs.(M.S.,J.) (H.C.,J.)18.07.2025Index: Yes/NoNeutral Citation: Yes/NoSpeaking order/Non-speaking ordergpaPage Nos.26/28 https://www.mhc.tn.gov.in/judis W.P.Nos.26338 & 26345 of 2025To 1. The Tamil Nadu Local Bodies Ombudsmen, O/o. TN Local Bodies Ombudsmen, 100, Anna Salai, Guindy, Chennai – 600 032.2. The Greater Chennai Corporation, Rep. By its Commissioner, Ribbon Building, Chennai – 600 003.3. The Assistant Executive Engineer, Unit 16, Zone VI, Greater Chennai Corporation, Jawahar Nagar, Peravallur, Chennai – 600 082.4. Tamil Nadu Urban Habitat Development Board rep. By its Chairman, Kamarajar Salai, Chennai – 600 005.5. The Tahsildar, Ayanavaram Taluk, Chennai – 600 102. Page Nos.27/28 https://www.mhc.tn.gov.in/judis W.P.Nos.26338 & 26345 of 2025M.SUNDAR, J.andHEMANT CHANDANGOUDAR, J.gpaW.P.Nos.26338 & 26345 of 202518.07.2025Page Nos.28/28