A.E. Ravichandran v. T.K. Saravanan

W.P. No.38988 of 2024Writ Petition filed under Article 226 of the Constitution of India seeking a writ of mandamus forbearing the respondents 1 to 5 from interfering with the petitioner's family property situated at Survey No.302/3, Poonamallee Village, Poonamallee Taluk, within Poonamallee Municipality, Thiruvallur District, measuring an extent of 1,200 sq. ft. unless otherwise by due process of law.For petitionerMr. A.E. RavichandranFor RR 1-3 & 5Mr. T.K. SaravananGovernment AdvocateFor R4Mr. M.S. ArunkumarGovernment AdvocateFor R8Mr. Raj ThilakAdditional Public ProsecutorORDER(made by M. SUNDAR, J.)Captioned main 'writ petition' ('WP' for the sake of brevity) has been filed complaining that respondents 1 to 5 are interfering with the writ petitioner's family property in Poonamallee Taluk situate in Poonamallee Municipality, Thiruvallur District. It is submitted that the property is in the form of a construction admeasuring 1,200 sq. ft. or thereabouts.2/15 https://www.mhc.tn.gov.in/judis W.P. No.38988 of 20242.Mr. A.E. Ravichandran, learned counsel for writ petitioner, submits that official respondents have descended on writ petitioner's property with bulldozers, the writ petitioner and his family are under imminent threat of dispossession, under pain of such dispossession, captioned main WP has been filed is his further say.3.Issue notice to official respondents, viz., RR 1 to 5 and 8. 4.Mr. T.K. Saravanan, learned Government Advocate, accepts notice for RR 1 to 3 and 5. Mr. M.S. Arunkumar, learned Government Advocate, accepts notice for R4. Mr. Raj Thilak, learned Additional Public Prosecutor, accepts notice for R8.5.Learned State counsel for RR 1 to 3 and 5 draws our attention to the typed set of papers filed by the writ petitioner and more particularly, a 'notice issued by R4 (signed by R4 on 31.01.2024)' ('said notice' for the sake of clarity and convenience). A scanned reproduction of said notice is as follows:3/15 https://www.mhc.tn.gov.in/judis W.P. No.38988 of 20244/15 https://www.mhc.tn.gov.in/judis W.P. No.38988 of 20246.Learned State counsel submits that the writ petitioner has been put on notice.7.We carefully perused Section 128 of Tamil Nadu Urban Local Bodies Act, 1998 ('TNULB Act' for the sake of brevity) which 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 or public place or the land belonging to or vested with the municipality within the municipal limit;(b)remove any immovable structure whether permanent or of temporary nature encroaching the street or public place or the land belonging to 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;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 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 extent to three years and with fine which may extend to fifty thousand rupees:5/15 https://www.mhc.tn.gov.in/judis W.P. No.38988 of 2024Provided 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.'8.Section 128(1)(b) of TNULB Act deals with power of R4 to remove encroachment from a public place when the encroachment is in the form of an immovable structure. Sub-section (2) of Section 128 talks about the punishment for such encroachment.9.As regards said notice, we notice the following points:i.Section 128(1)(b) and Section 128(2) have been rolled into one and a common notice has been issued;ii.Section 128(1)(b) envisages the noticee being show caused. In other words, Section 128(1)(b) envisages a 'show cause notice' ('SCN' for the sake of brevity) but said notice, instead of show causing the writ petitioner, has straightaway directed the writ petitioner to remove the alleged encroachment within 7 days;iii.Notwithstanding the language in which said notice is couched, the writ petitioner has sent a representation dated 03.02.2024 making it clear that it is 6/15 https://www.mhc.tn.gov.in/judis W.P. No.38988 of 2024a reply/representation to said notice.10.Response to SCN dated 03.02.2024 from the writ petitioner reads as follows:7/15 https://www.mhc.tn.gov.in/judis W.P. No.38988 of 20248/15 https://www.mhc.tn.gov.in/judis W.P. No.38988 of 20249/15 https://www.mhc.tn.gov.in/judis W.P. No.38988 of 202410/15 https://www.mhc.tn.gov.in/judis W.P. No.38988 of 202411/15 https://www.mhc.tn.gov.in/judis W.P. No.38988 of 202411.This Court, having noticed the three points alluded to in paragraph 9, supra, is of the view that ends of justice would be served if the said notice is directed to be treated as a SCN and the aforereferred 03.02.2024 response of writ petitioner to the same, be treated as a representation with a further directive to R4 to pass final orders vide proviso to Section 128(1)(b). We do so.12.This Court also makes it clear that further action (if any and if that be so) shall be subject to and depending upon the 12/15 https://www.mhc.tn.gov.in/judis W.P. No.38988 of 2024outcome of the final orders which R4 has to make in the aforesaid manner. This is the safety valve which we have put in and we are also ensuring that the procedure is brought within the perimeter of the procedure prescribed under the local municipal law, i.e., TNULB Act.13.Captioned WP is disposed of as closed albeit by writing that said notice signed by R4 on 31.01.2024 is treated as a SCN and the writ petitioner's response dated 03.02.2024 is treated as response to SCN and R4 shall now pass final orders considering the representation of the writ petitioner and this is in accordance with proviso to Section 128(1)(b) of TNULB Act. As already alluded to in paragraph 12, supra, further action (if any and if that be so) will be subject to and will depend on final orders to be made by R4. Consequently, captioned W.M.P. thereat is also disposed of as closed. There shall be no order as to costs.(M.S., J.) (K.R.S., J.)18.12.2024Index : Yes/NoNC: Yes/Nocad13/15 https://www.mhc.tn.gov.in/judis W.P. No.38988 of 2024To:1.The District CollectorThiruvallur DistrictThiruvallur2.The District Revenue OfficerDistrict Collector CampusThiruvallur DistrictThiruvallur3.The Revenue Divisional OfficerThiruvallur DivisionThiruvallur4.The Municipal CommissionerPoonamallee MunicipalityPoonamalleeChennai 600 0565.The TahsildarPoonamallee TalukPoonamalleeChennai 600 0566.The Inspector of PoliceT12, Poonamallee Police StationPoonamallee, Chennai 600 05614/15 https://www.mhc.tn.gov.in/judis W.P. No.38988 of 2024M. SUNDAR, J.andK. RAJASEKAR, J.cadW.P. No.38988 of 202418.12.202415/15

W.P. No.38988 of 2024Writ Petition filed under Article 226 of the Constitution of India seeking a writ of mandamus forbearing the respondents 1 to 5 from interfering with the petitioner's family property situated at Survey No.302/3, Poonamallee Village, Poonamallee Taluk, within Poonamallee Municipality, Thiruvallur District, measuring an extent of 1,200 sq. ft. unless otherwise by due process of law.For petitionerMr. A.E. RavichandranFor RR 1-3 & 5Mr. T.K. SaravananGovernment AdvocateFor R4Mr. M.S. ArunkumarGovernment AdvocateFor R8Mr. Raj ThilakAdditional Public ProsecutorORDER(made by M. SUNDAR, J.)Captioned main 'writ petition' ('WP' for the sake of brevity) has been filed complaining that respondents 1 to 5 are interfering with the writ petitioner's family property in Poonamallee Taluk situate in Poonamallee Municipality, Thiruvallur District. It is submitted that the property is in the form of a construction admeasuring 1,200 sq. ft. or thereabouts.2/15 https://www.mhc.tn.gov.in/judis W.P. No.38988 of 20242.Mr. A.E. Ravichandran, learned counsel for writ petitioner, submits that official respondents have descended on writ petitioner's property with bulldozers, the writ petitioner and his family are under imminent threat of dispossession, under pain of such dispossession, captioned main WP has been filed is his further say.3.Issue notice to official respondents, viz., RR 1 to 5 and 8. 4.Mr. T.K. Saravanan, learned Government Advocate, accepts notice for RR 1 to 3 and 5. Mr. M.S. Arunkumar, learned Government Advocate, accepts notice for R4. Mr. Raj Thilak, learned Additional Public Prosecutor, accepts notice for R8.5.Learned State counsel for RR 1 to 3 and 5 draws our attention to the typed set of papers filed by the writ petitioner and more particularly, a 'notice issued by R4 (signed by R4 on 31.01.2024)' ('said notice' for the sake of clarity and convenience). A scanned reproduction of said notice is as follows:3/15 https://www.mhc.tn.gov.in/judis W.P. No.38988 of 20244/15 https://www.mhc.tn.gov.in/judis W.P. No.38988 of 20246.Learned State counsel submits that the writ petitioner has been put on notice.7.We carefully perused Section 128 of Tamil Nadu Urban Local Bodies Act, 1998 ('TNULB Act' for the sake of brevity) which 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 or public place or the land belonging to or vested with the municipality within the municipal limit;(b)remove any immovable structure whether permanent or of temporary nature encroaching the street or public place or the land belonging to 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;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 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 extent to three years and with fine which may extend to fifty thousand rupees:5/15 https://www.mhc.tn.gov.in/judis W.P. No.38988 of 2024Provided 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.'8.Section 128(1)(b) of TNULB Act deals with power of R4 to remove encroachment from a public place when the encroachment is in the form of an immovable structure. Sub-section (2) of Section 128 talks about the punishment for such encroachment.9.As regards said notice, we notice the following points:i.Section 128(1)(b) and Section 128(2) have been rolled into one and a common notice has been issued;ii.Section 128(1)(b) envisages the noticee being show caused. In other words, Section 128(1)(b) envisages a 'show cause notice' ('SCN' for the sake of brevity) but said notice, instead of show causing the writ petitioner, has straightaway directed the writ petitioner to remove the alleged encroachment within 7 days;iii.Notwithstanding the language in which said notice is couched, the writ petitioner has sent a representation dated 03.02.2024 making it clear that it is 6/15 https://www.mhc.tn.gov.in/judis W.P. No.38988 of 2024a reply/representation to said notice.10.Response to SCN dated 03.02.2024 from the writ petitioner reads as follows:7/15 https://www.mhc.tn.gov.in/judis W.P. No.38988 of 20248/15 https://www.mhc.tn.gov.in/judis W.P. No.38988 of 20249/15 https://www.mhc.tn.gov.in/judis W.P. No.38988 of 202410/15 https://www.mhc.tn.gov.in/judis W.P. No.38988 of 202411/15 https://www.mhc.tn.gov.in/judis W.P. No.38988 of 202411.This Court, having noticed the three points alluded to in paragraph 9, supra, is of the view that ends of justice would be served if the said notice is directed to be treated as a SCN and the aforereferred 03.02.2024 response of writ petitioner to the same, be treated as a representation with a further directive to R4 to pass final orders vide proviso to Section 128(1)(b). We do so.12.This Court also makes it clear that further action (if any and if that be so) shall be subject to and depending upon the 12/15 https://www.mhc.tn.gov.in/judis W.P. No.38988 of 2024outcome of the final orders which R4 has to make in the aforesaid manner. This is the safety valve which we have put in and we are also ensuring that the procedure is brought within the perimeter of the procedure prescribed under the local municipal law, i.e., TNULB Act.13.Captioned WP is disposed of as closed albeit by writing that said notice signed by R4 on 31.01.2024 is treated as a SCN and the writ petitioner's response dated 03.02.2024 is treated as response to SCN and R4 shall now pass final orders considering the representation of the writ petitioner and this is in accordance with proviso to Section 128(1)(b) of TNULB Act. As already alluded to in paragraph 12, supra, further action (if any and if that be so) will be subject to and will depend on final orders to be made by R4. Consequently, captioned W.M.P. thereat is also disposed of as closed. There shall be no order as to costs.(M.S., J.) (K.R.S., J.)18.12.2024Index : Yes/NoNC: Yes/Nocad13/15 https://www.mhc.tn.gov.in/judis W.P. No.38988 of 2024To:1.The District CollectorThiruvallur DistrictThiruvallur2.The District Revenue OfficerDistrict Collector CampusThiruvallur DistrictThiruvallur3.The Revenue Divisional OfficerThiruvallur DivisionThiruvallur4.The Municipal CommissionerPoonamallee MunicipalityPoonamalleeChennai 600 0565.The TahsildarPoonamallee TalukPoonamalleeChennai 600 0566.The Inspector of PoliceT12, Poonamallee Police StationPoonamallee, Chennai 600 05614/15 https://www.mhc.tn.gov.in/judis W.P. No.38988 of 2024M. SUNDAR, J.andK. RAJASEKAR, J.cadW.P. No.38988 of 202418.12.202415/15