Back
2017 Supreme(Mad) 2332
IN THE HIGH COURT OF JUDICATURE AT MADRAS
S. VAIDYANATHAN, J.
K. Santhi – Petitioner
Versus
The Commissioner, Madurantakam Municipality – Respondent
W.P. No. 37077 of 2003
Decided On : 10-08-2017
For the Petitioner: Mr. M.S. Subramanian.
For the Respondents: Mr. R. Chandrasekaran, Mr. Akhil Akbar Ali, Mr. N. Nagu Shah.
The central legal point established in the judgment is the duty of the Municipality to remove encroachments on public streets as per the Tamil Nadu Municipal Act, supported by a Full Bench decision on encroachments on public land.
Headnote:
Encroachment - Public Street - Tamil Nadu Municipal Act, Section 61, Section 180, Section 182 - Full Bench decision of the Madurai Bench of the Court - [1950 sq. ft. Plot purchased by petitioner in approved lay out, encroachment by legal representatives of Subbarayan, duty of Municipality to remove encroachments, legal provisions under Tamil Nadu Municipal Act, Full Bench decision on encroachments on public land]
Fact of the Case:
The petitioner sought a direction to remove encroachment in front of her house by the legal representatives of Subbarayan. The petitioner purchased a plot in an approved layout and faced encroachment issues. The Municipality failed to take action, leading to the petitioner filing a Writ Petition.
Finding of the Court:
The court found that the encroachment on the public street was the duty of the Municipality to remove. The court directed the Municipality to survey and demolish the encroached portion within 45 days. Non-compliance would result in disciplinary action against responsible staff.
Issues: Encroachment on public street, duty of Municipality, legal provisions under Tamil Nadu Municipal Act, non-compliance with court orders
Ratio Decidendi: The court relied on the Tamil Nadu Municipal Act, particularly Section 61, Section 180, and Section 182, and referenced a Full Bench decision on encroachments on public land to support its decision.
Final Decision: The Writ Petition was allowed, and the Municipality was directed to remove the encroachment within 45 days. The District Collector and Superintendent of Police were instructed to support the removal. No costs were awarded.
1. The petitioner has come up with this Writ Petition seeking a direction to the 1st respondent to immediately remove the encroachment in front of his house in Santhai Street, also known as Mandapam Street, put up by one Subbarayan alias Pillaiyar, whose legal representatives are Pachaiammal and Chellappa, the 3rd and 4th respondents herein.
2. According to the petitioner, he purchased Plot No. 5 measuring an extent of 1950 sq. ft. in Nanja Survey No. 965 out of 57 cents from K.V. Kuppusamy S/o Varadarajan vide registered Sale Deed dated 10.02.1992. The Plot is situated in an approved lay out sanctioned by the Director of Town and Country Planning vide Sanction No. 44/90. She further submitted that she had applied for building permit vide B.A. No. 32/2000 and 33/2000 on 07.09.2000 and has put up construction and completed the same. She also obtained necessary service connection from the Tamil Nadu Electricity Board for the said property and the said property has been assessed to House Tax.
3. The case of the petitioner is that one Elumalai and one Venkatasamy put up thatched huts in front of her plot and hence, her vendor viz. Kuppusamy filed a suit in O.S. No. 391/1989 on the file of the District Munsif Court, Madurantakam for mandatory injunction to remove the superstructure and the suit was decreed on 27.07.1975. Hence, aggrieved by the same, the defendants went on appeal in A.S. No. 22/1995 on the file of the Sub Court, Chengalpet, which was dismissed on 23.01.1996. Challenging the same, the defendants preferred an appeal before this Court in S.A. No. 1027 of 1996 and the same is pending.
4. It is the further case of the petitioner that one Subbarayan alias Pillaiyar had encroached upon the road portion in S. No. 964 and had put up a superstructure in front of her house, which is south of transformer and hence, she was constrained to file O.S. No. 420 of 1997 for mandatory injunction for removing the superstructure. In the said suit, the said Subbarayan contended that the lands on which he had put up superstructure is a Municipal Poramboke and therefore, only the Municipality could evict him under due process of law. Since the said Subbarayan died, the petitioner has impleaded the former's wife, Pachaiammal and his son, Chellappa, as his legal representatives.
5. It is the contention of the petitioner that S. No. 964 in Santhai Street alias Mandapam Street is a public street under the control of Madurantakam Municipality and it is the bounden duty of the Municipality to provide access from the road to her house. The petitioner further submitted that the Building Inspector made spot inspection on 10.05.2000 and he gave a Report that the encroachments should be removed. Despite repeated requests, since the Municipality did not care to take further action in this matter and remove encroachments on the public street, having no other alternative, the petitioner is before this Court.
6. Learned counsel for the petitioner submitted that one Subbarayan, had encroached the road portion in S. No. 964 and had put up a superstructure in front of the petitioner's house and since the said Subbarayan is no more, his legal heirs are arrayed as respondents 3 and 4 in this Writ Petition. He further submitted that he also sent an intimation to his client, i.e. the petitioner as regards the case on hand, but the same has been returned. According to the learned counsel, he could not know the whereabouts of the petitioner.
7. Learned counsel appearing for the 1st respondent/Municipality submitted that the 1st respondent/Commissioner of Madurantakam Municipality appeared before this Court on 10.08.2017 as per the order passed by this Court. According to the learned counsel, respondents 3 and 4 are encroachers and that they got an interim order in their favour in O.S. No. 420 of 1997 and that is the reason no encroachments could be removed.
8. Learned counsel appearing for respondents 3 and 4 submitted that the suit in O.S. No. 420 of 1997 was fi
