The authority can validly remove encroachments after issuing show cause notices, and petitioners must engage in the provided procedural opportunities; failing to do so negates their claims for further consideration.

ORDER :

S.M.SUBRAMANIAM, J.

These writ petitions have been instituted challenging the final orders, all dated 24.06.2025, passed by the second respondent, under Section 128 (1, 2) of the Tamilnadu Urban Local Bodies (Amendment) Act, 2022 (hereinafter, referred to as “the Act, 2022”).

2. It is not in dispute that show cause notices were issued to the petitioners by the Madurai Corporation vide proceedings dated 19.03.2025. In response to the said notice, some of the petitioners have submitted their representation / explanation to the authority concerned. Thereafter, the authority concerned identified the encroachments and considered the representations submitted. If at all any of the petitioners have not submitted their representation / explanation in response to the show cause notice, it is presumed that they have not availed the opportunity as provided by the authority concerned under the said Act. Thus, they cannot claim any further opportunity, as they had not availed the earlier opportunity granted to them. That being the factum, no further consideration is required in the case on hand. The authority concerned, after considering the explanation and considering the fact that the petitioners are found to be encroachers, issued the impugned final orders under Section 128 of the Act, 2022.

3. Learned counsel for the petitioners would submit that no further opportunity was granted to the petitioners or no detailed enquiry was conducted by the authority concerned.

4. Section 128 of the Act, 2022, reads as under:

“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;

[for the expression 'street or public place or the land' the expression 'street, public place, water body, tank, other water resources or any land' substituted vide Act, 25/2024]

(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 with a period of seven days from the date of receipt thereof:

[(i) for the expression 'street or public place or the land', the expression 'street, public place, water body, tank, other water resources or any land'

(ii) for the expression 'seven days', the expression 'fifteen days', substituted vide Act 25/2024]

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 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.

[for the expression 'any public street or any land', the expression 'any public street, water body, tank, other water resources or any land' substituted vide Act 25/2024]”

5. The above provision of the Act, 2022, in unambiguous terms stipulates that a show cause notice is to be issued for removal of encroachments. The alleged encroachers may submit an explanation to the show cause notice. The said explanation is to be c