Proceedings to remove encroachments must include a show cause notice to the affected party as stipulated by the Tamil Nadu Urban Local Bodies Act.

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 in this Court on 16.07.2024 with a Certiorarified Mandamus prayer qua 'proceedings dated 26.06.2024 bearing reference Ma.A.3.Na.Ka.No.3754/2024 made by R2 (the Zonal Officer, Zone-3, Greater Chennai Corporation, No.1, Thattankulam Road, Madhavaram, Chennai-600 060.)' {hereinafter 'impugned proceedings' for the sake of convenience and clarity}.

2. Mr.S.Illamvaludhi, learned counsel on record for WP petitioner, adverting to impugned proceedings submits that R2 has issued the impugned proceedings without show causing the noticee.

3. Issue notice to respondents i.e., notice regarding admission.

4. Mr.G.T.Subramanian, learned counsel accepts notice for R1 to R3. Mr.P.Srinivasan, (Enrol.No.511/1993), learned counsel with address for service at No.248, New Additional Law Chambers, High Court, Chennai-600 104, accepts notice for R4.

5. Learned counsel submits that impugned proceedings pertains to encroachment in a public pathway and therefore, the same has been made under the 'Tamil Nadu Urban Local Bodies Act, 1998 (Tamil Nadu Act 9 of 1999) {hereinafter 'TNULB Act' for the sake of brevity}.

6. Considering the limited scope of captioned WP, main WP was taken up with the consent of all learned counsel before us i.e., learned counsel for writ petitioner, learned Standing Counsel for Chennai Corporation (R1 to R3) and Mr.P.Srinivasan, learned counsel, who has accepted notice for R4.

7. A careful perusal of the TNULB Act brings to light that proceedings, if any, in cases of this nature has to necessarily be under Section 128(1)(b) of TNULB Act and proviso thereat. Section 128(1)(b) of TNULB Act provides for a noticee being show caused with 7 days time to respond. To be noted, Section 128(1)(b) of TNULB Act together with proviso thereat 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] with 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 municipality 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 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.'

8. In the light of the provision and inbuilt mechanism therein i.e., mechanism to show cause the noticee qua proceedings under Section 128(1)(b) of TNULB Act, we are of the considered view that the impugned proceedings deserves to be dislodged on this short point without expressing any view or opinion on the merits of the matter. We have also noticed that proviso to Section 128(1)(b) of TNULB Act provides for any representation to be considered, if the representation is made within 7 days window. This means that it will be open to R4 to make a representation and the same will also be considered before making final orders.

9. In the light of the narrative thus far, captioned WP is di