IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28.06.2024 CORAM THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI W.P.No.13007 of 2021

1.R.Rajasekar

2.R.Saravanan ... Petitioners Vs.

1.The Commissioner Salem Municipal Corporation Salem - 636 001.

2.The Assistant Commissioner Salem Municipal Corporation Salem - 636 001.

3.The Revenue Divisional Officer Salem Town, Salem - 636 001.

4.The Thasildar Office of the Thasildar Salem - 636 001.

5.B.Kalyani ... Respondents Prayer : Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus by directing the respondents 1 to 4 to take immediate action to demolish and remove the illegal structures and encroachment on the public road in Survey No.179/3B 2 of an extent of 250 sq.ft. (approximately) in Kumarasamypatti Village, Chinnatirupathi, Salem, pursuant to the report dated 25.02.2020 of the fourth respondent and 12.06.2020 of the third respondent and pass such other order or orders as this Court may deem fit.

For Petitioners : Mr.V.Vijay Shankar For Respondents : Ms.Rinsup Ria.M for Ms.Devi.N for R1 & R2 Mr.P.Balathandayutham Special Government Pleader for R3 & R4 R5 - No appearance

ORDER

[Order of the Court was made by M.SUNDAR, J.,]

This order will now dispose of the captioned 'Writ Petition' ['WP' for the sake of brevity].

2. Mr.V.Vijay Shankar, learned counsel for writ petitioners is before us.

3. The cause list shows Mr.S.Sathish for R1 and R2 but Ms.M.Rinsup Ria, learned counsel representing Ms.N.Devi who is before this Court submits that she has now entered appearance for R1 and R2 and she is the counsel for R1 and R2. Mr.P.Balathandayutham, learned Special Government Pleader for R3 and R4 is also before us.

4. In the captioned WP, the kernel of the complaint of writ petitioners is an alleged encroachment to an extent of 250 sq.ft. in what has been described as 'public road' in 'Survey No.179/3B2 in Kumarasamypatti Village, Chinnatirupathi, Salem' [hereinafter 'said land' for the sake of convenience and clarity] by R5. To be noted, R5 is a private respondent and Hon'ble predecessor Division Bench has ordered notice to R5 as early as on 23.06.2021. Notice to R5 [B.Kalyani] has been duly served and she has entered appearance through a counsel but there is no representation in the hearings on 21.06.2024 and this day.

5. Though the prayer in the writ petition describes the encroachment as public road, Mr.V.Vijay Shankar, learned counsel who is before us submits that it is a public street and in the light of Section 236 of 'Coimbatore City Municipal Corporation Act, 1981 (Tamil Nadu Act 25 of 1981)' [hereinafter 'said Act' for the sake of convenience and clarity'] {which has been made applicable to Salem City Municipal Corporation}, the public streets vest in Corporation (to be noted, in the present case Salem Municipal Corporation).

6. We find that there is a provision for removal of encroachments of this kind under the said Act and that is Section 258 of the said Act but all roads and streets vested in any local authority were also deemed to be the properties of the Government. This is vide sub-section (2) of Section 2 of 'The Tamil Nadu Land Encroachment Act, 1905' [hereinafter '1905 Act' for the sake of convenience] and the said provision reads as follows :

'2. Right of property in public roads, etc. water and lands:-

(2) All public roads and streets, vested in any local authority shall, for the purposes of this Act, be deemed to be the property of Government.'

7. Therefore whether it is a road or a street, it vests in the Government for the purposes of 1905 Act. The sequitur is this would also be covered under G.O.Ms.No.64 Revenue and Disaster Management Department, Land Disposal Wing dated 08.02.2022.

8. R5 who is the alleged encroacher has appeared through counsel but the counsel has not chosen to come before this Court today. However, the rights and contentions of R5 will stand preserved as the drill which i