Failure to consider objections before passing an order under Section 128 of the Tamil Nadu Urban Local Bodies Act vitiates the order.

(Judgment of the Court was made by G.R.Swaminathan J.)

Heard both sides.

2.The Executive Officer of Keeranur Town Panchayat had passed an order under Section 128 of Tamil Nadu Urban Local Bodies Act, 1998 calling upon the petitioner to remove the encroachment in question on his own. It is seen that the earlier order issued by the local body was put to challenge in W.P(MD)No.3664 of 2024. The Hon’ble Division Bench had directed that the said order will be treated as a showcase notice and granted liberty to the writ petitioner to offer his explanation. Pursuant to the liberty granted by this Court, the writ petitioner offered his explanation on 21.08.2024. Thereafter, the impugned order dated 23.08.2024 had been issued. We carefully went through its contents.

Nowhere there is any reference to the writ petitioner’s objections.

3.It is well settled that when an explanation is offered in response to a show cause notice, the same must be taken into account before passing the final order. Failure to do so would vitiate the order. We say so on first principles. It is relevant to note that the Proviso to Section 128(1)(b) of the Tamil Nadu Urban Local Bodies Act, 1998, mandates that the Commissioner to consider any representation received within the time limit, before passing final orders. The expression employed in the proviso is “shall consider”. Since the statutory mandate has not been complied with, the impugned order is set aside. The matter is remitted to the file of the respondent authority. The respondent authority is directed to pass a fresh order by taking into account the objections already given by the writ petitioner. The petitioner is given a week’s time from the date of receipt of a copy of this order to make his additional representation also.

4.This Writ Petition is allowed accordingly. No costs.