Writ challenging Ombudsman order premature without enforcement notice to non-party; due process mandatory for encroachment removal.

(Order of the Court was made by S.M.Subramaniam J.)

The present Writ Petition has been filed challenging the order No.

149/Na./ 2023 dated 21.07.2023 passed by the Tamil Nadu Local Bodies Ombudsman Court.

2. The learned counsel for the petitioner would submit that based on the order impugned, the Commissioner, Nagapattinam Municipality is orally threatening the petitioner for demolition of sunshade constructed in front of the house of the petitioner.

3. A perusal of the order impugned would show that one Mr.G.Marimuthu filed an appeal before the Ombudsman against the Commissioner, Nagapattinam Municipality and the petitioner is not a party to the said proceedings. However, the Ombudsman issued a direction for removal of the encroachment. Since the petitioner is not a party in the proceedings before the Ombudsman any enforcement action if proposed, it is to be initiated only by following the procedures as contemplated under the relevant stature and Rules in force.

4. For removal of encroachment, the competent Authority should issue notice to the encroacher affording opportunity to defend his case. As of now there is no such enforcement action commenced. Since the petitioner is not a party to the Ombudsman proceedings and enforcement actions have not been commenced, the present Writ Petition is pre-mature. Based on the apprehension, the Writ Petition appears to be filed. Thus, in the even of issuance of notice by the competent Authority based on the order passed by the Ombudsman, the petitioner is at liberty to defend his case in the manner known to law.