P.Anand v. The District Collector

ORDER [Order of the Court was made by M.SUNDAR, J.,] Captioned main 'Writ Petition' (hereinafter 'WP' for the sake of brevity) has been filed with a prayer for issue of a writ of certiorarified mandamus.

¶2In and vide certiorari limb, an 'order signed by R2 (Commissioner, Coimbatore Corporation, Coimbatore) on 27.03.2025 bearing

reference Na.Ka.No.special/2025/H1(N)' (hereinafter Page Nos.2/21 'impugned order' for the sake of convenience and clarity) has been called in question. As regards the mandamus limb, a consequent direction has been sought qua respondents seeking to restrain the respondents from interfering with petitioners' 'property under the name and style "Coffee Break" situate in SF Nos.341 and 342, Sowripalayam Village, Ward No.28, North Zone, Coimbatore Corporation' (hereinafter 'said property' for the sake of convenience and clarity).

¶3Mr.R.Balasubramanian, learned counsel on record for writ petitioners, who is before us submits that the writ petitioners were visited with a notice dated 09.08.2024 from R2, the same was assailed in this Court by the writ petitioners in an earlier writ petition being W.P.No.24407 of 2024 and the same came to be disposed of (along with WMPS thereat) by this Division Bench in and by an order dated

09.01.2025.

¶4Short point that is urged by the learned counsel for the writ petitioners (notwithstanding myriad grounds in the writ affidavit) in his campaign against the impugned order is that the writ petitioners Page Nos.3/21 pursuant to 09.01.2025 order in W.P.No.24407 of 2024 sent a detailed representation dated 14.01.2025 but the impugned order has not considered the contents of the representation.

¶5Issue notice to respondents.

¶6Mr.M.S.Arasakumar, learned Government Advocate accepts notice for R1 and Mr.N.Velmurugan, learned Standing Counsel for Coimbatore Corporation accepts notice for R2 and R3.

¶7Learned Standing counsel for Coimbatore Corporation submits that the impugned order made by R2 is under proviso to Section 128(1)(b) of 'The Tamil Nadu Urban Local Bodies Act, 1998 (Act 9 of 1999)' (hereinafter 'TNULB Act' for the sake of convenience and clarity).

¶8This Court finds that the legal perimeter within which the captioned main WP should perambulate is very limited. To put it differently, the legal landscape of the captioned matter is limited and therefore with the consent of learned counsel on both sides, main WP is taken up in the Admission Board. Page Nos.4/21

¶9Section 128 of TNULB Act as amended on and from

06.01.2025 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, public place, water body, tank, other water resources or any land belonging to or vested with the municipality with the municipal limit;

(b) remove any immovable structure whether permanent or of temporary nature encroaching street, public place, water body, tank, other water resources or any 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 fifteen 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 Page Nos.5/21 or space (not being private property) in any public street, water body, tank, other water resources 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.'

¶10Proviso to Section 128(1)(b) of TNULB Act makes it clear that the Commissioner 'shall consider' the representation received before passing 'final orders'. To be noted, learned Standing Counsel for Coimbatore Corporation has made it clear that the impugned order has been made by R2 under proviso to Section 128(1)(b) of TNULB Act. This means that the impugned order is 'final orders' within the meaning of proviso to Section 128(1)(b) of TNULB Act. This further means that

14.01.2025 representation sent by first writ petitioner should have been considered in making the impugned order.

¶11A careful perusal of the impugned order brings to light that Page Nos.6/21 there is only a cursory reference to representation of first writ petitioner and the conclusion that the representation is rejected. Date of the representation has not been mentioned in the body of the order though Sl. No.7 in ghh;it refers to a representation dated 29.01.2025.

¶12Learned Standing Counsel for Coimbatore Corporation submits that 14.01.2025 representation has been received by the office of R2 on 20.01.2025. Thereafter, another representation dated

29.01.2025 has been received from the writ petitioners. Learned counsel for writ petitioners submits that the writ petitioners have not sent any representation dated 29.01.2025 as Section 128(1)(b) of TNULB Act provides only for a fortnight and the judicial order dated

09.01.2025 made in W.P.No.24407 of 2024 also talks about a representation on or before 16.01.2025, it will suffice if the

14.01.2025 representation is considered in its entirety. A scanned reproduction of 14.01.2025 representation is as follows: Page Nos.7/21 Page Nos.8/21 Page Nos.9/21 Page Nos.10/21 Page Nos.11/21 Page Nos.12/21 Page Nos.13/21 Page Nos.14/21

¶13Though the above is the obtaining statutory position, we make a departure (making it clear that it will not serve as a precedent). We record that another representation dated 24.02.2025 Page Nos.15/21 has been given by the first writ petitioner and a scanned reproduction of the same as placed before this Court by learned counsel for writ petitioners is as follows: Page Nos.16/21

¶14Though we express our disapproval of such an approach of the writ petitioners, considering the facts and circumstances of the case and with the intention of ensuring that multiple tributary Page Nos.17/21 litigations do not emerge, we direct R2 (by making exception making it clear that it will serve as an exception and not as a precedent) to consider 24.02.2025 representation also.

¶15In the light of the narrative, discussion and dispositive reasoning thus far, the following order is made:

15.1 Impugned order signed by R2 on 27.03.2025 bearing reference Na.Ka.No.special/2025/H1(N) is set aside;

15.2 Impugned order is set aside on the sole point that representation dated 14.01.2025 (received by R2 office on 20.01.2025) has not been considered in its entirety. To put it differently, we have not expressed any view or opinion on the merits of the matter;

15.3 We now direct R2 to consider 14.01.2025 and

24.02.2025 representations (both scanned and reproduced supra) and pass orders afresh under proviso to Section 128(1)(b) of TNULB Act as expeditiously as the business of R2 would permit but in any event within eight weeks from today i.e., by 03.06.2025; Page Nos.18/21

15.4 The order made by R2 in the aforesaid manner shall be served on each of the writ petitioner under due acknowledgment within seven working days from the date of the order;

15.5 Though obvious we make it clear that coercive action (if any and if that be so) shall be subject to and depending on the orders to be made by R2 in the aforesaid manner.

¶16Captioned WP is disposed of in the aforesaid manner. As we have written that coercive action (if any and if that be so) shall be subject to orders to be made afresh by R2, captioned Writ Miscellaneous Petition (WMP) thereat has become otiose and the same is disposed of as closed. There shall be no order as to costs. (M.S.,J.) (K.G.T.,J.)

08.04.2025 Index : Yes / No (1/3) mmi Page Nos.19/21 To

1.The District Collector, Office of the District Collectorate, Coimbatore.

2.The Commissioner, Coimbatore Corporation, Coimbatore.

3.The Town Planning Officer, Coimbatore Corporation, Coimbatore. Page Nos.20/21 M.SUNDAR, J., and K.GOVINDARAJAN THILAKAVADI, J., mmi

08.04.2025 (1/3) Page Nos.21/21

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08.04.2025 CORAM THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI and W.M.P. No.14023 of 2025 in W.P. No.12431 of 2025 1.P.Anand, Proprietor of Coffee Break, S/o. N.Panneer Selvam, B1-315, Manchester Grand Apartment, M.G. Road, Avarampalayam, Coimbatore – 641 006. 2.Kavitha Seerappan 3.A.K.Seerappan ... Petitioners Vs. 1.The District Collector, Office of the District Collectorate, Coimbatore. 2.The Commissioner, Coimbatore Corporation, Coimbatore. 3.The Town Planning Officer, Coimbatore Corporation, Coimbatore. ... Respondents Page Nos.1/21 Writ Petition filed under Article 226 of The Constitution of India praying to issue a Writ of Certiorarified Mandamus to call for the records relating to the impugned order having reference Na.Ka.No.special/2025/H1(N) dated Nil.03.2025 passed by the second respondent and quash the same and consequently direct the respondents not to interfere with the petitioners' peaceful possession and enjoyment of the property under the name and style of "Coffee Break" situated in SF Nos.341 and 342, Sowripalayam Village, Ward No.28, North Zone, Coimbatore Corporation. For Petitioners : Mr.R.Bharath Kumar For Respondents : Mr.M.S.Arasakumar, Government Advocate for R1 Mr.N.Velmurugan, Standing Counsel for R2 and R3