Madras High Court
K.Amalraj vs The District Collector on 11 July, 2023
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
W.P(MD)Nos.16949 to 16951 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 11.07.2023
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
W.P(MD)Nos.16949 to 16951 of 2014
and
M.P(MD)Nos.1, 1 & 1 of 2014
W.P(MD)No.16949 of 2014:
K.Amalraj ... Petitioner
Vs
1.The District Collector,
Tanjore District,
Tanjore.
2.The Block Development Officer,
Budalur Panchayat Union,
Budalur Village, Tanjore District.
3.The Executive Officer,
Budalur Panchayat Union,
Budalur Village,
Tanjore District.
4.The Panchayat President,
Budalur Panchayat Union,
Budalur Village,
Tanjore District.
5.T.Thanga Kennedy ... Respondents
https://www.mhc.tn.gov.in/judis
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W.P(MD)Nos.16949 to 16951 of 2014
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Mandamus, directing the respondents 1 to 4 to
reconstruct the shops at Panchayat Board commercial Complex near Bus Stand,
Budalur Village, Tanjore District and consequently direct the fourth respondent
to pay compensation of Rs. 1,50,000/- for the illegal demolition of the
petitioner's shop in Shop No. 7 at Panchayat Board Commercial Complex near
Bus Stand, Budalur Village, Tanjore District.
For Petitioner : Mr.S.Rajasekar
For Respondents : Mr.S.RA.Ramachandran
Additional Government Pleader
for R.1, R.3 & R.4
Mr.Aayiram K.Selvakumar for R.2
Mr.G.Thalaimutharasu for R.5
W.P(MD)No.16950 of 2014:
P.Ravichandran @ Ravi Murugesan ... Petitioner
Vs
1.The District Collector,
Tanjore District,
Tanjore.
2.The Block Development Officer,
Budalur Panchayat Union,
Budalur Village,
Tanjore District.
https://www.mhc.tn.gov.in/judis
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W.P(MD)Nos.16949 to 16951 of 2014
3.The Executive Officer,
Budalur Panchayat Union,
Budalur Village,
Tanjore District.
4.The Panchayat President,
Budalur Panchayat Union,
Budalur Village,
Tanjore District.
5.T.Thanga Kennedy ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Mandamus, directing the respondents 1 to 4 to
reconstruct the shops at Panchayat Board commercial Complex near Bus Stand,
Budalur Village, Tanjore District and consequently direct the fourth respondent
to pay compensation of Rs.1,50,000/- for the illegal demolition of the
petitioner's shop in Shop No. 6 at Panchayat Board Commercial Complex near
Bus Stand, Budalur Village, Tanjore District.
For Petitioner : Mr.S.Rajasekar
For Respondents : Mr.S.RA.Ramachandran
Additional Government Pleader
for R.1, R.3 & R.4
Mr.Aayiram K.Selvakumar for R.2
Mr.G.Thalaimutharasu for R.5
W.P(MD)No.16950 of 2014:
E.Jothi ... Petitioner
Vs
https://www.mhc.tn.gov.in/judis
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W.P(MD)Nos.16949 to 16951 of 2014
1.The District Collector,
Tanjore District,
Tanjore.
2.The Block Development Officer,
Budalur Panchayat Union,
Budalur Village,
Tanjore District.
3.The Executive Officer,
Budalur Panchayat Union,
Budalur Village,
Tanjore District.
4.The Panchayat President,
Budalur Panchayat Union,
Budalur Village,
Tanjore District.
5.T.Thanga Kennedy ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Mandamus, directing the respondents 1 to 4 to
reconstruct the shops at Panchayat Board commercial Complex near Bus Stand,
Budalur Village, Tanjore District and consequently direct the fourth respondent
to pay compensation of Rs.1,50,000/- for the illegal demolition of the
petitioner's shop in Shop No. 8 at Panchayat Board Commercial Complex near
Bus Stand, Budalur Village, Tanjore District.
For Petitioner : Mr.S.Rajasekar
For Respondents : Mr.S.RA.Ramachandran
Additional Government Pleader
for R.1, R.3 & R.4
https://www.mhc.tn.gov.in/judis
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W.P(MD)Nos.16949 to 16951 of 2014
Mr.Aayiram K.Selvakumar for R.2
Mr.G.Thalaimutharasu for R.5
COMMON ORDER
Heard the learned counsel on either side.
2. The writ petitioners herein were occupants of shops belonging to the fourth respondent Panchayat. The petitioners were carrying on business. Mr.K.Amalraj was carrying on business as butcher. Thiru.P.Ravi Chandran @ Ravi was running a sweet shop. Ms.E.Jothi was running a Tailor Shop. The shops were demolished on 03.09.2014 at about 03.00 a.m. Contending that the demolition was illegal and for directing the official respondents to pay suitable compensation to them, these writ petitions have been filed.
3. The learned counsel appearing for the petitioners reiterated all the contentions set out in the affidavit filed in support of the writ petition. He pointed out that the petitioners have instituted civil suits before the District Munsif Court, Thanjavur (O.S.Nos.487 of 2013, 488 of 2013 and 485 of 2013) and obtained interim orders in their favour. During the subsistence of the interim orders, demolition was carried out. He also would point out that the Panchayat President has no jurisdiction to demolish the building. He drew my https://www.mhc.tn.gov.in/judis 5/12 W.P(MD)Nos.16949 to 16951 of 2014 attention to the fact that the communication issued by the Panchayat President does not refer to any statutory provision. His further argument is that the provisions of the Tamil Nadu Public Premises (Eviction of Unauthorized Occupants) Act, 1975 should have been invoked. Since the petitioners had been put to loss on account of the demolition, it is only just and proper that the local body or the State pay suitable compensation to the petitioners herein. He called upon this Court to grant relief as prayed for.
4. The respondents have filed counter affidavits and the learned Additional Government Pleader and as well as the learned counsel appearing for the local body took me through its contents. They submitted that notice was issued to the petitioners before demolishing the building. They pressed for dismissal of the writ petition.
5. I carefully considered the rival contentions and went through the materials on record.
6. The first contention advanced by the learned counsel appearing for the writ petitioners is that out of 11 shops, the shops occupied by the petitioners alone were demolished and that they have been selectively targeted. Thiru.Kumar, Panchayat Secretary, Budalur Village Panchayat is present in https://www.mhc.tn.gov.in/judis 6/12 W.P(MD)Nos.16949 to 16951 of 2014 person and on instructions given by him, the learned Additional Government Pleader as well as the learned counsel appearing for the local body would state that the occupants of all the eleven shops have been evicted and that for the last several years, all the shops are remaining vacant and they have been partially demolished. On account of litigation, the demolition activity was not carried out in full.
7. In view of the said statement made by the respondents, the allegation that the writ petitioners have been discriminated cannot be accepted.
8. The next contention is that the impugned communication issued by the Panchayat President does not invoke any provision of law. It is well settled that non-quoting or misquoting or wrong quoting of legal provision will not vitiate the administrative order if the authority issuing the same is otherwise possessed of the necessary jurisdiction. I therefore do not find any merit in this contention of the learned counsel appearing for the petitioners also.
9. The prime ground of attack is that the Panchayat President lacks the jurisdiction to initiate the impugned proceedings. The learned counsel appearing for the petitioners drew my attention to Section 131(2) of the Tamil Nadu Panchayats Act and contended that at best the Panchayat President can https://www.mhc.tn.gov.in/judis 7/12 W.P(MD)Nos.16949 to 16951 of 2014 only issue notice calling upon the alleged encroacher to remove the encroachment. He cannot enforce his order. It is only the revenue authority who will have to cause physical removal of the encroachment. He relied on a catena of decisions in this regard, in particular, 2008 1 MLJ 1132 (G.Radhakrishnan vs. The President, Keayakottai Panchayat).
10. It is true that there are a slew of decisions supporting the arguments advanced by the learned counsel appearing for the petitioner. However, the learned Additional Government Pleader as well as the learned counsel appearing for the local body would draw my attention to a contra decision rendered by the Hon'ble Division Bench of this Court on 22.03.2023 in W.P(MD)No.16264 of 2021 etc (Ganesan Vs The Thasildar & Others). The Hon'ble Division Bench in the said case has taken the view that under Section 131(2) of the Act, the Panchayat President who has been notified as executive authority is also having the power to cause removal of the encroachment. The decision relied on by the learned counsel appearing for the petitioners had been labelled as per incuriam. In response thereto, the learned counsel appearing for the petitioners would contend that decisions subsequent to the aforesaid decision have taken the earlier line. However, I am have been spared the labour of making the choice, because the learned Additional Government Pleader appearing for the respondents as well as the learned counsel appearing https://www.mhc.tn.gov.in/judis 8/12 W.P(MD)Nos.16949 to 16951 of 2014 for the local body submit that the impugned action of the Panchayat President can be justified with reference to Section 143 of the Tamil Nadu Panchayats Act, 1994. Section 143 is as follows:
“ 143. Precautions in case of dangerous tanks, wells, holes, etc.- (1) If any tank, pond, well, hole, stream, dam, bank or other place appears to him to be, for want of sufficient repair protection or enclosure, dangerous to the public health of safety, the Commissioner or Executive Authority may with the approval of the Panchayat Union Council or Village Panchayat, as the case may be, by notice require the owner to fill in, remove, repair, protect or enclose the same so as to prevent any danger therefrom.
(2) If immediate action is necessary, he shall, before giving such notice or before the period of notice expires, himself take such temporary measures as he thinks fit to prevent danger, and the cost of doing so shall be recoverable from the owner in the manner hereinafter provided.” Of course, the said provision is meant to be exercised against owners of private buildings which are dilapidated and which are posing danger to the safety of the general public. In my view, the local body is empowered to step in if any building, public or private, is dangerous and dilapidated. The said provision should be understood as authorizing the executive authority of the local body or Commissioner to call upon the occupants of dilapidated building to vacate. The communication issued by the Panchayat President was produced for my perusal. It clearly states that 11 shops were constructed some 20 years ago and https://www.mhc.tn.gov.in/judis 9/12 W.P(MD)Nos.16949 to 16951 of 2014 that they may pose danger to the general public. The petitioners ought to have challenged the said communication by filing writ petitions before this Court.
They did not do so. They only moved the jurisdictional civil Court and obtained an order that they should not be evicted except by due process of law. The Panchayat President by invoking Section 143 is very much acting as per law. The action of the Panchayat President cannot be said to have breached the interim order granted by the civil Court.
11. The prime question that calls for consideration is whether the Panchayat President took the petitioners by surprise or acted in a high-handed manner or whether put the petitioners were on notice. It is seen that as early as on 09.12.2013 itself the Panchayat President issued notice to the petitioners herein. Yet another notice was issued on 22.07.2014. The learned counsel appearing for the respondents brings to my notice that the Panchayat has also passed a resolution on 07.07.2014 calling upon the occupants of 11 shops to vacate the building. The demolition took place only on 03.09.2014. Before demolition, the Panchayat President had served two notices to the petitioners herein. Therefore, I do not find any violation of the principles of natural justice. No case for payment of compensation has been made out. https://www.mhc.tn.gov.in/judis 10/12 W.P(MD)Nos.16949 to 16951 of 2014
12. These writ petitions are dismissed. There shall be no order as to costs. Consequently, connected miscellaneous petitions are closed.
11.07.2023
Index : Yes / No
Internet : Yes / No
NCC : Yes / No
MGA
To
1.The District Collector,
Tanjore District, Tanjore.
2.The Block Development Officer,
Budalur Panchayat Union,
Budalur Village, Tanjore District.
3.The Executive Officer,
Budalur Panchayat Union,
Budalur Village, Tanjore District.
4.The Panchayat President,
Budalur Panchayat Union,
Budalur Village, Tanjore District.
Copy to:
The District Munsif Court,
Thanjavur.
https://www.mhc.tn.gov.in/judis
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W.P(MD)Nos.16949 to 16951 of 2014
G.R.SWAMINATHAN, J.
MGA
W.P(MD)Nos.16949 to 16951 of 2014
and
M.P(MD)Nos.1, 1 & 1 of 2014
11.07.2023
https://www.mhc.tn.gov.in/judis
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