WP/40577/2026 of P.PALAMALAI Vs THE COMMISSIONER on 6 October 2026

ORDER

(Order of the Court was made by S.M.Subramaniam J.) The writ on hand has been instituted to set aside the final order passed by Commissioner, Thittakudi Municipality dated 09.09.2026 under Section 128(1)(b) of the Tamil Nadu Urban Local Bodies Act, 1998.

2. The facts not controverted between the parties are that respondent authorities identified the writ petitioner as an encroacher of park area and issued a notice on 14.08.2025, affording him an opportunity to submit his written explanation. Petitioner submitted his explanation on 25.08.2025 claiming that he has a civil court decree in his favour in O.S. No.35 of 2009 dated 29.08.2016, and further that he is running a mess in the subject location for several years. Not satisfied with the explanation, Commissioner, Municipality issued the impugned final order. Commissioner made a finding that the writ petitioner has not produced any title document to establish his ownership. Commissioner considered the report of Revenue Tahsildar, and found that encroachment was made in street poramboke to an extent of 520 sq.ft. Thus, the final order states that enforcement action will be completed.

3. Mr.C.Munusamy, learned counsel for the petitioner, would mainly contend that considering the long possession, the civil court passed a decree in favour of the writ petitioner in O.S. No.35 of 2009. Patta was granted in his name. Petitioner is running a mess. Commissioner has not considered his representation and without conducting enquiry, the impugned final order has been passed. Thus, the order is to be set aside and the matter is to be remanded back for conducting enquiry and to pass orders on merits.

4. Mr. P. Srinivas, learned Standing Counsel appearing on behalf of the Municipality would oppose by stating that Revenue Tahsildar has submitted a detailed report to the Commissioner stating that petitioner has encroached upon the street poramboke land to an extent of 520 sq.ft. and is running a commercial establishment. Originally, the entire location was classified as park by the District Collector. On identification of encroachment, notice was issued on 14.08.2025, and petitioner submitted his explanation. The Commissioner found that the petitioner has not submitted any title document to establish his ownership and therefore, passed the final order for removal of encroachment.

5. This Court has considered the rival submissions made by the parties to the lis.

6. Section 128(1)(b) of the Tamil Nadu Urban Local Bodies Act reads as under: “Section 128. Power to remove encroachment from public place (1) The Commissioner may,—

(b) remove any immovable structure whether permanent or of temporary nature encroaching the street, public place, water body, tank, other water resources or any land belonging to or vested with the municipality within the municipal limit, after issuing a show cause notice for such removal, returnable with 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.”

7. The above provision in unambiguous terms reiterates that Commissioner is empowered to remove any immovable structure, whether permanent or temporary in nature, encroaching upon the street or public place or land belonging to or vested with the Municipality, by issuing a show cause notice for such removal and on receipt of any representation, the same shall be considered and a final order to be passed. Therefore, the Act does not contemplate any enquiry to be conducted by the competent authority / Commissioner. Act specifically stipulates that the representation, if any, submitted by the encroacher is to be considered by the Commissioner. Consideration of representation by the competent authority cannot be equated with conducting a trial nature enquiry. Therefore, authority on receipt of the explanation has to consider the grounds raised by the encroacher along with the documents, if any, filed. It is suffice, if such deliberation is made by the authority and a final order is passed by assigning reasons. In the absence of contemplation of any enquiry under the Act, an encroacher cannot claim conduct of an enquiry as a matter of right.

8. In the present case, show cause notice was issued, petitioner submitted his explanation along with documents and Commissioner found that no title document has been produced to establish ownership. Therefore, on the said reason, the final order of removal was passed, which is impugned in the present writ proceedings.

9. Regarding the civil court decree, this Court has gone through the judgment. Though the District Collector and other authorities were impleaded as defendants in the suit, an ex-parte decree was obtained. However, a written statement was filed by the authorities. The written statement recorded in the civil court judgment would show that the suit schedule property is a Government poramboke land and plaintiff was in occupation. The said poramboke land in Re-survey No.119 was classified as park by the District Collector and an administrative sanction was granted for establishing a park in that area. Further, the written statement proceeds that plaintiff encroached upon the Government poramboke land and constructed commercial establishments. As early as on 14.09.2009 and on 07.01.2009, show cause notices were issued to the encroachers by the authorities. Despite the written statement filed by the authorities, District Munsif Court passed an ex-parte decree, which in the opinion of this Court is unnecessary. Once the civil court, on perusal of the written statement filed by the District Collector found that it is a Government poramboke land and classified as park area earmarked for public use, then such an ex-parte decree ought not to have been passed by the civil court. The District Munsif Court ought to have summoned the competent Government authorities to participate in the trial. The circumstances under which such an ex-parte decree has been obtained against the Government authorities are undoubtedly suspicious. When a written statement has been filed by the Government authorities clearly stating that it is a Government poramboke land and earmarked for public use and despite the same, the civil court passed an ex-parte decree granting possessory right to an encroacher, the decree is to be construed as non-executable. Therefore, this Court is of the considered view that such decrees are to be declared as null and void in exercise of powers conferred under Article 227 of the Constitution of India. Accordingly, this Court declares that the ex-parte decree passed by the District Munsif Court, Thittakudi in O.S. No.35 of 2009 dated 29.08.2016 is declared as null and void and non-executable.

10. In the case of S.V. Subbiah v. The Bar Council of Tamil Nadu & Puducherry, Represented by its Secretary and Others1, the Division Bench of this Court dealt with the issue where Government Pleaders failed to effectively defend Government cases, resulting in ex- parte decrees being passed in matters involving Government lands, and had issued guidelines for initiating appropriate action in such cases. The relevant paragraphs containing the said guidelines are extracted hereunder:

4. No doubt, High Court frequently witnessing many such exparte orders against the Government. Doubt arises, whether the Government Pleaders are representing the Government cases properly in the District Judiciary. In the event of not defending the case of the Government, it is a serious misconduct and an offence, since the public properties are to be protected under various Statutes and it is the Constitutional mandate. Government is duty bound to protect the public properties in the manner contemplated under law. It is the joint responsibility of the Officials of the Government and the Government Pleaders, who all are conducting cases on behalf of the Government in such land matters in District Courts and higher Judiciary. Any lapses, negligences and 12024 MHC 2481; W.P. No. 2861 of 2020, dated 19.06.2024.

dereliction of duty on the part of the Government Pleaders in defending the Government cases are to be viewed seriously and appropriate actions are to be initiated not only to safeguard the public property and also to initiate appropriate action against those Officials and the Government Pleaders, who have committed such lapses, dereliction, negligence, misconduct and offences. .....

6. The Hon'ble Supreme Court of India in the case of Salem Advocate Bar Association, Tamil Nadu vs. Union of India reported in MANU/SC/0450/2005 in paragraph nos.39 and 40 held as follows: “Section 80

39. Section 80 (1) of the Code requires prior notice of two months to be served on the Government as a condition for filing a suit except when there is urgency for interim order in which case the Court may not insist on the rigid rule of prior notice. The two months period has been provided for so that the Government shall examine the claim put up in the notice and has sufficient time to send a suitable reply. The underlying object is to curtail the litigation. The object also is to curtail the area of dispute and controversy. Similar provisions also exist in various other legislations as

well. Wherever the statutory provision requires service of notice as a condition precedent for filing of suit and prescribed period therefore, it is not only necessary for the governments or departments or other statutory bodies to send a reply to such a notice but it is further necessary to properly deal with all material points and issues raised in the notice. The Governments, Government departments or statutory authorities are defendants in large number of suits pending in various courts in the country. Judicial notice can be taken of the fact that in large number of cases either the notice is not replied or in few cases where reply is sent, it is generally vague and evasive. The result is that the object underlying section 80 of the Code and similar provisions gets defeated. It not only gives rise to avoidable litigation but also results in heavy expense and cost to the exchequer as well. Proper reply can result in reduction of litigation between State and the citizens. In case proper reply is sent either the claim in the notice may be admitted or area of controversy curtailed or the citizen may be satisfied on knowing the stand of the State. There is no accountability in the Government, Central or State or the statutory authorities in violating the spirit and object of section 80.

40. These provisions cast an implied duty on all concerned governments and States and statutory authorities to send appropriate reply to such notices. Having regard to the existing state of affairs, we direct all concerned governments, Central or State or other authorities, whenever any statute requires service of notice as a condition precedent for filing of suit or other proceedings against it, to nominate, within a period of three months, an officer who shall be made responsible to ensure that replies to notices under section 80 or similar provisions are sent within the period stipulated in a particular legislation. The replies shall be sent after due application of mind. Despite such nomination, if the Court finds that either the notice has not been replied or reply is evasive and vague and has been sent without proper application of mind, the Court shall ordinarily award heavy cost against the Government and direct it to take appropriate action against the concerned Officer including recovery of costs from him.” .....

8. The said respondents are bound to issue guidelines to the District Collectors and all appropriate Authorities to monitor the Government cases pending before the District Courts, more specifically, relating to public properties and such guidelines must contain the actions to be initiated against the erring Officials and the Government Pleaders, who all are committing misconducts, offences, negligence, dereliction or lapses. The guidelines must be issued to all the Government Department Officials and to the Government Pleaders, so as to ensure that the Government cases are defended properly and the cases are decided on merits and in accordance with law. In the event of allowing the Courts to pass exparte decrees, action must be initiated against the concerned Officials and the Government Pleaders responsible and accountable for such exparte decrees. .....

12. In view of the facts and circumstances, the following orders are passed:

(i) The respondents 7, 8 and 9 are directed to issue appropriate Circulars/Guidelines/Instructions to all the District Collectors, competent Authorities and to the Government Pleaders indicating that the Government cases in land matters are to be conducted by properly defending the Government on merits and in accordance with law. The concerned Officials should have effective co-ordination with the Government Pleaders for the purpose of defending the Government cases before various courts across the State of Tamil Nadu.

(ii) In the event of any exparte decrees by the courts or on identification of improper conduct of cases both by the Officials concerned and the Government Pleaders, the competent Authorities must ascertain the facts and initiate all appropriate actions against the Government Officials concerned and the Government Pleaders for their lapses, negligence, dereliction of duty, offences and misconducts committed and prosecute them under the relevant laws.

(iii) The respondents 7, 8 and 9 are directed to issue consolidated Circulars/Guidelines/Instructions to all the Government Officials, District Collectors, competent Authorities and the Government Pleaders within a period of three (3) weeks from the date of receipt of a copy of this order.

(iv) Mr.T.Chandrasekaran, learned Special Government Pleader made a submission that he will ensure that such Circulars/Guidelines/Instructions is issued in a comprehensive manner.

(v) The 1st respondent is directed to expedite the enquiry initiated against the 5th respondent.”

11. The District Collector, Cuddalore is directed to conduct an enquiry in what manner the authorities defended the Government case before the District Munsif Court and under what circumstances, the authorities allowed the District Munsif Court to pass an ex-parte order despite filing a written statement and initiate all appropriate actions including prosecution and departmental disciplinary proceedings as well as initiate action against the Government Pleader, who represented the case on behalf of the Government before the Court concerned.

12. The collusion and corrupt activities at all levels are to be enquired into and all appropriate actions are directed to be initiated by the District Collector to ensure that public properties are protected in the interest of public and in the manner contemplated under the relevant statutes and rules in force.

13. As far as the present writ petition is concerned, the petitioner has not produced even a single document to establish that he is the title holder except the ex-parte decree, which has now been declared as null and void. The authorities found that he is an encroacher of street poramboke. The lands are required for the Municipality to restore the road and expand the same for public usage. This being the factum, petitioner is not entitled to any relief. The respondents shall proceed with enforcement action.

14. Consequently, the writ petition stands dismissed. No costs. The connected miscellaneous petitions, if any, are closed. (S.M.S.,J.) (R.R.V.,J.) 06-10-2026 Index: Yes/No Speaking/Non-speaking order Neutral Citation: Yes/No GD To The Commissioner Thittakudi Municipality, Thittakudi, Cuddalore District.

S.M.SUBRAMANIAM, J. AND R.RAJESH VIVEKANANTHAN, J. GD WP No. 40577 of 2026 06-10-2026