Ex-parte decree over public park land declared void; Collector ordered to probe officials’ role

The Municipality identified Palamalai as an encroacher of a park/street poramboke area measuring 520 sq. ft. and issued a show-cause notice under Section 128(1)(b) of the Tamil Nadu Urban Local Bodies Act, 1998.

Palamalai responded that he had a civil court decree in his favour in O.S. No. 35 of 2009, claimed that patta had been granted in his name, and stated that he operated a mess at the site.

The Commissioner rejected the explanation and ordered removal, finding that no title document had been produced.

Palamalai sought certiorari to quash that order.

The Court examined the ex parte decree and found that the Government authorities had filed a written statement asserting that the land was Government poramboke classified as park land.

Whether Section 128(1)(b) required the Commissioner to conduct a formal enquiry, beyond considering the petitioner’s representation and documents, before ordering removal of the alleged encroachment

Whether the petitioner’s ex parte civil court decree established a right to retain occupation of the land or otherwise invalidated the Municipality’s removal order

Section 128(1)(b) of the Tamil Nadu Urban Local Bodies Act, 1998 empowers the Commissioner to remove structures encroaching on streets, public places, water bodies, or municipal land after issuing a show-cause notice; its proviso requires the Commissioner to consider any representation received within the prescribed time before passing final orders.

The Court held that the provision requires consideration of the representation and supporting documents, but does not confer a right to a trial-like enquiry.

The Court also relied on S.V. Subbiah v. The Bar Council of Tamil Nadu & Puducherry, 2024 MHC 2481, and the principles quoted from Salem Advocate Bar Association, Tamil Nadu v. Union of India, concerning the State’s duty to defend Government cases properly and protect public property.

Exercising powers under Article 227 of the Constitution, the Court declared the ex parte decree in O.S. No. 35 of 2009 null and void and non-executable.

The petitioner had received notice and submitted an explanation, which the Commissioner considered; the Act did not require a formal enquiry, and the Commissioner’s finding that no title document had been produced supported the removal order.

The civil decree did not establish an enforceable right to occupy the site: the Court noted that it was ex parte despite the authorities’ written statement identifying the land as Government poramboke classified as park land, and declared the decree null and void and non-executable.

The Court further found that the petitioner had produced no title document apart from that decree and that the land was required for public use.

It dismissed the writ petition and permitted the respondents to proceed with enforcement action.

The Court also directed the District Collector, Cuddalore, to inquire into how the Government case had been defended and to consider appropriate action against the responsible officials and Government Pleader.