(Prayer: Writ Petition is filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorarified Mandamus to call for records in Ma/Po/2/4748/12, dated 23.04.2012 in respect of the petitioner's house property situated in R.S.No.118/5, Singampidari Kovil Street, 8th ward of Madurai Town, on the file of the 1st respondent and quash the same as illegal eviction and also forbearing the 1st respondent from dispossessing the petitioner from petitioner's house property bearing Door No.1 of Singampidari Kovil Street, in R.S No.118/5, 8th ward of Madurai Town.)
M. SATHYANARAYANAN, J.
1. The petitioner in the affidavit filed in support of this Writ Petition stated among other things that he constructed a superstructure which was assigned with door No.1 in the house site comprised in R.S.No.118/5 at Singampidari Kovil II Street, K.Salai, Thathaneri Village by encroaching small portion and was residing there from the year 1982 and the said superstructure is also subjected to the statutory levies. It is further stated by the petitioner that the officials attached to the first respondent visited her premises along with the police on 07.06.2012 and served notice stating that she had encroached upon a poramboke property measuring 2.2 x 1.00 metre in R.S.No.118/5.
2. According to the petitioner, the said notice was served on her husband and immediately, she approached the Office of the first respondent and informed that she has been in possession and enjoyment of the property in question for years together and the said property is also subjected to all statutory levies and though there are other encroachers in the same area, the petitioner alone has been singled out and prayed for mercy. However, the Officials of the first respondent without heeding to the said request, demolished the entire property on 07.06.2012.
3. The petitioner on an earlier occasion filed W.P.(MD).No.11023 of 2012 against the first respondent herein praying for a Writ of Mandamus forbearing from dispossessing the petitioner and this Court, while disposing of the said Writ Petition, on 31.07.2012, has taken note of the fact that the remedy open to the petitioner is either to challenge the illegal eviction or claim compensation against the first respondent. Accordingly, he came forward and filed the present Writ Petition.
4. Learned counsel for the petitioner would submit that the first respondent without recourse of law had illegally demolished the entire superstructure and therefore, prays for quashment of the impugned notice so as to enable her to claim compensation before the competent forum.
5. This Court has considered the submissions of the learned Counsel appearing for the petitioner and also perused the material available before us.
6. Section 258 of the Madurai City Municipal Corporation Act, 1971 speaks about the removal of encroachment and relevant portion is extracted below:-
(1) The commissioner may by notice require the owner or occupier of any premises to remove or alter any projection, encroachment or obstruction (other than a door, gate, bar or ground-floor window) situated against or in front of such premises and in or over any street or any public place the control of which is vested in the corporation.
(2) If the owner or occupier of the premises proves that any such projecting encroachment or obstruction has existed for a period sufficient under the law of limitation to give him a prescriptive title or where such period is less than thirty years, for a period of thirty years or that it was erected with the consent of any municipal authority duly empowered in that behalf and that the period, if any, for which the consent is valid has not expired, the corporation shall make compensation to every person who suffers damaged by the removal or alteration of the same
7. Admittedly, notice has been issued to the petitioner on 23.04.2012 by invoking Section 258 of the said provision and the petitioner was given three days time to remove the encroachment and thereafter, she was said to have been dispossessed by the first respondent and the entire superstructure put up by her was demolished. Though it was open to the respondents to respond to the said notice, she did not do so and only after demolition, she sent a Lawyer notice on 12.06.2012 to the first respondent. A perusal of the affidavit filed in support of this Writ Petition would show that the the petitioner herself has conceded the she is an encroacher and claims to be in possession right from the year 1982.
8. We are of the considered opinion that the first respondent after following due process of law had dispossessed the petitioner and therefore, this Court is of the view that this Writ Petition lacks merits and substance and therefore, it is dismissed. However, if the petitioner is so advised, she may be at liberty to work out her remedy by availing the common law remedy before the competent forum subject to law of limitation. No costs. Consequently, the connected miscellaneous petition is closed.