Madras High Court
The Secretary vs The Estate Officer on 7 October, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON 20.04.2022
DELIVERED ON 29.04.2022
CORAM :
THE HONOURABLE MRS.JUSTICE S.ANANTHI
CR.P.(MD)No.1712 of 2021
and
C.M.P.(MD)Nos.1151 & 9165 of 2021
The Secretary,
Tanjore Union Club,
81, Gandhiji Road,
Thanjavur. ...Revision Petitioner/Appellant/
Respondent
Vs.
The Estate Officer,
Thanjavur City Municipal Corporation,
Thanjavur. ...Respondent/Respondent/
Petitioner
PRAYER: Civil Revision Petition under Section 115 of the Civil Procedure
Code, to call for the records relating to the order dated 07.10.2021 in
C.M.A.No.15 of 2021 on the file of the learned Principal District Judge,
Thanjavur confirming the order dated 17.09.2021 in Roc.No.
9706/2021/MCF3, passed by the Estate Officer, Thanjavur City Municipal
Corporation, set aside the same and allow the present Civil Revision Petition.
For Petitioners :Mr.T.Thirumurugan
For Respondent :Mr.M.Mohamed Rafi
https://www.mhc.tn.gov.in/judis
2
ORDER
This Civil Revision Petition has been filed by the revision petitioner to
set aside the order, dated 07.10.2021 in C.M.A.No.15 of 2021 passed by the
learned Principal District Judge, Thanjavur confirming the order, dated
17.09.2021 in Roc.No.9706/2021/MCF3, passed by the Estate Officer,
Thanjavur City Municipal Corporation.
2.The parties are referred to as per the rank mentioned before the Court
below.
3.The respondent herein/Petitioner/Municipal Corporation has issued
an order under the Tamil Nadu Public Premises [Eviction of Unauthorised
Occupant], Act, in ROC.No.9706 of 2021/MCF3 dated 17.09.2021 against
the revision petitioner/appellant to evict the petitioner from the property as
considering him as authorised occupants.
4.Against the same, the revision petitioners have filed an appeal in
C.M.A.No.15 of 2021 and the same was also dismissed. Against the same,
the revision petitioners are before this Court.
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5.Heard on either side. Perused the material documents available on
record.
6.This Civil Revision Petition is filed on the ground that the Court
below ought to have seen that for the purpose of public benefit, the property
has been allotted to the petitioner in the year 1874 and permission was also
granted to the petitioner to put up constructions in the said property and the
petitioner is in an interrupted actual possession of the said property and is not
an unauthorised occupant. The Court below ought to have seen that for the
past more than 150 years, petitioner is in possession and enjoyment of the
property pursuant to a grant in respect of the said property. The Court below
erred in observing that petitioner had not filed any documents to show that he
is in possession and enjoyment of the said property. The Order passed by the
Court below is liable to be set aside.
7.The case of the petitioner is as follows:
The appellant – Tanjore Union Club was commenced on 14.09.1872 as
a Library within the Thanjavur Municipality Complex for the benefit of
public. Thereafter, for the purpose of public benefit, the property in question
as well as the property in T.S. No.991/part were allotted to the Tanjore Union
https://www.mhc.tn.gov.in/judis
Club in the year 1874. Subsequently, in the year 1875, the Tanjore Union
Club building was constructed with the permission and approval of then
Thanjavur Municipality. The properties are in absolute possession and
enjoyment of the appellant for the past more than 150 years. Thereafter,
different buildings were constructed by the club with the approval of the
Thanjavur Municipal Corporation. As per this allotment, the appellant have
been paying the property tax, water tax and electricity bills. The respondent
send a notice dated 06.08.2021, stating that the appellant had unauthorizedly
occupied the petition mentioned property by providing a recreation club and
also demanding that the property is required for Smart City Development
Activities. On receipt of the said notice, the appellant had issued a reply
dated 13.08.2021 to the respondent. Then, the respondent had issued a notice
dated 18.08.2021, calling upon the appellant for enquiry on 27.08.2021. At
the time of enquiry, the appellant submitted a detailed statement with
documents. After the enquiry, the respondent had chosen to pass an order of
eviction of the appellant from the property by an order passed in
ROC.No.9706/2021/MCF3, dated 17.09.2021.
8.For Eviction proceedings under the Act, we have to ascertain
whether the possession of the petitioner is an unauthorised occupation. The
petitioner has claimed possession only through an allotment made by the
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respondent. But no document was filed by the petitioner to prove the said
allotment.
9. There is no doubt that the premises is belonged to the Thanjavur
Municipality. The petitioner has also admitted. The respondent has stated
that the petitioner is an unauthorised occupation.
10.The paragraph Nos.8 to 11 in the impugned order are extracted
hereunder:
“8. Notably Thanjavur Municipality passed a
resolution No.904 dated 31.10.1989 and requested The
Union Club of Thanjavur to surrender a portion of the
property said to have been leased out to The Union
Club for the public necessity to provide way to the bus
stand. There were several communications written to
The Union Club, Thanjavur more particularly on
26.2.1990. The Union Club never repudiated the
resolution of the Municipality particularly the written
explanation submitted by The Union Club admitted the
fact and also admitted the surrender of possession.
9.There is no quandary that the subject
property belongs to Thanjavur Municipal Corporation
and The Union Club was permitted to have possession
in the pre-independence period for some time.
However, there is no document produced by The Union
Club to prove its claim of lawful possession and
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enjoyment of the Municipal property at the present.
They have not produced any document to show the
extension or renewal of lease or any proceeding
authorizing their occupation during the present
period. Surprisingly The Union Club has not shown
any document for payment of any lease amount.
Admittedly The Union Club is not paying any lease
amount to Thanjavur Municipal Corporation at the
present.
10. The subject property is surrounded by
Municipal lands. The possession of The Union Club is
nothing but unauthorized. Their status can only be
that of a rank trespasser.
11. The claim of The Union Club that by
running a play area of various games, they are
catering to service of the general public and hence it
is a public enjoyment property cannot be
countenanced and it is without any substance. The
enjoyment of the club and its benefits by its members
can never be a justification to un authorizedly occupy
Municipal lands”.
11.So, the petitioner is occupying the property as lessee as admitted by
the Estate Officer of the Thanjavur Municipality. So, there is no unauthorised
occupation by the petitioner. The club/Revision petitioner is in possession
from 1874 which is not denied by the respondent.
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12.If it is so the respondent cannot take action against the petitioner
under the Tamil Nadu Public Premises Act, 1975. Definitely the Municipal
Corporation having records for the lease. They also requested the Union club
to surrender portion of land said to have been leased out.
13.The respondent has to proceed the matter by way of filing suit for
eviction and not under the Tamil Nadu Public Premises Act, 1975.
14.The petitioner has claimed lost grant which cannot be considered
since it was not raised in appeal.
15.The relevant portion of the Judgment reported in 2003 1 SCC 478,
The Properietors of Mathurasagar Bareja and Another Vs. Tulsi Ram and
Others, is extracted hereunder:
.............
“A. Grants - Lost grant - Held, cannot
be presumed to exist or have been made in
favour of an indefinite and indeterminate body
of persons, whose number may increase or
decrease over time, just because they inhabit
an identified and particular place - Where
there had been in existence an arrangement
between proprietors of Mathurasagar, a group
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of five irrigation tanks, and a fishing
community (Dhimars of Ramtek), since 1862
and arrangement had been repeatedly
renewed at time of settlement, and ultimately
owners filed suit for injunction against
appellants to prevent them catching fish, held
on facts, appellant representatives of the
fishing community could not claim a right to
fish in the tanks on basis of a lost grant.”
16.Since the respondent has admitted in the impugned notice that the
possession of the petitioner is legal, they cannot proceed action under the
said Act.
17.The respondent has admitted the possession as lease, only it has to
prove for when the lease was ended and from when the possession become
unauthorised. Without considering the admission in the impugned order, the
Appellate Court is erred in dismissing the C.M.A.No.15 of 2021.
18.Finally, this Civil Revision Petition is allowed by setting aside the
order, dated 07.10.2021 in C.M.A.No.15 of 2021 passed by the learned
Principal District Judge, Thanjavur confirming the order, dated 17.09.2021 in
Roc.No.9706/2021/MCF3, passed by the Estate Officer, Thanjavur City
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Municipal Corporation. No Costs. Consequently, connected miscellaneous
petitions are closed.
Index :Yes/No 29.04.2022
Internet:Yes/No
ksa
Note:In view of the present lock down owing to COVID-19 pandemic, a web
copy of the order may be utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct copy, shall be the
responsibility of the Advocate/litigant concerned.
To
The Principal District Judge,
Thanjavur.
https://www.mhc.tn.gov.in/judis
S.ANANTHI, J.
ksa
Order made in
C.R.P.(MD)No.1712 of 2021
29.04.2022
https://www.mhc.tn.gov.in/judis
