Madras High Court
M.Balassoupramanien vs The Commissioner on 7 November, 2022
W.P.No.2480 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.11.2022
CORAM:
THE HON'BLE MR.JUSTICE R.SUBRAMANIAN
AND
THE HON'BLE MR.JUSTICE K. KUMARESH BABU
W.P.No.2480 of 2022
and W.M.P.Nos.2637 & 2639 of 2022
M.Balassoupramanien ... Petitioner
vs.
1.The Commissioner,
Puducherry of Municipality,
Puducherry.
2.The Executive Engineer,
Puducherry of Municipality,
Puducherry.
3.The Revenue Engineer-I,
Revenue Section-I,
Puducherry of Municipality,
Puducherry.
4.The Station House Officer,
Mudaliarpet Police Station,
Puducherry.
5.The Deputy Collector Revenue (North),
Revenue Department, Pondicherry.
(R5 suo motu impleaded vide order dt. 11.10.2022
made in W.P.No.2480/2022) ...
1/8
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W.P.No.2480 of 2022
Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India, for
issuance of a Writ of Certiorari, after calling for the concerned records relating to
the Order dated 27.01.2022 passed by the 3rd respondent and quash the same.
For Petitioner : Mr.M.Gnanasekar
For Respondent : Mr.T.P.Manoharan, Senior Advocate
for Mr.T.M.Naveen, for R1 to R3
Mr.V.Balamurugane
Additional Public Prosecutor (Pondy.)
ORDER
(Order of the court was delivered by R.Subramanian, J.)
Challenge is to the notice dated 27.01.2022 issued by the Puducherry
Municipality directing the petitioner to vacate and handover possession of the
land in T.S.No.25/3, which according to the Municipality belongs to it, within
three days. This notice is issued by the Revenue Officer of the Puducherry
Municipality. Though the learned counsel for the petitioner attempts to justify his
possession of the land in question under one Selvi who have been favoured with
certificate of residence and provided financial aid by the Puducherry Slum
Clearance Board, we do not find sufficient documentary support for the said claim
of the petitioner since the land that is stated to be in possession of Selvi bears a
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W.P.No.2480 of 2022
different survey number viz., S.No.26. However, the occupation of the petitioner
of the municipal land is admitted and Section 415 of the Puducherry
Municipalities Act, provides the procedures for eviction of unauthorized
occupation of municipal lands. The said provision reads as follows:
“Issue of notice to show cause against order of eviction.- (1) If the
Commissioner is of opinion that any persons are in unauthorised
occupation of any municipal premises and that they should be evicted, the
Commissioner shall issue in the manner hereinafter provided a notice in
writing calling upon all persons concerned to show cause why an order of
eviction should not be made.
(2) The notice shall, --- (a) specify the grounds on which the order
of eviction is proposed to be made; and require all persons concerned,
that is to say, all persons who are, or may be, in occupation of, or claim
interest in, the municipal premises, to show cause, if any, against the
proposed order on or before such date as is specified in the notice, being
a date not earlier than ten days from the date of issue thereof.
(3) The Commissioner shall cause the notice to be served by
having it affixed on the outer door or some other conspicuous part of the
municipal premises and in such other manner as may be prescribed,
whereupon the notice shall be deemed to have been duly given to all
persons concerned.
(4) Where the Commissioner knows or has reason to believe that
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W.P.No.2480 of 2022
any persons are in occupation of the municipal premises, then without
prejudice to the provisions of sub-section (3), he shall cause a copy of the
notice to be served on every such person in the manner provided in
section 467.”
2.After issuance of notice contemplated under Section 415, the
Commissioner is empowered to pass orders under Section 416. An appeal
provision is also available under Section 420 to an Appellate Authority, who shall
be a District Judge or a Judge not below the rank of a Subordinate Judge. The
grievance of Mr.M.Gnanasekar, learned counsel appearing for the petitioner is
that the procedure set out in the enactment for eviction of encroachment has not
been followed.
3.Mr.T.P.Manoharan, learned Senior Counsel appearing for the
Municipality would however contend that since the encroachment is of recent
nature as per the judgment of the Hon'ble Supreme Court in Ahmedabad
Municipal Corporation Vs. Nawab Khan Gulab Khan and Others reported in
(1997) 11 SCC 121, wherein the Hon'ble Supreme Court while dealing with
eviction of pavement dwellers held that if the encroachment is of a recent origin
then the principles of natural justice cannot be insisted upon. The Hon'ble
Supreme Court had observed as follows:
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W.P.No.2480 of 2022
...“If the encroachment is of a recent origin the need to follow the
procedure of principle of natural justice could be obviated in that no one
has a right to encroach upon the public property and claim the procedure
of opportunity of hearing which would be a tedious and time-consuming
process leading to putting a premium for high-handed and unauthorised
acts of encroachment and unlawful squatting.”
4.No doubt no person has a right to encroach upon the municipal land or
any other land meant for public purpose. If the Authority allows encroachment to
take place, they will have to necessarily follow the provisions of the enactment
which governs them to remove the encroachment also.
5.From the documents that have been produced particularly the
photographs placed before us by the Puducherry Municipality itself, we are
unable to conclude that the encroachment is of a recent origin. By the very nature
of the construction as well as its physical appearance, we are convinced that the
encroachment in question must have been there for a long time. Once the
enactment viz., the Puducherry Municipalities Act enumerates the procedure for
eviction of encroachers, we do not think that the Authorities could deviate from
such procedure and issue the notices akin to the impugned notice that too by an
Officer who is wholly unauthorized viz., the Revenue Officer and proceed with
eviction. We are therefore compelled to interfere and allow the Writ Petition. The
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W.P.No.2480 of 2022
Writ Petition will stand allowed and the impugned notice will stand quashed,
leaving it open to the Municipality to take appropriate proceedings under Sections
415 and 416 of the Puducherry Municipalities Act, 1973 for eviction of
encroachment. There shall be no order as to costs. Consequently, connected
miscellaneous petitions are closed.
(R.S.M., J.) (K.B., J.)
07.11.2022
Index: no
Speaking order: Yes
pam
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W.P.No.2480 of 2022
To
1.The Commissioner,
Puducherry of Municipality,
Puducherry.
2.The Executive Engineer,
Puducherry of Municipality,
Puducherry.
3.The Revenue Engineer-I,
Revenue Section-I,
Puducherry of Municipality,
Puducherry.
4.The Station House Officer,
Mudaliarpet Police Station,
Puducherry.
5.The Deputy Collector Revenue (North),
Revenue Department, Pondicherry.
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W.P.No.2480 of 2022
R.SUBRAMANIAN, J.
AND
K. KUMARESH BABU, J.
pam
W.P.No.2480 of 2022
07.11.2022
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