AI Structured Summary
Not yet generated for this judgment
Judgment
K.K. Sasidharan, J.—This Writ Petition is directed against the order dt. 24.12.2008 on the file of the First Respondent whereby the
petitioner was directed to vacate the property in T.S. No. H/1/10 Part with measurement 36.9 X 6.1 equivalent to 225.1 m2 in Pondicherry
Municipality.
Factual Matrix:
The first respondent as per notice in form ''A'' dt.11.8.2008 initiated eviction proceedings against the petitioner. On receipt of the notice, the
petitioner submitted his explanation on 4.9.2008 and the same was received by the first respondent on 8.9.2008. Subsequently the second
respondent as per notice dt. 7.11.2008 called upon the petitioner to appear for an enquiry on 13.11.2008. Since the petitioner was not in a
position to appear on the date of enquiry, he submitted a letter of request for adjournment and the same was granted and enquiry was re-posted to
20.11.2008. Though the petitioner appeared in the office of the second respondent on 20.11.2008, no enquiry was conducted and there was no
response either from the respondents or from their office and as such he left the office. In the meantime he received the impugned order dt.
24.12.2008 calling upon him to remove the encroachment within 35 days, and in the column earmarked for reasons, it was found mentioned as the
failure of the petitioner to attend the enquiry. According to the petitioner, the property absolutely belongs to him and the same is also evident from
prior legal proceedings. Therefore he seeks to quash the impugned order presumably on the ground of violation of the principles of natural justice.
Heard Mr. V. Raghavachari, the learned Counsel for petitioner and Mr. R. Natarajan, Learned Additional Government Pleader for
Pondicherry, appearing on behalf of the respondents. By consent the Writ Petition itself is taken up for disposal.
Submissions:
The learned Counsel for the petitioner contended that no effective opportunity was granted to the petitioner to submit his version, before passing
the impugned order. According to the learned Counsel there was no act of encroachment on the part of the petitioner and the petitioner had
documentary evidence to prove his contention and denial of opportunity to substantiate his contention vitiates the order, and prayed for a personal
hearing after setting aside the impugned order.
Thiru. R. Natarajan, Learned Additional Government Pleader for Pondicherry submitted that the petitioner is in unlawful possession of
Municipal land in a prime locality and it was only for the purpose of laying a road for the general public that the municipality initiated proceedings
for eviction. According to the learned Additional Government Pleader, there is no equity in favour of the petitioner, he being a rank trespasser. The
learned Additional Government Pleader further submitted that reasonable opportunity was given to the petitioner to submit his version and though
he was called for an enquiry, he failed to appear and as such the authorities have no other option than to pass final orders and accordingly he
prayed for dismissal of the writ petition.
Analysis:
On a perusal of the impugned order, I am of the view that there is no need to consider the merits of the claim made by the petitioner and the act
of encroachment alleged by the respondents, as there is no mention in the impugned order about the reason for passing the order of eviction.
Admittedly notice was issued to the petitioner in Form ''A'' and a reply was also submitted by the petitioner to the said notice. Subsequently
notice of enquiry was issued and enquiry was adjourned at the request of the petitioner. It is the case of the petitioner that no further enquiry was
conducted, though he appeared before the second respondent on 20.11.2008. According to the respondents the petitioner failed to avail the
opportunity of personal hearing which made them to pass an exparte order of eviction.
Statutory Provisions:
Chapter XVII of the Pondicherry Municipalities Act 1973 (Hereinafter referred as ''Act'') provides for eviction from municipal premises.
Section 414(a) defines municipal premises as any land or building belonging to or vested in the municipal council which includes garden, grounds
and outhouses etc.
Sub.Clause (b) of Section 414 defines ""unauthorized occupation"" thus:
414(b) ""unauthorised occupation"", in relation to any municipal premises, means the occupation, by any person of the municipal premises without
authority for such occupation and includes the continuance in occupation by any person of the municipal premises after the authority (whether by
way of grant or any other mode of transfer) under which he was allowed to occupy the premises the premises has expired or has been determined
for any reason whatsoever.
Section 415 of the Act provides for issue of notice to show cause against order of eviction and the said provision reads thus
Issue of notice to show cause against order of eviction:
(1) If the Commissioner is of opinion that any persons are in unauthorized 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
(b) require all persons concerned, that 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 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.
Section 416 of the Act provides for the procedure to be followed by the Commissioner in the matter of eviction.
Eviction of unauthorised occupants:
(1) If, after considering the cause, if any, shown by any person in pursuance of a notice u/s 115 and any evidence he may produce in support of the
same and after giving him a reasonable opportunity of being heard, the Commissioner is satisfied that the municipal premises are in unauthorized
occupation, the Commissioner may, on a date to be fixed for the purpose, make an order of eviction for reasons to be recorded therein directing
that the municipal premises shall be vacated by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to
be affixed on the outer door or some other conspicuous part of the municipal premises.
(2) If any person refuses or fails to comply with the order of eviction within thirty five days of the date of its publication under Sub-section (1), the
Commissioner or any other officer duly authorised by the Commissioner in this behalf may evict that person from, and take possession of, the
municipal premises and may, for that purpose, use such force as may be necessary.
The Commissioner of the Municipality while exercising the powers of a statutory authority for the purpose of eviction, is deemed to be a civil
court under the CPC 1908 in respect of
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents;
(c) any other matter which may be prescribed.
The Act provides an appeal to the District Judge or any other Judge not below the rank of a Subordinate Judge from the orders of the
Commissioner.
Section 421 of the Act gives finality to the order made by the Commissioner and such orders are immune from challenge in any suit, application
or execution proceedings.
Therefore it is clear that there is a prescribed Procedure contemplated for eviction of unauthorized occupants from municipal property. The
alleged encroachers are given an opportunity to produce evidence in support of their plea followed by an opportunity of personal hearing. The
enquiry provided is not an empty formality and the Commissioner is bound to consider the submissions of the encroacher and he should come to a
conclusion on the basis of the materials available on record. The act mandates that the Commissioner should be satisfied that municipal premises
are in unauthorized occupation and he should also record his reasons for coming to a particular conclusion.
In the present case the order is made in a printed format and as against the column earmarked for recording reasons, it was recorded thus:
REASONS
You have not attended the enquiry as scheduled in the enquiry notice. The site in question is required for laying of road
The reasons as found mentioned in the impugned order does not satisfy the statutory requirements as provided u/s 416 of the Act. The
Commissioner was expected to consider the nature of encroachment, including the extent, the explanation submitted by the encroacher and the
evidence produced by him in support of his defence as well as the submissions made by the encroacher during the time of personal hearing. The
order of the Commissioner should contain reasons in support of his conclusion.
The Commissioner was not expected to express the particular usage of the property after eviction, while initiating proceedings for eviction. It
was not open to an encroacher of a municipal property to contend that no reference was made in the show cause notice or in the eviction order
with regard to the requirement of the encroached land. Neither the show cause notice nor the final order of eviction would be bad on account of
absence of such details. The municipality is entitled to restore possession of its property and it is not the concern of the encroacher about the
purpose for which such property would be used after recovery of possession.
The definition of unauthorized occupation is so wide that it includes the continuance in occupation by any person of the municipal premises after
the expiry of the grant made by the Municipality. The municipality is entitled to recover possession of its property by resorting to the provisions as
contained in Chapter XVII of the Act. Therefore it is all the more necessary for the Commissioner to state the reasons for eviction.
It is trite that when the statute says that a particular thing has to be done in a particular manner, it should be done only in that manner. The
Provisions of the Act are applicable both to the authorities as well as to the encroachers. Therefore when the Act provides that the order of the
Commissioner in an eviction proceeding should contain reasons, he is bound to record the reasons. It is not a defence that the encroacher has
failed to attend the enquiry and as such there was no requirement to record reasons.
The petitioner has submitted his explanation to the show cause notice and even if he fails to attend the personal hearing, Commissioner was
obliged to pass a reasoned order. Therefore there was no justification for passing the order of eviction solely on account of the failure of the
petitioner to attend the personal enquiry.
The Pondicherry Municipalities Act is a self contained Code and the Act deals with various aspects of municipal administration including
preservation of its property.
STATUTORY REMEDY
The Act also provides the remedy available to an aggrieved against an order passed by the Commissioner, u/s 416 or 418 of the Act. As per
Section 420 of the Act the Appellate Authority shall be the District Judge or any other judge not below the Rank of a Subordinate Judge. The
Appellate powers are given to the courts with a view to consider the claim of the aggrieved on merits and as per law. Very often these appeals are
kept pending for several years, even though Act specifically provides that the proceedings shall be disposed of by the Appellate Authority as
expeditiously as possible. Therefore there should be an earnest attempt on the part of the appellate authority to dispose of the appeals within a
reasonable time.
Even though there is an appellate remedy available to the petitioner, I am of the considered view that, when the order impugned is ex-facie
illegal and made in violation of the prescribed procedure, a Writ Petition under Article 226 of the Constitution is maintainable against such orders.
Similarly when the order is bereft of details and no reasons are found mentioned in support of the order there is no point in relegating the
parties to the appellate forum and such course would be a time consuming process and drag the proceeding indefinitely.
Failure to give reasons - Denial of justice
The authorities while exercising quasi-judicial functions must record reasons in support of their conclusion. It is not necessary to pass a lengthy
order. In case, reasons are supplemented it would enable the appellate and Revisional Authorities to ascertain the materials considered by the
authority in arriving at a decision in a particular manner. In case reasons are not furnished in the order, it would result in failure of justice.
Legal Position:
The Hon''ble Supreme Court in Union of India (UOI) and Others Vs. Jai Prakash Singh and Another, indicated the necessity to state reasons
thus:
Reasons introduce clarity in an order. On plainest consideration of justice, the High Court ought to have set forth its reasons, howsoever brief, in
its order indicative of an application of its mind, all the more when its order is amenable to further avenue of challenge. The absence of reasons has
rendered the High Court''s judgment not sustainable.
Even in respect of administrative orders Lord Denning M.R. in Breen v. Amalgamated Engineering Union 1971 (1) All E.R. 1148 observed
The giving of reasons is one of the fundamental of good administration"". In Alexander Machinery (Dudley) Ltd. v. Crabtree 1974 LCR 120 it was
observed: ""Failure to give reasons amounts to denial of justice"". Reasons are live links between the mind of the decision taker to the controversy in
question and the decision or conclusion arrived at"". Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the
decision reveals the ""inscrutable face of the sphinx"", it can, by its silence, render it virtually impossible for the Courts to perform their appellate
function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial
system, reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can
know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other
words, a speaking out. The ""inscrutable face of a sphinx"" is ordinarily incongruous with a judicial or quasi-judicial performance.
To sum up
Therefore I am of the opinion that the impugned order is liable to be quashed solely on the ground of failure to record reasons as per the
mandate of Section 416 of the Act. Accordingly the impugned order dt. 24.12.2008 is quashed with liberty to the first respondent to pass fresh
orders as provided by Section 416 of the Act after granting an opportunity of personal hearing to the petitioner. The learned Counsel for the
petitioner as well as the learned Additional Government Pleader for Pondicherry have agreed for conducting the personal hearing on 16.2.2009 at
10.30 a.m. by the first respondent in the chamber of the Municipal Commissioner. Accordingly the petitioner is directed to appear before the first
respondent at 10.30 a.m. on 16.2.2009 for personal hearing. It is made clear that the enquiry is in continuation of the proceeding initiated by the
first respondent and the petitioner is not entitled for fresh notice. The first respondent is directed to consider the explanation submitted by the
petitioner and the evidence that maybe produced in support of his case during the personal hearing and pass fresh orders on merits and as per law
as expeditiously as possible and in any case on or before 6th March, 2009.
The Writ Petition is disposed of with the above direction. Consequently connected Miscellaneous Petition is closed. No costs.