Brinda Muthuswami vs The Tamil Nadu Small Industries Development Corporation Ltd. and Others

Gokulakrishnan, J.—The petitioner in W.P.No.3875 of 1981, is the appellant herein. She has filed the said writ petition for issue of a writ of

certiorari or other appropriate writ or direction in or to quash the notice issued by the Development Officer SIDCO. Industrial Estate, Guindy

(second respondent) dt 12.05.1981 under the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants)Rules 1978 (hereinafter referred

to as the Rules).

The short facts for the purpose of this case are as follows : According to the appellant, she was occupying No. C-52 Industrial Estate, Guindy

for the purpose of her business as and from 1.1.1977. It is unnecessary for us to deal with the proceedings of the second respondent for recovery

of arrears from the appellant and also the proceedings of the Bank against the appellant and other to recover its dues. The second respondent as

per Rs. 3 of the Rules issued a notice under Form A to the appellant calling upon her to show cause on or before ten days of the date of issue of

this notice as to why an order of eviction should not be made under sub-sec. (1) of S. 4 of the Tamil nadu Public Premises (Eviction of

Unanuthorised Occupants) Act 1975 (Tamil Nadu Act 1 of 1976) (hereinafter referred to as the Act). To this notice the appellant sent a reply

alleging that her tenancy has been regularised, that she is in occupation after regularising her occupation and that the authorities must drop the

proceedings against her. She has also requested for a personal hearing to represent her case. Subsequent to this reply, the second respondent

issued notice under Form B as per Rs. 4 of the Rules intimating the appellant that an enquiry will be held at 11 a.m. on 30.04.1981, at the

Industrial Estate. Guindy and directing her to attend the enquiry and produce any evidence oral or recorded, in support of her claim on

04.05.19681, at 3 p.m. the enquiry was conducted and the report as to the state of fairs as on that date was recorded by the second respondent.

Subsequently the second respondent issued notice as per Form C prescribed under R. 6 of the Rules. In that Rule it is stated as follows :-

Whereas possession of the premises described hereunder which is the property of the Government authority has been taken from you in

pursuance of the eviction proceedings taken under sub-sec (1) of S. 5 of the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants)

Act 1975 (Tamil Nadu Act 1975), you are hereby required to remove or cause to be removed the property of the description mentioned below

mentioned below remaining on the premises within 14 days from the date of service of the notice in default of which action will be taken to remove

and dispose it of an public auction"".

In that notice, the description of the factory unit in the possession of the appellant has been given. It is this notice that was questioned in W.P.

3875 of 1981. The learned single Judge of this court dismissed the writ petition by passing the following order :-

Mr. N.V.Balasubramaniam, learned counsel appearing for the appellant submitted that the writ petition is maintainable in view of the decision

rendered by a Bench of this court in the General Manager. United India Fire and General Insurance Co, Ltd by A.A.Nathan, 1981 LIC 1076. The

learned counsel also points out that the decision rendered by a single Judge of this court in R. Eucharista v. State of Tamil Nadu, (1980) 2 Lab Lj

363 will support his contention. It is further submitted that inasmuch as an order under S. 5 of the Act has not been passed by the officer

concerned, the impugned notice is wholly incompetent. He also submitted that the third respondent who is the subsequent allottee of the Unit by

name M/s. Date Coatings, Madras is not a proper party to be added.

As against this argument Mr. V.T.Arasan, learned counsel appearing for the respondents 1 and 2 submitted that the notice in Form C which is

questioned in the writ proceedings is the notice that is contemplated under S. 5 of the Act and as such the notice issued in Form C is competent

and valid. He further submitted that Form C notice issued as per the rules is for passing an order under S. 5 of the Act.

Mr. S.Govind Swaminathan, learned counsel appearing for the third respondent, also submitted that Form C notice was only under S. 5(1) of

the Act and that must be equated to the order of eviction contemplated under S. 5(1) of the Act.

Mr. N.V.Balasubramaniam learned counsel for the appellant in reply submitted that without an order under S. 5 of the Act, the authority should

not have jumped from S. 4 to S. 6 of the Act and as such the notice which actually must be deemed as a notice under S. 6 has to be quashed.

Inasmuch as the learned single Judge of this court had disposed of the matter only on the ground that the writ petition is not maintainable against

respondents 1 and 2 he has not adverted to the competency appearing for the appellant and also conceded by the learned counsel appearing for

the respective respondents herein that the Bench decision in the General Manager. United India fire and General Insurance Co, Ltd. v

A.A.Nathan, 1981 LIC 1076 clearly establishes that the writ will lie against respondents 1 and 2. Hence we hold that the appellant''s writ petition

is maintainable as against respondents 1 and 2.

Section 4 of the Act contemplates issue of notice to show cause against an order of eviction. By Form A respondents 1 and 2 called on the

appellant as to why an order of eviction should not be made under sub-sec (1) of S. 4 of the Act. For the said notice the appellant has sent a reply

dated 15.04.1981 alleging that her tenancy has been regularised that she has paid rent for the Unit from 24.07.1980 to March 1981 at the rate of

Rs. 636 per month that the allegation that the appellant is in unauthorised occupation of the premises C-52 Industrial Unit, is unfounded and arrived

at without materials and reasons, and that the proposed action against the appellant has to be dropped. In that reply the appellant has also asked

for a personal hearing. Subsequent to this reply, the second respondent issued a notice under Form B as per R. 4 of the Rules intimating the

appellant that one S. Subbiah. Estate Officer/Development Officer. Industrial Estate, Guindy will hold and enquiry at 11 a.m. on 30.04.1981 at the

office of the Development Officer. Industrial Estate, Guindy, Madras -32, that the appellant has to attend at the place named above and that she

may produce any evidence, oral or recorded in support of her claim. There was an enquiry on 4.5.1981 at about 3 p.m. by the second respondent

and he has recorded the factum of the enquiry. Subsequently, the impugned notice was issued under Form C. We are not able to see any order of

eviction as such passed by the second respondent or any other competent authority within the meaning of S. 5 of the Act. Form C was issued in

pursuance of Rs. 6 of the Rules R. 6 of the Rules reads as follows :-

Notice for the disposal of property remaining in the premises (1) The notice referred to in sub-sec (1) of S. 5 shall be in Form C.

(2) The notice shall be served by delivering a copy to the persons from whom the possession of public premises has been taken or to any adult

male member of the family at his usual place of abode or to his authorised agent, or by affixing a copy thereof on some conspicuous part of his

known place of residence or on some conspicuous part of the premises evicted.

(3) A copy of the notice shall also be published by beat of tom by affixing on the board of the village chavadi or in any other public place such as

the village temple mosque or church, village school or in the notice board of the office of the Collector or Revenue Divisional Officer, Taluk

Tahsildar or Deputy Tahsildar Village or Town Panchayat, Panchayat Union or City Municipality Corporation as the case may be"".

It is clear from R. 6 of the Rules that this rule is intended for giving notice for the disposal of property remaining in the premises . R. 6 (1) of the

Rules states that the notice referred to in sub-sec. 91) of S. 5 shall be in Form C. That is why Mr. V.T.Arasan and Mr. S.Govind Swaminathan,

learned counsel appearing for the respective respondents submitted that the notice under Form C issued is in effect the order of eviction

contemplated under S. 5 of the Act S. 8 of the act deals with disposal of property left on public premises by unauthorised occupants. R. 6 of the

Rules which specifies Form C also states that Form C notice is for the property remaining in the premises.

Section 5 of the Act reads as follows :-

Eviction of unauthorised occupants - (1) If after considering the cause, if any, shown by any person in pursuance of a notice under S. 4 and any

evidence he may produce in support of the same and after giving him a reasonable opportunity of being heard the estate officer may make an order

of eviction, for reasons to be recorded therein directing that the public premises shall be vacated, on such date as may be specified in the order 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 public premises.

(2) If any person refuses or fails to comply with the order of eviction under sub-sec. (1) the estate office or any other officer duly authorised by the

estate officer in this behalf may evict that person from and take possession of the public premises and may, for that purpose, use such force as may

be necessary.

There is nothing in S. 5 of the Act which refers to the notice contemplated under R. 6 of the Rules. On the other hand the above section is

clear and categoric to the effect that after giving the party concerned a reasonable opportunity of being heard the Estate Office, if satisfied that the

premises is unauthorisedly occupied, may make an order of eviction for reasons to be recorded therein. It is only subsequent to the order of

eviction and taking possession under sub-sec (2) of S. 5 of the Act, disposal of he property left on public premises by unauthorised occupants

arises. S 5 of the Act definitely contemplates (1) notice under S. 4 of the Act (2) recording of evidence that maybe produced in support of the

notice under S. 4 of the Act : (3) giving reasonable opportunity to the unauthorised occupant to represent the case : (4) the Estate Officer must be

satisfied that the public premises is unauthorisedly occupied (5) the Estate Officer afterwards has to make an order of eviction (6) such an order of

eviction must be supported by reasons : (7) that order must direct the unauthorised occupier to vacate the premises on such date as may be

specified in that order and (8) the copy of the said order has to be affixed on the outer door or in some other conspicuous part of the public

premises in question. When all these requirements are satisfied, it will be deemed that a proper order under S 5 of the Act has been passed. If such

an order is passed the affected party has an opportunity of filing an appeal to the Appellate Authority of the district in which the public premises is

situated or such other judicial officer in that district of not less than such years standing as may be prescribed and as the District Judge may

designate in this behalf. S. 9 of the Act reads as follows :-

Appeals - (1) An appeal shall lie from every order of the Estate Officer made in respect of any public premises under S. 5 or S. 7 to an appellate

officer who shall be the District Judge of the district in which the public premises are situated or such other judicial officer in that district of not less

than such number of years standing as may be prescribed and as the District Judge may designate in this behalf.

(2) An appeal under sub-sec (1) shall be preferred within such period as may be prescribed.

(Rest of the section not reproduced as unnecessary for the purpose of this case.)

Thus, we are able to see that a substantial right is conferred upon the unauthorised occupant against whom orders of eviction are passed to prefer

an appeal. S. 5 of the Act also cast duties upon the second respondent before invading S. 6 of the act. It is not stated before us that before the

impugned notice, any order of eviction has been passed, and any proceedings taken for securing possession. When a substantial right has been

given to a party by the provisions of an enactment the authorities concerned cannot ignore the same and invoke the provision which arises only

subsequent to the order of lawful eviction that has to be passed under take in the rule by stating that Form C is for S 5(1) of the Act, that will not

absolve the authorities concerned from passing an order of eviction as contemplated under S. 5 of the Act.

For all these reasons, the impugned notice is quashed with the result, the writ appeal is allowed. No costs It is made clear that the authorities

concerned can proceed to make an appropriate order of eviction pursuant to the enquiry already held.

Appeal allowed.