C. Chinnasamy Reddiar vs The Executive Officer, Musiri Town Panchayat, Musiri

G. Rajasuria, J.—This second appeal is focussed as against the Judgment and Decree dated 08.02.2000 passed in A.S. No. 3% of 1999

by the Principal Subordinate Judge, Trichy, confirming the Judgment and Decree, dated 29.08.1996 passed in OS. 39 of 1995 by the District

Munsif Court, Musiri. Heard the learned Counsel for the appellant. Despite printing the name of the respondent, no one appeared.

The parties, for convenience sake, are referred to hereunder according to their litigative status before the trial Court.

Broadly but briefly, precisely but narratively, the case of the plaintiff as stood exposited from the plaint could be portrayed thus:

The plaintiff is the licensee of Shop No. 5, Musiri Town Panchayat Bus Stand, Musiri Kaspa, Tiruchirappalli District under the defendant. It so

happened that the plaintiff had put up in the HJFA portion marked in the plaint plan in front of the shop No. 5, near Salem-Trichy Main Road with

the permission of the defendant municipality, asbestos sheet roof and also put up grill gate. There is a 5 feet lane situated to the west of the Shop

No. 5, which was being used by the public as an open air latrine causing nuisance to the said corner shop viz. the plaintiff''s shop No. 5. Hence, the

plaintiff though fit to raise 5 feet compound wall in ABCD portion in the plaint plan and put asbestos sheet roof over if for securing his own hygienic

atmosphere. he Municipality has tried to high-handedly remove such asbestos sheet covered areas, thereupon the suit was filed.

Denying and challenging the plaint averments the defendant Municipality filed the refutatorv written statement, the nitty-gritty of it would run thus:

Only temporary permission was granted for the plaintiff to put asbestos sheet in the HJFA portion and plaintiff is having no right to cover that area

permanently. ABCD area is a public lane over which the plaintiff has no right to put up any construction temporary or permanent. Accordingly, the

Municipality prayed for the dismissal of the suit.

The trial Court framed the relevant issues.

During trial, the plaintiff examined himself as P.W.1 and Exs.A.1 and A.14 were marked. On the side of the defendant D.W.1 was examined

and Ex.B.1 was marked. Court Documents Exs.C.1 and C.2 were marked.

Ultimately, the trial Court partly decreed the suit granting relief to the effect that the defendant is having no right arbitrarily to evict the plaintiff

from the HFAC area covered by asbestos sheet. However, regarding ABCD portion no injunction was granted and it was dismissed.

Being aggrieved by the partial dismissal of the suit, the plaintiff preferred appeal in A.S.No.396 of 1999 dated 08.02.2000 on the Principal

Subordinate Judge, Trichy, which Court dismissed the appeal confirming the judgment and decree of trial Court.

Being aggrieved by and dissatisfied with, the judgment and decree of both the Courts below in rejecting the prayer of the plaintiff relating to the

ABCD portion, the present second appeal has been filed on the grounds inter alia thus:

Whatever be the circumstances, the person in possession should not be disturbed arbitrarily without any notice and conducting enquiry. The

Municipality being a public body is not expected to arbitrarily and high- handedly act.

At the time of the admission of the Second Appeal, my learned Predecessor framed the following questions of law: Whether the Courts below

are right in law in holding that the Ram Rattan and Others Vs. State of Uttar Pradesh, will not apply to the facts of the case especially when the

respondent is not entitled to take any forcible action?

The Point:

A re ''sume'' of facts absolutely necessary and germane for the disposal of this second appeal would run thus:

Indubitably ABCD portion in the plaint plan is situated to the west of the Shop No. 5, which was licenced to the plaintiff by the defendant and

ABCD portion is a lane over which the plaintiff is having no right. However, he would try to point out that there was a resolution passed by the

Municipality authorising the plaintiff to raise a wall and cover it with asbestos sheet.

The learned counsel for the plaintiff placed reliance on the decision of the Division Bench of this Court in V. Arunagiri and others Vs. The

Divisional Engineer, National Highways, Thiruvannamalai and others, . The gist and kernel of the same was to the effect that even the trespasser in

established possession of an area, he should not be evicted otherwise than under due process of law. At this juncture 1 recollect the decision of the

Division Bench of this Court in Consumer Action Group Vs. The State of Tamil Nadu and The Chennai Metropolitan Development Authority, . An

excerpt from it would run thus:

It is also seen that some of the violators have encroached upon the roads by constructing steps, platforms, etc. right on the pavements or on the

roads. It is brought to our notice that there are encroachments on busy streets like Ranganathan Street, Natesan Street, Madley Road, etc. It is

necessary to direct the municipal authorities to clear the encroachments in order to ensure smooth flow of traffic on these streets and roads. It is

needless to say that there is no necessity of issuing notice for the removal and demolition of the encroachment in public streets and roads, as such

encroachment shall be liable to be removed forthwith. So also the electricity connection or sewerage connection facilities shall be liable to be

disconnected forthwith.

Here, the pertinent question arises as to whether in respect of the lane the plaintiff can press into service the above said decision. The decision

of the Full Bench of this Court cited supra is specific on the point that such encroachment of land and street could be removed even without notice

public roads. Public lane and other areas where public could have access are all coming under the public domain. If there is any encroachment,

then the authorities are not expected to wait and waste time in issuing notice and all as such encroachments are detrimental to the public and

emergent action for removal are required.

Both the Courts below even though in so many words have not set out in their judgment set out those legal principles, yet having such

principles in mind only while granting remedy in favour of the plaintiff in respect of HFAG area rejected the prayer for injunction in respect of

ABCD area. I could see no infirmity in the decision taken by both the Courts below.

The learned Counsel for the appellant/plaintiff would submit that even though the official D.W.1 would state that there was a resolution,

nonetheless he did not produce it before the Court. D.W.1 never stated before the Court that there was any resolution empowering or authorising

the plaintiff to put up asbestos sheet or compound wall in ABCD lane area, but what are all he stated was that there was a resolution relating to

other HJFA area. Admittedly, there is no written authorisation obtained from the Municipality to put up such structure in ABCD lane area.

Accordingly, the substantial question of law is answered.

The grievance of plaintiff that in the ABCD lane area the public were using as open air latrine, warrants that the defendant should necessarily

see to it after taking possession of it that it is kept clean and in hygienic condition. In the result, there is no merit in this second appeal and the same

is dismissed, No costs.