P.V. Vijayakumar and Others vs The Commissioner, Dharmapuri Municipality and Another

Bakthavatsalam, J.—The prayer in the writ petition is as follows:

For the reasons stated in the accompanying affidavit the petitioners herein pray that this Honourable Court may be pleased to issue a writ, order or

direction specifically in the nature of a writ of mandamus, directing the respondents and their subordinates to forbear from dispossessing or evicting

the petitioners from their respective shops situated at Chinnasamy Naidu Street, Sankodipuram Street and Telephone Exchange Street, around

Rajagopal Gounder Park and opposite to Municipal Bus Stand, Dharmapuri without following due process of law and natural justice.

The 16 writ petitioners have been running small business in shops measuring about 8'' x 6'' situate at Chinnaswamy Naidu Street, Sankodipuram

Street and Telephone Exchange Street near Rajagopal Gounder Park in Dharmapuri Town, opposite to the Dharmapuri Bus Stand for the last 15

years and the petitioners are running various types of businesses, namely tea shop, banian shop, beeda stall, garment shop etc. It is alleged that the

entire strip of vacant land is a poramboke land belonging to Dharmapuri Municipality. It is stated that the petitioners have been running their petty

trades in the small tiled sheds, constructed by themselves in the said poramboke land, and none of these shops is causing any obstruction to the

public or traffic. It is alleged that the first respondent-municipality also recognised these encroachments and has been levying encroachment fees all

these years and most of the shops have electricity connection. It is also alleged that superstructure tax also has been levied and collected by the

Municipality. While so, on 23.2.1991 at about 4.00 P.M. about 100 people consisting of municipal workers and policemen came to the shops of

the petitioners and without giving the petitioner any opportunity began violently demolishing the tiled sheds in which the petitioners have been

running their shops. It is also stated that the goods stored in the shops were damaged, and the petitioners immediately sent telegrams and petitions

to the Authorities and they also went on hunger strike for three days and there was no reaction from the authorities. The petitioners are also

threatening that they will be thrown away forcibly from the place unless they vacate the place within 15 days. It is stated that the entire operation

has been carried out in gross abuse of power. It is alleged that the action of the respondents in demolishing their sheds, damaging their goods and

threatening to evict them is illegal and arbitrary. It is also stated that no notice under Land Encroachment Act has been given to the petitioners. It is

stated that the action of the respondents is not following any procedure prescribed by law offends Article 21 of the Constitution of India. With

these allegations the petitioners came up before this Court.

Notice of motion has been ordered by me on 11.3.1991. Mr. P. Arivudainambi, learned Government Advocate takes notice on behalf of the

respondents and undertakes that the petitioners will not be dispossessed and an order of status quo was ordered on 14.3.1991.

A counter affidavit has been filed by the first respondent. In paragraph 5 and 6 of the counter affidavit it is stated that the first respondent

Municipal Council has passed a resolution on 11.1.1984 to levy fees for the temporary occupation of lands within the new bus stand for putting up

bunk shops, and the Council has also resolved to collect the encroachment fees as per the old rate, i.e. for the first 10 sq.metrs or part there of Rs.

100 p.m., and for every additional occupation of 1 sq.mtr. or part there of Rs. 15 p.m. as per Section 183(2) of the Act. It is stated that a

notification to that effect was issued by the Dharmapuri Municipality and in pursuance of the resolution encroachment fees has been collected from

the temporary occupiers and they were allowed to continue till 30th March of every subsequent year. It is stated that lot of persons have not paid

the encroachment fees and in September, 1989 orders have been issued for taking up various projects under Municipal Urban Development Fund

at an outlay of Rs. 43.18 crores in the Corporations of Madras and Coimbatore and 26 Municipalities and among the 26 Municipalities the first

respondent Municipality has also been covered under the projects. In view of this, the first respondent Municipality had taken a stand not to collect

encroachment fees for the period beyond 31.3.1990. It is stated that the first respondent refused to accept the encroachment fees beyond

31.3.1990 in order to commence the work. It is stated that since all the petitioners have occupied the road and blocked the Main road, the width

of the Road has become very narrow and thereby the public at large and motorists were put to hardship. It is stated that the first respondent took

steps to remove all the temporary shops as per Sub-section (6) of Section 183 of the Tamil Nadu District Municipalities Act, 1920, hereinafter

referred to as the Act. It is stated that as long as the first respondent had not permitted the petitioners to run the shops in the said place beyond

31.3.1990 they have no right to run the business. The counter affidavit defends the action taken under Sub-section (6) of Section 183 of the Act. It

is stated that the temporary occupiers have been removed on 23.2.1991 from the respective places only to execute the project works.

Mr. P.K. Rajagopal, learned Counsel for the petitioner contends that no notice has been given to the petitioners and Sub-section (6) of Section

183 of the Act will not apply to the facts of this case, and therefore the entire action taken by the first respondent is illegal and if this Court comes

to the conclusion that the action of the first respondent in removing the petitioners from the places in question, is arbitrary in nature, it is open to this

Court to put back the petitioners in possession in the same place from where they were dispossessed. Per contra, Mr. P. Arivudainambi, learned

Government Advocate for the first respondent contends that the power is exercisable under Sub-section (2) of Section 183 and as such if there is

no licence existing in favour of the petitioners, they can be thrown out. Section 183 of the Act is to the following effect:

183(1). The Council may grant a licence, subject to such conditions and restrictions as it may think fit, to the owner or occupier of any premises to

put up verandas, balconies, sun-shades, weather-frames and the like, to project over a street, or in streets in which the construction of arcades has

been sanctioned by the council, to put up an arcade or to construct any step or drain-covering necessary for access to the premises.

(2) The executive authority may grant a licence, subject to such conditions and restrictions as he may think fit for the temporary erection of pandals

and other structures in a public street vested in the council or in any other public place the control of which is vested in the council.

(3) The council shall have power to lease road sides and street margins vested in it for occupation on such terms and conditions and for such

period as the council may fix.

(4) But neither a licence under Sub-section (1) nor a lease under Sub-section (3) shall be granted if the projection, construction or occupation is

likely to be injurious to health or cause public inconvenience or otherwise materially interfere with the use of the road as such.

(5) The State Government may, by notification restrict and place under such control as they may think fit, the exercise by municipal councils in

general or by any municipal council in particular of the powers under Sub-sections (1) and (3).

(6) On the expiry of any period for which a licence has been granted under this section, the executive authority may, without notice, cause any

projection or construction put up under Sub-section (1) or (2) to be removed, and the cost of so doing shall be recoverable in the manner

provided in Section 344 from the person to whom the licence was granted.

Sub-section (3) of Section 183 enables the council to lease the road sides and street margins vested in it for occupation on such terms and

conditions and for such period as the council may fix. There is power to the council to lease the road side margin. Sub-section (2) enables the

Executive Authority to grant a licence, subject to such conditions and restrictions for the temporary erection of pandals and other structures in a

public street vested in the council or in any other public place the control of which is vested in the council. Sub-section (6) enables the Executive

Authority without notice to remove any construction put up under Sub-section (2) of the Act. In the decision in Olga Tellis and Others Vs.

Bombay Municipal Corporation and Others, , the Supreme Court considered Section 312, 313 and 314 of the Bombay Municipal Corporation

Act, 1988, and upheld the validity of the procedure u/s 313 of the Bombay Municipal Corporation Act for removal of encroachments from

pavements and; public streets. However, at page 199 the Supreme Court observed thus:

The challenge of the petitioners to the validity of the relevant provisions of the Bombay Municipal Corporation Act is directed principally at the

procedure prescribed by Section 314 of the Act, which provides by Clause (a), that the Commissioner may, without notice, take steps for the

removal of encroachments in or upon any street, channel, drain etc. By reason of Section 3(w) ''street'' includes a causeway, footway or passage.

In order to decide whether the procedure prescribed by Section 314 is fair and reasonable, we must first determine the true meaning of that

section because, the meaning of the law determines its legality. If a law is found to direct the doing of an act which is forbidden by the Constitution

or to compel, in the performance of an act, the adoption of a procedure which is impermissible under the Constitution, it would have to be struck

down. Considered in its proper perspective Section 314 is in the nature of an enabling provision and not of a compulsive character. It enables the

Commissioner, in appropriate cases, to dispense with previous notice to persons who are likely to be affected by the proposed action. It does not

require and, cannot be read to mean that, in total disregard of the relevant circumstances pertaining to a given situation, the Commissioner must

cause the removal of an encroachment without issuing previous notice. The primary rule of construction is that the language of the law must receive

its plain and natural meaning. What Section 314 provides is that the Commissioner may, without notice, cause ah encroachment to be removed. It

does not command that the Commissioner shall, without notice, cause an encroachment to be removed. Putting it differently, Section 314 confers

on the Commissioner the discretion to cause an encroachment to be removed with or without notice. That discretion has to be exercised in a

reasonable manner so as to comply with the constitutional mandate that the procedure accompanying the performance of a public act must be fair

and reasonable. We must lean in favour of this interpretation because it helps to sustain the validity of the law. Reading Section 314 as containing a

command not to issue notice before the removal of an encroachment will make the law invalid.

Para. 45. It must further be presumed that, while vesting in the Commissioner the power to act without notice, the Legislature intended that the

power should be exercised sparingly and in cases of urgency which brook no delay. In all other cases, no departure from the audi alteram partem

rule (hear the other side) could be presumed to have been intended. Section 314 is so designed as to exclude the principles of natural justice by

way of exception and not as a general rule. There are situations which demand the exclusion of the rules of natural justice by reason of diverse

factors like time, place, the apprehended danger and so on. The ordinary rule which regulates all procedures is that persons who are likely to be

affected by the proposed action must be afforded an opportunity of being heard as to why that action should not be taken. The hearing may be

given individually or collectively, depending upon the facts of each situation. A departure from this fundamental rule of natural justice may be

presumed to have been intended by the Legislature only in circumstances which warrant it. Such circumstances must be shown to exist. When so

required, the burden being upon those who affirm their existence.

In Wazir Chand Vs. The State of Himachal Pradesh, , the Supreme Court has held that whenever there is infringement of fundamental right of a

citizen, writ can issue to deliver possession of the goods seized in that case illegally. The principles laid down in the above decision applies equally

in all fours to the facts of the present case. In my view, taking possession of shops arbitrarily amounts to infringement of fundamental right under

Article 14 of the Constitution and the relief could be granted to the petitioners to put back in possession of their sites.

Though ordinarily this Court could not decide the question of title of the property under Article 226 of the Constitution, however, in this case, I

find that the first respondent-Municipality acted arbitrarily and unlawfully interfering with the possession of the petitioners. It is but proper that the

first respondent-Municipality should be directed to put back the petitioners in possession of the sites, so that they can construct temporary

structures and continue their trade in the said places. In similar circumstances, the Supreme Court held so in Mohammed Hanif Vs. The State of

Assam, .

The learned Counsel for the first respondent contends that the first respondent took steps to remove all temporary shops as per Sub-section (6)

of Section 183 of the Act and the Government had issued orders for taking up various projects under Municipal Urban Development Fund. From

the counter affidavit filed by the first respondent, I am not able to see that any progress has been made in such projects. The observations of the

Supreme Court in the above said decisions extracted supra will squarely apply to the facts of this case and as such, even if the petitioners are

dispossessed as stated in the counter affidavit, a direction has to be issued to the first respondent to put them back in the same place from where

they are dispossessed. It is open to the first respondent to take action against the petitioners according to law after giving notice to the petitioners,

if they are encroachers. It is well settled that even assuming that a person is an encroacher, procedure known to law has to be followed before

removing him from his place. It has not been done so in this case by a Public Authority.

In view of the decisions of the Supreme Court cited supra, in my view, a direction has to be issued to the first respondent to put back the

petitioners in possession of their places as on 23.2.1991 within one month. The writ petition will stand allowed. No costs.