P.V. Vijaykumar and others vs The Commissioner, Dharmapuri Municipality and another

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 Chinnaswamy Naidu Street, Sankodi-puram Street and Telephone Exchange Street,

around Rajagopal Gounder Park and opposite to Municipal Bus Stand, Dharma-puri 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, Senkodipuram

Street and Telephone Exchange Street near Rajagopal Gounder Park in Dharmapun 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 been (given) 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 (sic) 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 in not following any procedure prescribed by law offends Art. 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 paras 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 thereof Rs.

100/-p.m. and for every additional occupation of 1 sq. mtr. or part thereof Rs 15- p.m. as per S. 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 vary 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-sec. (6) of S. 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-sec. (6) of S. 183 of the Act. It is stated that the temporary

occupiers has been removed on 23-2-91 from the respective places only to execute the project works.

Mr. P. K. Rajagopal, learned counsel for the petitioners contends that no notice has been given to the petitioners and sub-sec. (6) of S. 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 exercis-able under sub-sec. (2) of S. 183 and as such if there is no

licence existing in favour of the petitioners, they can be thrown out. S. 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-sec. (1) nor a lease under sub-sec. (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-sees. (1) and (3).

(6) 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-sec. (1) or (2) to be removed, and the cost of so doing shall be recoverable in the manner provided in

S. 344 from the person to whom the licence was granted.

Sub-sec. (3) of S. 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-sec. (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-sec. (6) enables the executive authority without notice to

remove any construction put up under sub-sec. (2) of the Act. In the decision in Olga Tellis and Others Vs. Bombay Municipal Corporation and

Others, the Supreme Court considered Ss.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 S. 314 of that 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 S. 3(w) ''street'' includes a causeway, footway or passage. In

order to decide whether the procedure prescribed by S.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, S. 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 S.314 provides is that the Commissioner may, without notice, cause an enroachment to be removed. It does

not command that the Commissioner shall, without notice, cause an encroachment to be removed. Putting it differently, S.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 sustain the validity of the law. Reading S. 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. S.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 procedure 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.

6-8. 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

Art. 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 Art. 226 of the Constitution, however, in this case I find

that the first respondent-Municipality acted arbitrarily and unlawfully in 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-sec. (6) of

S. 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 abovesaid 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 encro-achers. 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.

10A. In view of the decisions of the Supreme Court cited supra, it 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.

Petition allowed.