Dismissed

Kalivaradhan, v. the Commissioner, Mannadipet

Madras HC17 Apr 2013WP/10667/2006

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition seeking certiorari to quash an eviction order dated 27.01.2006 passed by the Appellate Authority under the Public Premises Act. The Court held that the petitioner was an unauthorized occupant of Government land and the appellate authority acted within its jurisdiction on merits.

What did the court decide?

Writ petition dismissed. No order as to costs. Connected miscellaneous petitions closed.

Kalivaradhan, Vs the Commissioner, Mannadipet — Property and Title | Madras HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 17.04.2013

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CORAM

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THE HONOURABLE MR. JUSTICE S.TAMILVANAN

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W.P.No.10667 of 2006

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W.P.M.P.No.12075 /2006 and W.V.M.P.No.1402/2006

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Kalivaradhan .. Petitioner
/vs/
1. The Commissioner,
Mannadipet Commune Panchayat
Thirubuvanal
Pondicherry
2. The Estate Officer,
Villianur,
Pondicherry.
3. The II Additional District Judge,
(Principal District Judge
II Additional District Judge Incharge)
Appellate Authority,
Pondicherry. .. Respondents

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Writ petition filed under Article 226 of the Constitution of India, seeking an order in the nature of Certiorari calling for the records pertaining to judgment dated 27.01.2006 made in M.A.No.2 of 2004 on the file of the third respondent herein namely, the II Additional District Judge (Principal District Judge, II Additional District Judge Incharge), Appellate Authority, Pondicherry and quash the same.

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For Petitioner : M/s.T.Dhanyakumar For Respondent : Mr.R.Sreedhar Government Advocate (P)

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Heard both the learned counsel appearing for the petitioner as well as the learned counsel appearing for the second respondent.

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This writ petition has been filed under Article 226 of the Constitution of India seeking an order in the nature of Certiorari, calling for the records pertaining to the Judgment, dated 27.01.2006

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made in M.A.No.2 of 2004 on the file of the third respondent herein.

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The petitioner has stated that he is in occupation of premises in R.S.No.291/2, measuring an extent of 0.19.00 hectares in Kalitheerthalkuppam village for about 30 years. All of a sudden, the second respondent issued Form – A notice, dated 19.09.2003 to the petitioner to show cause, why an order of eviction should not be made and the petitioner filed a detailed written statement, whereby raised his objection to the second respondent not to evict him from the land. According to the petitioner, he is in continuous possession over 30 years and paying necessary taxes to the Government and further the second respondent passed an order in Form B, dated 27.11.2003, directing the petitioner to vacate and hand over the possession within 30 days from the date of the order.

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Aggrieved by the order passed by the second respondent, the petitioner herein preferred an appeal in M.A.No.2 of 2004 under Section 9(2)(a) of Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (hereinafter referred to as an Act), before the third respondent, the II Additional District Judge, Pondicherry. After considering the oral and documentary evidence, the third respondent by judgment dated 27.01.2006 dismissed the appeal. Aggrieved by which, the writ petition has been preferred by the petitioner herein.

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Learned counsel appearing for the petitioner submitted that the petitioner is in possession and enjoyment of the property for about 30 years in the land in R.S.No.291/2 an extent of 0.19.00 h.a. in Kalitheerthalkuppam and so many other persons also occupied in the other portions of the land, however, the Second respondent issued notice only against the petitioner herein, which is not legally sustainable.

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Per contra the learned counsel appearing for the second respondent submitted that admittedly, the land in occupation is the Government land and the petitioner has no right in the property. Similar actions were taken against the other occupants of the land and the Government has to implement certain schemes for which the land is required. The third respondent herein, after considering the oral and documentary evidence adduced by both the parties and the arguments advanced for both sides, dismissed the appeal. It is seen that the petitioner, examined himself as P.W.1 and the first respondent herein was examined as R.W.1 and Exs.A1 to A10 and Exs.B1 and B2 were marked before the Court below. Considering the evidence and the arguments advanced by both sides, the Court below, third respondent herein dismissed the appeal, preferred by the petitioner. According to the learned counsel for the second respondent, the relief sought for in the writ petition is not legally sustainable and reasonable opportunity was provided to the petitioner to establish his claim, however the writ petitioner could not establish any right to the property. It is seen that the second respondent had framed

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the following points for consideration in the appeal:

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Whether the appellant has not been given opportunity of a personal hearing and production of documentary evidence;

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Whether the proceedings of the Estate Officer, the second respondent herein by way of issuing Form B notice under Sub Section 1 of Section 4 of Public Premises (Eviction of Unauthorized Occupants) Act, 1971, (hereinafter referred to as an Act) is liable to be set aside?

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It is not in dispute that the petitioner herein was given opportunity to submit his explanation before the Court below. He himself was examined as P.W.1 apart from marking Exs.A1 to A10. It is the case of the petitioner that he was not permitted to cross examine the respondent witness, however, on a perusal of the impugned judgment, it is seen that reasonable opportunity was given to the petitioner to establish his claim. The second point for consideration is whether the notice of the Estate Officer issued in Form B under Sub Section (1) Section 4 of the said Act, is liable to be set aside. The impugned judgment has been rendered by the Court below as appellate authority. In this writ petition filed by the petitioner, the Court has to decide whether the writ petition has to be allowed and the impugned judgment of the third respondent, has to be set aside. The petitioner has stated that he is in occupation of a smaller extent of land belonging to the Government in vast extent of land measuring 2 Hectare 66 Ares.

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According to the respondents 1 and 2, the petitioner and other persons have encroached certain portions of the land belongs to the Government. Hence, the Estate Officer, second respondent herein, issued a show cause notice under Section 4 (1) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, hereinafter referred to as the Act, directing the petitioner herein, why an order of eviction should not be effected. Admittedly, after receiving the notice by the petitioner herein, filed his written objection which was marked as Ex.A2. The second respondent after considering the objections raised by the petitioner, passed an order in Form 'B' dated 25.11.2003, directing the petitioner to vacate the premises within 30 days after the receipt of the eviction notice. In this regard, learned counsel for the second respondent drew the attention of this Court to Section 4 of the above said Act, as per this Section 4 of the said Act,

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"If the estate officer is of opinion that any persons are in authorized occupation of any public premises and that they should be evicted, the estate officer 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."

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In this case, admittedly, show cause notice was issued by the second respondent to the petitioner to evict the petitioner from the

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Government land. After providing time under the Act, the second respondent is empowered to issue eviction notice. Accordingly, second notice was issued for eviction stating that the property belongs to the Government and the petitioner was only an authorized occupant. In this regard, learned counsel for the respondent drew the attention of this Court to Section 2(g) of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971, which reads as under:

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"2(g) "unauthorized occupation", in relation to any public premises, means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises, has expired or has been determined for any reason whatsoever."

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In S.P.Prabhu vs. V.V.Joshi reported in AIR 1975 GOA, DAMAN & DIU 19, it has been held that what is "unauthorized occupation" under the Act. In order to hold unauthorized occupation of any person under the Act, the land must be a Government land or any public premises, in occupation of any person without any authority for such occupation. In the instant case, based on the evidence available, the Court below has held that the land in occupation by the petitioner is only a Government land which is not in dispute in this writ petition. The petitioner is neither a permissive occupier nor lessee, hence, occupation of the Government land without any license or authority and therefore, the petitioner has to be construed only an unauthorized occupant within the meaning of Section 2(g) of the said Act. As per Section 4 of the Act, if the Estate Officer is of the opinion that any person or persons in unauthorized occupation of any public premises and to evict such unauthorized occupant, the estate officer is empowered to issue a notice in writing calling upon the person or persons to show cause why an order of eviction should not be made as contemplated under the Act. In the instant case, admittedly, the notice was issued and the petitioner submitted his reply. Since the same was not convincing, eviction notice was ordered as per Section 5 of the Act.

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Section 5 of the Act reads as under:

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"5. Eviction of unauthorized occupants:(1) If after considering the cause, if any, shown by any person in pursuance of a notice under section 4 and [any evidence produced by him in support of the same and after personal hearing, if any, given under clause (b) of sub-section (2) of section 4], the estate officer is satisfied that the public premises are in unauthorized occupation, 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

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public premises."

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The Delhi High Court has held that a notice sent under Section 4 of the Act must contain the description of the public premises clearly so that all concerned should know to what particular premises the notice pertains to. In the instant case, notice was issued by the second respondent specifying the survey numbers and other details of the Government land in the occupation by the petitioner. It is not in dispute that as per Section 5 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971, summary procedure under the Public Premises Eviction Act is prescribed for evicting the tenants or unauthorized occupants or sub-tenants which is not violative of Article 19(1)(f) of the Constitution as per the decision rendered by the Hon'ble Supreme court in KAISER-I-HINDI (P) LTD. V. NATIONAL TEXTILE CORPN. (MAHARASHTRA NORTH) LTD., (2002) 8 SCC 182.

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In the decision referred to above, the Constitutional Bench of the Hon'ble Apex Court has held that section 5 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, is a summary procedure for eviction, as provided under the said Act, which is not violative of the Fundamental Rights, guaranteed under the Constitution of India.

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In S.P.Prabhu vs. V.V.Joshi, reported in AIR 1975 GOA, DAMAN & DIU 19, relying on the decision rendered by the Hon'ble Apex Court in Rajnarain Singh vs. Chairman, P.A.Committee, reported in AIR 1954 SC 569, in respect of Section 5 of the Pubic Premises (Eviction of Unauthorised Occupants) Act, 1971, held as follows :

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"Section 5 (1) does not contemplate any particular period for enforcement of the order for eviction. Section 5 (2) clearly provides for the period within which the order has to be complied with. It was not therefore, necessary to mention the date for vacation in the order itself."

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In the instant case, the second respondent issued the eviction notice and for which written objection was submitted by the petitioner herein. As the objection was not convincing, the subsequent eviction notice was issued by the second respondent and against which, the petitioner herein preferred an Appeal under Section 9(2)(a) of the said Act. As per the judgment rendered in K.R.K.Talwar vs. Union of India, reported in AIR.1977 DEL.189, Section 9 does not require the Appellate Officer to decide the appeal on merits in absence of appellant and the appellate authority/Court is fully competent to dismiss it for default .

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As contended by the learned counsel appearing for the second respondent, from the evidence available on record, it has been made clear that the petitioner has admitted that he is in occupation of the Government land and he paid penalty charges for the occupation.

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The petitioner, as per law, cannot claim title by way of adverse possession either before the respondents or in the writ petition as the same could be decided by a competent Civil Court. Having admitted the fact that the land in the occupation of the petitioner is the title of a Government land and making payment of penalty charges, the petitioner cannot raise such a defence and it being a summary procedure, the third respondent herein is empowered to dispose the same on merits following summary procedure being an appellate Authority, based on the available evidence.

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It is well settled that for claiming right of possession, there shall be a legal plea raised by the petitioner, and that should be established by adducing evidence, however, no such legal plea is available in favour of the petitioner herein in this writ petition. The only point raised by the learned counsel appearing for the petitioner is that the other similarly placed persons were not vacated, for which, the learned counsel appearing for the second respondent submitted that actions are taken against the other occupants. However, the said plea of the petitioner is not a legal ground to maintain this writ petition. It is seen that the respondents 1 and 2 following the procedure, contemplated under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 and the principles of natural justice, by providing reasonable opportunity to the petitioner to establish his claim, passed the order and it is seen that the impugned judgment has been rendered on merits according to law, by the third respondent.

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On the facts and circumstances, it is crystal clear that the petitioner has no legal right to establish his claim made in the writ petition, since admittedly the property belongs to the Government and there is no error or illegality or infirmity in the impugned judgment rendered by the third respondent, so as to warrant any interference by this Court, hence the writ petition is liable to be dismissed.

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In the result, the writ petition is dismissed. No order as to costs. Consequently, connected miscellaneous petitions are closed.

/True Copy/

Sub Asst.Registrar

kal / tsvn

https://hcservices.ecourts.gov.in/hcservices/

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The II Additional District Judge, (Principal District Judge II Additional District Judge Incharge) Appellate Authority, Pondicherry. 2. The Commissioner, Mannadipet Commune Panchayat Thirubuvanal, Pondicherry 3. The Estate Officer, Villianur, Pondicherry.

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+1 CC to M/S.T.DHANYAKUMAR, Advocate SR No.22596
+1 CC to The Senior Govt. Pleader-Cum Sr. Public Prosecutor for
Pondicherry SR No.22893
W.P.No.10667 of 2006
WPMP No.12075/06 & WVMP No.1402/06

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Kalivaradhan, v. the Commissioner, Mannadipet

Case brief

What is this about?

What did the court decide?

Kalivaradhan, v. the Commissioner, Mannadipet

Case brief

What is this about?

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