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2011 DIGILAW 3733 (MAD)

A. Babjan v. District Collector, Salem

2011-08-19

R.S.RAMANATHAN

body2011
JUDGMENT :- 1. The unsuccessful plaintiff is the appellant. 2. The suit was filed for a declaration that the notice dated 8.5.1998 issued by the second respondent is null and void and for permanent injunction restraining the respondents from interfering or evicting the plaintiff/appellant from the suit property except under due process of law. 3. The case of the plaintiff/appellant was that he is in possession of 85 cents of property in S.No.9/238 in Block No.13 in Mettur Municipal area and the said property is a poramboke land and penal assessment was made by the Revenue Department against the plaintiff and the plaintiff/appellant is paying penal assessment charges. Whileso, the second respondent issued a show cause notice for eviction under Rule 3 of the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Rules 1978 on 30.6.1989 and therefore, the plaintiff/appellant filed W.P.No.2816 of 1986 before this court challenging the said notice and that petition was allowed and thereafter, without following any procedure, the second respondent issued a notice dated 8.5.1998 without mentioning whether the said notice was issued under the provisions of Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Rules 1975 and therefore, the notice dated 8.5.1998 is an illegal notice and without following the procedure established by the law, the appellant cannot be evicted and therefore, the suit was filed for the relief prayed for. 4. Defendants 1 and 2/respondents 1 and 2 filed the statement contending that in the earlier writ filed by the appellant against the notice issued under the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, this court has directed the second respondent to follow the procedure for eviction and as directed by this court, notice dated 8.5.1998 was issued and that cannot be challenged and the second respondent also took possession of the property and handed over possession to the third respondent for whose benefit, the eviction was sought for and therefore, the appellant/plaintiff is not entitled to the relief prayed for. 5. The third respondent filed a statement stating that the suit filed by the appellant/plaintiff is barred under section 15 of the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act, 1975 and the property has been handed over to the third respondent by the second respondent. The third respondent has also taken possession and therefore, the appellant/plaintiff is not entitled to any relief. 6. The third respondent has also taken possession and therefore, the appellant/plaintiff is not entitled to any relief. 6. The Trial Court dismissed the suit holding that the suit is barred under section 15 of the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act, 1975 and the lower appellate court also confirmed the said finding and held that the suit is barred under section 15 of the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act, 1975. Hence, the second appeal. 7. Learned counsel for the appellant Mr.N.Manokaran submitted that having regard to the prayer in the suit, the question of applicability of section 15 of the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act, 1975 has no relevance and admittedly, the notice dated 8.5.1998 was not issued under the provisions of the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act, 1975 and it was not issued by the Estate Officer and the suit was filed only to declare that notice as illegal and null and void and therefore, the suit is not barred under section 15 of the said Act. He further submitted that Ex.B1 and B5 would also prove that the impugned notice dated 8.5.1998 was not issued under the provisions of the said Act and the proceedings were initiated under the said Act only under Ex.B1 and hence, the suit challenging the notice dated 8.5.1998 cannot be held as barred under the provisions of the said Act. He also relied upon the judgment of this court reported in GOVINDARAJULU v. ASSISTANT DIVISIONAL ENGINEER, H.&R.W., VRIDHACHALAM (AIR 1988 MADRAS 188), BRINDHA MUTHUSWAMY v. T.N.SMALL INDUSTRIES DEVELOPMENT CORPORATION ( 1983 (1) MLJ 422 ), GOVERNMENT OF A.P. v. THUMMALA KRISHNA RAO (1982(2) SCC 135) and contended that without following the procedure, the plaintiff cannot be evicted and when proper procedure was not followed under the provisions of the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act, 1975, the same can be challenged and the possession of the person in occupation can be protected. He further submitted that as per the judgment reported in 1982(2) SCC 135, when a dispute regarding title is canvassed, the same cannot be decided in a summary manner in the provisions of the land encroachment Act and therefore, submitted that both the courts below erred in dismissing the suit holding that the suit is barred under section 15 of the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act. 8. The learned Government Advocate appearing for the second respondent submitted that even in the year 1986, proceedings were initiated under the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act, 1975 and the same was challenged by the appellant by filing a writ and as per the provisions of the said Act, when a premises comes within the definition of public premises, then no suit shall be entertained by any civil court in respect of the eviction of any person who is found to be in unauthorised occupation of that public premises and section 15 is a specific bar for a civil court to entertain any suit and hence, both the court below have rightly held that the suits are barred by the provisions of section 15 of the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act, 1975. 9. The learned counsel for the third respondent also supported the arguments of the learned counsel for respondents 1 and 2 and submitted that when the property is admittedly a public premises, no civil court can entertain any suit regarding eviction of the public property and section 15 is a bar for a civil court to entertain such a suit. 10. On the above submission, the following substantial questions of law are framed:- (i) Whether the courts below were right in dismissing the suit holding that the suit is barred under section 15 of the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act, 1975? (ii) Whether the suit is maintainable when the relief is only challenging the notice dated 8.5.1998 which was not admittedly issued under the provisions of the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act 1975? 11. Admittedly, the suit property is a poramboke land and according to the case of the appellant, B memos were issued by the Government and the appellant has been paying penalty. 11. Admittedly, the suit property is a poramboke land and according to the case of the appellant, B memos were issued by the Government and the appellant has been paying penalty. It is also admitted that in the year 1986, proceedings were initiated by the second respondent under the provisions of the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act, 1975 and that was challenged by filing a writ in w.P.No.2816 of 1986 and the same was allowed. Therefore, having regard to the above facts, and having regard to the definition of public premises, as per the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act, 1975, the suit property comes within the definition of public premises. Once the suit property is a public premises, the occupant can be evicted by following the procedure contemplated under the Act. 12. It is the case of the appellant that without following the procedure contemplated under the Act, notice dated 8.5.1998 was issued and by virtue of the notice, the appellant was sought to be evicted by force and therefore, the suit was filed for declaration that the notice dated 8.5.1998 is null and void and the appellant cannot be evicted except under due process of law and it is always open for the respondent to initiate proceedings under the said Act and as a matter of fact, they have also taken the proceedings, Exs.B1 to B5 and till such proceedings are culminated in the manner known to law, the appellant/plaintiff is entitled to be in possession and therefore, the suit ought have been decreed. 13. I am unable to accept the contention of the learned counsel for the appellant. Though the appellant prayed for declaration that notice dated 8.5.1998 is null and void and he cannot be evicted except under due process of law, having regard to the pleadings he is admittedly in possession of a public premises. 14. A reading of section 15 of the said Act makes it clear that no court shall have jurisdiction to entertain any suit or proceeding in respect of eviction of any person who is in unauthorised occupation of any public premises. Therefore, a civil court will not have any jurisdiction in respect of any public premises where the person in that premises is an unauthorised occupant. Therefore, a civil court will not have any jurisdiction in respect of any public premises where the person in that premises is an unauthorised occupant. According to me, the appellant/plaintiff by camouflaging the relief, really wanted to prevent the authorities from evicting him from the public premises under the pretext that no proper notice was given. Whether the procedure contemplated under the provisions of the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act, 1975 was followed or not cannot be decided in a suit filed by a person who is admittedly in unauthorised occupation of any public premises. It is further open to that person to challenge the procedure or challenge the notice by filing a writ, as held in the judgments reported in AIR 1988 Madras 188 and 1983(1)MLJ 422. In other words, the appellant/plaintiff is entitled to challenge the notices issues by the second respondent contending that the procedure contemplated under the said act was not followed. But, the same cannot be questioned in a civil court having regard to the specific bar of the said Act. Hence, the courts below have rightly held that the suit filed by the appellant/plaintiff is barred under section 15 of the said Act and the plaintiff is not entitled to the relief prayed for and rightly dismissed the suit. Therefore, the first substantial question of law is answered against the appellant. 15. As the civil court has no jurisdiction by virtue of section 15 of the said Act, even assuming that the notice dated 8.5.1998 was not properly issued, the same cannot be challenged in the suit. Therefore, the second substantial question of law is also answered against the appellant. In the result, the judgment and decree of the courts below are confirmed. The second appeal is dismissed. No costs. The connected miscellaneous petition is also dismissed.