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2013 DIGILAW 3849 (MAD)

Arputham v. Zonal Officer, Corporation of Chennai

2013-11-07

N.PAUL VASANTHAKUMAR, R.MAHADEVAN

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Judgment N. Paul vasanthakumar, J. 1. Mr.A.Nagarajan, learned Standing Counsel for the Corporation of Chennai takes notice for the first respondent and Mr.R.Ravichandran, learned Additional Government Pleader takes notice for the second respondent. 2. Heard the learned counsels for the petitioner, first respondent as well as the learned Additional Government Pleader for the second respondent. 3. This Writ Petition is filed to quash the order of eviction dated 7.9.2013 purported to be issued under Sections 220 read with Section 222 of the Chennai City Municipal Corporation Act, 1919 treating the petitioner as encroacher and she was asked to remove the encroached area of 165 Sq.Ft in Rajiv Gandhi Street in S.No.128/3 at Maduravoyal Village. In accordance with the notice, it is a road area vested with the Corporation and the petitioner has encroached in the public road as encroacher. 4. The grievance of the petitioner is that the petitioner is in occupation for over 30 years in the said area and she is having records to show that she is in possession of the said area. Her main grievance is that prior to order of eviction, no prior notice/show cause notice is issued to explain as to why the petitioner shall not be evicted and therefore principle of natural justice is violated as well as in violation of Section 222 of the Chennai City Municipal Corporation Act, 1919. 5. The learned counsel appearing for the respondents on the other hand submitted that no notice is contemplated under Section 222 of the said Act. 6. Section 222 of the Chennai City Municipal Corporation Act, 1919 reads as follows: "222. Removal of encroachments: (1) The Commissioner may by notice require the owner or occupier of any premises to remove or alter any projection, encroachment or obstruction (other than a door, gate, bar, or ground-floor window) situated against or in front of such premises and in or, over, any street (or any public place, the control of which is vested in the Corporation). (2) If the owner or occupier of the premises proves that any such projection, encroachment or obstruction has existed for a period sufficient under the law of limitation to give him a perspective title (or where such period is less than thirty years, for a period of thirty years) or that it was erected with the consent of any municipal authority duly empowered in that behalf, and that the period, if any, for which the consent is valid has not expired, the Corporation shall make reasonable compensation to every person who suffers damage by the removal or alteration of the same." 7. From the perusal of the above statutory provision, it is not evident that there is prohibition to issue prior notice to the encroacher. The removal of encroachment order will definitely affect the civil rights of the person against whom such order is passed. It is well settled proposition of law, the principles of natural justice should be followed before proceeding against a person including a trespasser, unless it is prohibited under the statute. 8. The Supreme Court in the decision in the Scheduled Caste and Weaker Section Welfare Association (Regd.) and another v. State of Karnataka and others reported in AIR 1991 SC 1117 stated the said principle. In paragraph No.15, it is held thus: "15. It is one of the fundamental rules of our constitutional set-up that every citizen is protected against exercise of arbitrary authority by the State or its officers. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power and the rule of natural justice operates in areas no covered by any law validly made. What particular rule of natural justice should apply to a given case must depend to an extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the body of persons appointed for that purpose. It is only where there is nothing in the statute to actually prohibit the giving of an opportunity to be heard, but on the other hand, the nature of the statutory duty imposed itself necessarily implied an obligation to hear before deciding, that the audi alteram partem rule could be imported. It is only where there is nothing in the statute to actually prohibit the giving of an opportunity to be heard, but on the other hand, the nature of the statutory duty imposed itself necessarily implied an obligation to hear before deciding, that the audi alteram partem rule could be imported. Thus in applying the test to the provisions of the earlier Act, the Myslore Slum Areas (Improvement and Clearance) Act, 1958, this Court held in Govt. of Mysore v. J.V.Bhat, (1975) 2 SCR 407 : (AIR 1975 SC 696) thus:- "There can be no two opinions about the need to hear the affected persons before declaring an area to be a slum area under Section 3 or an area as a clearance area under Section 9 or before taking action under Section 10. All these difficulties will be removed if the affected persons are given an opportunity to be heard in respect of the action proposed." 9. The said judgment was followed by the Division Bench of this Court in N.Sivasubramanian vs. the Government of Tamil Nadu rep. by its Secretary, Hindu Religious and Charitable Endowments Department, Fort St.George, Chennai-9 and others reported in 2007 (1) LW 72 wherein one of us (N.Paul Vasanthakumar,J) is a party. 10. In the decision reported in Canara Bank vs. V.K.Awasthy reported in AIR 2005 SC 2090 , the concept of "natural justice" and the principles governing its application was summed up and held thus: "Thus, it is trite that unless a statutory provision either specifically or by necessary implication excludes the application of principles of natural justice, because in that event the court would not ignore the legislative mandate, the requirement of giving reasonable opportunity of being heard before an order is made, is generally read into the provisions of a statute, particularly when the order has adverse civil consequences for the party affected. The principle will hold good irrespective of whether the power conferred on a statutory body or tribunal is administrative or quasi-judicial." The same is the view stated by the Supreme Court in Prakash Ratan Sinha vs. State of Bihar and others reported in 2009 (14) SCC 690 and in Kesar Enterprises Ltd. v. State of U.P. and others reported in AIR 2011 SC 2709 . Applying the said principles to the facts of this case, the impugned order straight away giving direction to the petitioner to evict from the encroached area within 7 days without issuing prior show cause notice is not valid. 11. The learned counsel for the first respondent finally submitted that the impugned order dated 7.9.2013 may be treated as a notice to the petitioner for which the petitioner may be directed to submit her objections if any within a period of two weeks and the first respondent, namely Zonal Officer, Zone VI, will consider objection/representation to be submitted by the petitioner and pass orders on merits. 12. In such circumstances, the Writ Petition is allowed treating the impugned order dated 7.9.2013 as a show cause notice issued to the petitioner and the petitioner is given liberty to submit objection/representation by Registered Post to the first respondent within a period of two weeks from the date of receipt of a copy of this order and on receipt of the same, the first respondent Zonal Officer is directed to consider the same and pass appropriate orders on merits and in accordance with law, within a period of four weeks thereafter. The Writ Petition is allowed with above liberty. No costs. The connected Miscellaneous Petitions are closed.