JUDGMENT
1. The second respondent in this appeal, viz., State of Tamil Nadu and the appellants are respondents 1 to 4 respectively in the writ petition. The first respondent was granted permission by the State Government in G.O.Ms. No. 1765, dated 22.12.1992 to erect hoardings in certain locations mentioned in that Government Order which are situated on the National Highway 45, subject to the usual terms and conditions. There is nothing on record before us to show what are the usual terms and conditions. However all counsel appearing in this appeal agree that usually the period is one year.
2. One such location is at km 12/720 which is in dispute in the present case. On the strength of the permission granted by the State Government, the first respondent erected a hoarding in the said location. According to the first respondent, he spent a sum of Rs. 1 lakh for erecting the said hoarding. The appellants (respondents 2 to 4 in the writ petition), according to the first respondent herein, removed the hoarding and when they were threatening to remove the hoarding, the first respondent moved this Court with the writ petition praying for the issue of a writ of mandamus restraining the appellants from interfering with the hoarding put up in NH-45 Km 12/720 shown in the plan annexed thereto. The writ petition was filed on 5.2.1993. On the same day it was admitted and an interim injunction was granted. But according to the first respondent inspite of service of a letter by the counsel on the appellants informing them about the passing of the order of interim injunction on 5.2.1993 and inspite of service of the order on 6.2.1993, the appellants removed the hoarding. He filed Contempt Application No. 73 of 1993 for punishing them for disobedience of the order of the court.
3. The stand taken by the appellants was that the land in which the hoarding was erected belonged to the Defence Department and there was no permission granted by the Defence Department to the petitioner to erect any hoarding. According to them when they found the unauthorised hoarding they directed the removal thereof pursuant to Sub-section (3) of Section 5-A of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, as amended by Act 35 of 1984, hereinafter referred to as ‘the Act’. It was also the case of the appellants that the register belonging to the Department shows that the land belonged to them, and it was further stated that in the same place, a hoarding was erected by the first respondent earlier in 1992 and after a warning by the authorities concerned, the hoarding was removed and the first respondent had also given a letter to the effect that he would not claim any damages and he was sorry for the inconvenience caused to the authorities. Though the State Government was the first respondent in the writ petition, it did not file any counter-affidavit.
4. The learned Judge allowed the writ petition holding that the hoarding was erected only pursuant to the permission granted by the State Government and even if the land belonged to the appellants herein, they should have issued a notice to the first respondent and followed the proper procedure before removing the hoarding. The learned Judge has stated in his order that he looked into the relevant files produced by the Government Pleader and it was seen that the survey numbers had been sub-divided and the same was overlooked by the military authorities. The learned Judge also observed that there was some inconsistency between the counter-affidavits filed by respondents 3 and 4 before him. On that reasoning, the learned Judge held that the appellants had no jurisdiction to interfere with the possession and enjoyment or the erection of the hoarding by the first respondent herein. Consequently, the learned Judge issued a mandamus directing appellants 2 and 3 herein to handover possession of the site to the first respondent within two weeks from the date of his order and also to pay a sum of Rs. 1 lakh by way of compensation besides a sum of Rs. 3,000 towards costs. The learned Judge observed that it was not necessary to deal with the contempt application and dismissed the same.
5. The order in the contempt application has become final and it is not before us.
6. In this appeal, which is against the order in the writ petition, it is contended that the ownership of the property cannot be decided in a writ petition under Article 226 of the Constitution of India. The register produced by the appellants has clearly indicated that the property belonged to the Defence Department and there could not have been any permission by the State Government to erect a hoarding. Further, it is argued that under Section 5-A(3) of the Act, if it is a movable structure or fixture erected in the land, it can be removed without notice by the concerned authorities. Reliance is placed on the judgment of the Supreme Court in Sohan Lal v. Union of India , which was actually relied on by the learned Judge as one supporting the case of the first respondent herein. Learned Counsel has invited our attention to the judgment of the Calcutta High Court in Jnan Chand v. Jugal Kishore .
7. Per contra, it is contended by the first respondent that the property cannot be treated as a movable property and it is only an immovable property as the hoarding has been imbedded in the earth. According to him, the procedure prescribed under Section 5-A(2) should have been followed by the authorities even if the land belonged to them. It is also contended that when the permission has been granted by the State Government, it is not open to the appellants to straight way remove the hoarding but they will have to take action only against the State Government and adopt a proper procedure in consonance with the principles of natural justice.
8. Before considering whether it is movable or immovable property, it is necessary for us to refer to the judgment of the Supreme Court in Sohan Lal’s case A.I.R. 1957 S.C. 529 : (1957) 2 M.L.J. (S.C.) 50 : (1957) 2 An.W.R (S.C.) 50 : 1957 S.C.J. 489 : 1957 S.C.R. 738 : 1957 S.C.A. 417. One Jagannath was a displaced person and a refugee from Pakistan. The Government of India had devised certain schemes for the rehabilitation of refugees and under one such scheme, houses known as “box-type tenements” were constructed. One of the houses was allotted to him and he was put in possession after all the formalities were duly completed. But he was later evicted therefrom. Thereafter, the house was allotted to another displaced person who got possession. Jagannath filed a writ petition in the High Court of Punjab for issue of a mandamus directing the Union of India and the person in possession to restore possession to him. The High Court allowed the same and granted the prayers. On appeal the Supreme Court held that it was not proper to decide the merits of the rival claims of title to the property in dispute under Article 226 of the Constitution of India. The court also observed that even if the eviction of the writ petitioner was illegal a writ of mandamus could not be issued in such a case and it was for the parties to work out their rights elsewhere. On that basis, the Supreme Court set aside the order of the High Court granting a mandamus and dismissed the writ petition. The relevant observations in the judgment are as follows:
We do not propose to enquire into the merits of the rival claims of title to the property in dispute set up by the appellant and Jagannath. If we were to do so, we would be entering into a field of investigation which is more appropriate for a civil court in a properly constituted suit to do rather than for a court exercising the prerogative of issuing writs. These are questions of fact and law which are in dispute requiring determination before the respective claims of the parties to this appeal can be decided. Before the property in dispute can be restored to Jagannath it will be necessary to declare that he had title in that property and was entitled to recover possession of it. This would in effect amount to passing a decree in his favour. In the circumstances to be mentioned hereafter it is a matter for serious consideration whether in proceedings under Article 226 of the Constitution such a declaration ought to be made and restoration of the property to Jagannath be ordered. (Vide: paragraph 5)
The eviction of Jagannath was in contravention of the express provisions of Section 3 of the Public Premises (Eviction) Act. His eviction, therefore, was illegal. He was entitled to be evicted in due course of law and a writ of mandamus could issue to or an order in the nature of mandamus could be made against the Union of India to restore possession of the property to Jagannath from which he had been evicted if the property was still in possession of the Union of India. The property in dispute, however, is in possession of the appellant. There is no evidence and no finding of the High Court that the appellant was in collusion with the Union of India or that he had knowledge that the eviction of Jagannath was illegal. Normally, a writ of mandamus does not issue to or an order in the nature of mandamus is not made against a private individual. Such an order is made against a person directing him to do some particular thing, specified in the order, which appertains” “to his office and is in the nature of a public duty (Halsbury’s Laws of England, Vol.11, Lord Simonds Edition, p. 84). It it had been proved that the Union of India and the appellant had colluded, and the transaction between them was merely colourable entered into with a view to deprive Jagannath of his rights, jurisdiction to issue a writ to or make an order in the nature of mandamus against the appellant might be said to exist in a court. We have not been able to find a direct authority to cover a case like the one before us, but it would appear that so far as election to an office is concerned a mandamus to restore admit, or elect to an office will not be granted unless the office is vacant. If the office is in fact full, proceedings must be taken by way of injunction or election petition to oust the party in possession and that a mandamus will go only on the supposition that there is nobody holding the office in question. In R. v. Chester Corporation (1855-25) L.J. Q.B. 61 (E), it was held that it is an inflexible rule of law that where a person has been de facto elected to a corporate office, and has accepted and acted in the office the validity of the election and the title to the office can only be tried by proceeding on a quo warranto information. A mandamus will not lie unless the election can be shown to be merely colourable. We cannot see why in principle there should be a distinction made between such a case and the case of person, who has, apparently, entered into bona fide possession of a property without knowledge that any person had been illegally evicted therefrom. (Vide: paragraph 7)
9. Bearing the above principle in mind, if we consider the facts of this case it is clear that a question of rival claim of title to the property arises, which cannot be decided in these proceedings. While the State Government has proceeded on the footing that it is entitled to deal with the property and grant permission to the first respondent to erect a hoarding, the appellants claim title thereto and rely upon a Land Register maintained by them. However, it is to be noted that the State Government has not considered at any time its right over the property. The file which was produced before the learned single Judge has been produced before us also. It contains a letter from the Chief Engineer, National Highways addressed to the Secretary to Government Public Works Department dated 3.11.1992. The letter merely refers to the application by the first respondent for permission to erect advertisement hoarding from KM. 11/7 to 15/4 of NH 45 at the locations mentioned therein. The Chief Engineer has recommended the grant of the said permission. On that basis, a note was put up to the concerned officials including the Minister and the permission was granted. The file does not disclose the consideration of the question whether the land in question belonged to the State Government or that it had any right to deal with the said land. It is also to be noted that the Government order passed by the State Government does not indicate anything to identify the particular locations in which the hoardings could be erected. The Government Order merely refers to the points in terms of mileage referring to Km. 12/230 Km. 11/770; Km. 12/720; Km. 12/700; Km. 12/770; Km. 12/650 and Km. 12/800. There is nothing in the order to show that to which particular part of the land the order related. Significantly no survey number is mentioned. Learned Counsel for the first respondent submits that along with the application he had filed detailed plans showing the locations and these plans are approved by the authorities and hence the plans should be treated as part of the Government order. We are unable to accept this contention. It may be that the first respondent had indicated the locations in his plans, which might have been approved by the concerned authorities. But there is nothing to show that the officials applied their mind to the question whether the locations mentioned in the plan belonged to the State Government or whether they are properties over which the State Government can exercise particular rights. There is nothing in the file to indicate any sub division of survey numbers as stated by the learned Judge. Even if there had been a sub-division of the survey number it will not make any difference. 10. We have already referred to the contention of the appellants that in the very same place the first respondent erected a hoarding earlier in 1992 and on the issue of a warning by the authorities the same was removed by him. The appellants have produced copies of the correspondence relating to the same. A letter dated 24.4.1992 written by the manager of the first respondent to the Commandant Officers Training Academy, Madras-37, is produced before us. As per the said letter the hoarding erected on the defence land was removed and it was handed over to the first respondent. The first respondent stated that there was no damage to the items in question and that the first respondent would not make a of aim for any damages. The first respondent had also expressed regret for the inconvenience caused to the authorities. This letter was referred to by the appellants in the counter-affidavit filed by them in the writ petition in paragraph 5 in the following passage:
In this context, I wish to bring to the notice of this Hon’ble Court that the petitioner had erected unauthorised hoarding in the same place on 22.4.1992 and after a warning by the military authorities, the said hoarding was removed by the petitioner on 24.4.1992. The petitioner had also sent a letter regarding the inconvenience caused to the Military authorities.
They have also referred to the same in the counter-affidavit filed in Contempt Application No. 73 of 1993 as follows:
In this regard, I beg to bring to the notice of Hon’ble Court that this company had erected an unauthorised hoarding at the same place on 22nd April, 1992. The hoarding was removed on 24th April and the company had regretted in writing about the inconvenience.
11. There is a specific plea in the above passages that an unauthorised hoarding was erected at the same place in April, 1992. The first respondent filed a reply affidavit in the Contempt Application. In the reply-affidavit, he has not chosen to deal with the above pleading made by the appellants. It is not stated by the first respondent in the said reply affidavit that the hoarding erected earlier was in a different place and not the same place, which is now, under dispute. Learned Counsel for the first respondent, however, contended that earlier the hoarding was put in a different place and that has nothing to do with the place now in question. We are unable to accept this contention in view of the fact that there is no reference to it by the first respondent in his reply affidavit filed in the contempt application. In the circumstances, the first respondent was duty bound to have brought to the notice of the State Government when he applied for permission to erect, the correspondence between him and the appellants and also the fact that the hoarding was removed by the appellants. Without doing so, the first respondent had simply applied for permission and it was granted by the State Government.
12. As we are not going to decide the question of titled to the property, which should be settled only in a regular civil proceedings before the court, we do not propose to make any observation with regard to the same. It must be pointed out that there is a rival claim between the State Government on the one hand and the Military authorities on the other. It is, therefore, a matter which cannot be decided in these proceedings under Article 226 of the Constitution of India.
13. What remains to be considered is the question whether the procedure adopted by the appellants is in accordance with law and whether the first respondent herein should have been given opportunity before the hoarding was removed. Reliance is placed by the appellants on Sub-section (3) of Section 5-A of the Act. It would be useful to extract Section 5-A of the Act in full.
5-A. Power to remove unauthorised constructions, etc.
(1)No person shall,
(a) erect or place or raise any building or any movable or immovable structure or fixture,
(b) display or spread any goods,
(c) bring or keep any cattle or other animal, on, or against or in front of, any public premises except in accordance with the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy such premises.
(2) Where any building or other immovable structure or fixture has been erected, placed or raised on any public premises in contravention of the provisions of Sub-section (1), the estate officer may serve upon the person erecting such building or other structure or fixture, a notice requiring him either to remove; or show cause why he shall not remove such building or other structure or fixture to or from the public premises within such period, not being less than seven days, as he may specify in the notice : and on the omission or refusal of such person either to show cause, or to remove such building or other structure from the public premises, or where the cause shown is not, in the opinion of the estate officer, sufficient, the estate officer may, by order, remove or cause to be removed the building or other structure or fixture from the public premises and recover the cost of such removal from the person aforesaid as an arrear of land revenue.
(3) Where any movable structure or fixture has been erected, placed or raised, or any goods have been displayed or spread, or any cattle or other animal has been brought or kept on any public premises, in contravention of the provisions of Sub-section (1) by any person, the estate officer may by order, remove or cause to be removed without notice, such structure, fixture, goods, cattle or other animal as the case may be, from the public premises and recover the cost of such removal from such person as an arrear of land revenue.
Section 5-A of the Act was introduced by Act 61 of 1980. Sub-sections (2) and (3) thereof were introduced by Act 35 of 1984. The section came into force on the 13th of November, 1984. A perusal of the section shows that it deals with (1) immovable structure or fixture; (2) movable structure or fixture; (3) displaying or speading any goods and (4) bringing keeping any cattle or other animal. Sub-section (2) deals with immovable structure or fixture. If any immovable structure or fixture is unauthorisedly erected on any public premises in contravention of the provisions of the sub-section action has to be taken in accordance with Sub-section (2), Sub-section (3) deals with movable structure or fixture. According to learned Counsel for the first respondent, the hoarding erected on the land should be considered as immovable structure or fixture as it has been imbedded in earth. He places reliance on the definition of immovable property in Section 3(26) of the General Clauses Act, which defines the said expression as including land, benefits to arise out of land, and things attached to earth, or permanently fastened to anything attached to the earth. Learned Counsel submits that the hoarding as a thing attached to the earth, falls within the definition of the Act. Section 3 of the General Clauses Act begins with the words, “In this Act, and in all Central Acts and Regulations made after the commencement of this Act, unless there is anything repugnant in the subject or context….” Thus, the definition contained in the General Clauses Act is not automatically applicable to the expression found in every enactment and the court has to see whether there is anything repugnant in the subject or context to the application of the definition. The Transfer of Property Act contains its own definition of immovable property. Section 3 of the said Act defines immovable property as one which does not include standing timber, growing crops, or grass. This definition itself shows that the definition contained in the General Clauses Act will not apply to the provisions of the Transfer of property Act. There is also the definition of the expression ‘attached to the earth’ in the Transfer of Property Act. The expression means (a) rooted in the earth, as in the case of trees and shrubs; (b) Imbedded in the earth, as in the case of walls or buildings; or (c) attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached.
14. In Mulla’s commentary on the Transfer of Property Act, Seventh Edition, at page 14, the following passage is found:
Immovable property General : The distinction between moveable and immovable property was explained by Holloway, J., in an old Madras case Sukry Kurdepa v. Goondakull (1872)6 Mad. H.C. 71 as follows : Moveability may be defined to be a capacity in a thing of suffering alteration of the relation of place immovability in capacity for such alteration. If, however a thing cannot change its place without injury to the quality by virtue of which it is, what it is, it is immoveable. Certain things such as a piece of land are in all circumstances immovable. Others such as trees attached to the ground are, so long as they are so attached immoveable; when the severance has been effected they become moveable.
The passage extracted above itself contains the test to be applied. In the case referred to therein as reported in Sukry Kurdepa v. Goondakui (1872)6 Mad. H.C. 71, the learned Judge has stated that if a thing cannot change its place without injury to the quality by virtue of which it is, what it is, it is immovable. At page 22, the learned author dealing with the expression “attached to the earth” has stated as follows:
The phrase “attached to the earth” occurs in the definition of immovable property in the General Clauses Act, and also in this Act Section 8 with reference to the legal incidents of immovable property which pass, without express mention, on transfer; and again in Section 108(h) with reference to things a lessee may remove. The present section (Section 3) defines the expression “attached to the earth” as including (a) things rooted in the earth such as trees, (b) things imbedded in the earth such as buildings and (c) things attached to what is so imbedded, such as doors and windows.
At page 23, the expression “things rooted in the earth” is dealt with. It is pointed out that trees and shrubs are immoveable property according to the definition in the General Clauses Act, but this definition is subject to the exception made under the Transfer of Property Act as to standing timber. Under Section 108(h) of the Transfer of Property Act, the lessee is enabled to even after the determination of the lease, remove, at any time whilst he is in possession of the property leased, but not afterwards all things which he has attached to the earth; provided he leaves the property in the state in which he received it.
15. With the above background, if we look at the provisions of the Act, which does not contain any definition of ‘immovable property’, we find that the expressions used are ‘any movable’ or ‘immovable’. While the former is dealt with in Sub-section (3), the latter is dealt with in Sub-section (2). In the context in which these expressions are used, there can be no doubt that Sub-section (3) deals with all movable structures or fixtures, which have been erected in the land. Once the expression ‘erected’ is used, it means automatically that the movable structure or fixture is imbedded in earth to some extent atleast. Therefore, the mere fact that a hoarding is imbedded in the earth, will not make it an immovable property. The test, as observed by Holloway, J., which has already been quoted by us in this judgment is to see whether the structure or fixture can be removed without injury to the quality in any manner. The first respondent before us some, photographs of the hoarding erected by him. The photographs themselves show that the hoardings are put up on iron pillars embedded in the earth. Those pillars can be removed at any time without their quality being in any manner affected or any damage being caused either to the pillars or the earth. Hence, the hoarding, which is erected on the land in question will undoubtedly fall under Sub-section (3) of Section 5-A of the Act as it is a movable structure or fixture. Hence we are of opinion that Sub-section (3) will alone apply in this case and the procedure prescribed under Sub-section (2) need not be followed for removing the hoardings. Under Sub-section (3), there is no necessity for giving any notice or any other opportunity to the person, who has erected the structure or fixture unauthorisedly.
16. Learned Counsel for the first respondent contends that the doctrine of ‘reading down’ must be invoked in this case as respects Sub-section (3) of Section 5-A of the Act and that it will be in consonance with the accepted constitutional principle of natural justice that an opportunity must be given to any person when his rights are sought to be disturbed. In the context in which Sub-section (3) is introduced in the enactment it shows that the legislature has deliberately excluded the principle of natural justice. The section deals with unauthorised erection in a land which is a public premises and which belongs to public authorities. In such circumstances, if it is an immovable structure it will not only cause damage to the structure but also the land on which it is erected and therefore, a particular procedure is prescribed by the legislature under Sub-section (2). If it is movable, it will not cause any damage to the structure or the land by removing it. Therefore, the Act prescribes that when an unauthorised movable structure or fixture is erected, it can be removed by the authorities concerned, who are in-charge of the public premises, without giving any notice. Hence, there is no question of applying the principles of natural justice in this case. The introduction of Sub-section (3) by an amendment is for a deliberate purpose of removing the obstruction on a public premises as quickly as possible.
17. Learned Counsel for the first respondent in-vites our attention to the judgment of the Calcutta High Court in Ajit v. Nagendra . The court had to deal with a house erected on a land by the tenant. That superstructure, which belonged to the tenant of the estate was sold in execution of a decree. The question was whether the superstructure was intended to be dealt with as an accretion of the estate or not. Taking the relevant facts into account, the court held that it was treated as an accretion to the estate. The court said,
I now come to the sale of the structure effected by Panchurani on March 3,1944. The structure belonged to the tenant of the estate. In execution of the decree obtained by Panchurani as administratrix against the tenant, the structure was sold and purchased by Panchurani in 1941. Panchurani obtained khas possession from the tenant and let out the land with the structure standing thereon on a consolidated rent both for the land as well as for the structure. In the light of these facts, it must be held that Panchurani intended the structure to be an accretion to her husband’s estate. In law, the intention of the widow is the determining factor as to whether the property acquired by the widow out of the income would be her own property or an accretion to the estate of her husband. Clear intention of Panchurani is ascertained from these facts that she treated the structure as an accretion to the estate of her husband. It is clear that after purchase of the structure and ejectment of the tenant, who was the owner of the structure the bustee land with the structure standing thereon became a single immovable property and was treated as such by Panchurani. Now, by the sale deed of March 3,1944, Panchurani purports to effect a sale of the structure only apart from the land. The structure so long as it stood on the land is immovable property and the sale was therefore effected by a document of sale duly registered (vide: para 15)
That ruling has no relevance in the present case.
18. in Jnan Chand v. Jugal Kishore . The relevant test is prescribed in the following words:
The test, in my view, is the object with which the machinery was affixed to the land and the manner in which it was affixed. If the mode of attachment was imbedding in the earth as in the case of walls and buildings or if the object of attachment was for the permanent beneficial enjoyment of the land to which it was attached then the property would be immovable property within the meaning of Section 3 of the Transfer of Property Act but not otherwise.
Even if that test is applied here, there can be no doubt that the hoarding is only a movable property and not an immovable property. As admitted by counsel on both sides, the period for which permission is granted by the State Government is only one year, and the hoarding can be removed on the expiry of the period. Learned Counsel for the first respondent submits that it is renewable and normally renewals are granted automatically. Even then, it is only for a fixed period and the hoarding is to be removed after the expiry of that period. Applying the test laid down in the above judgment in Jnan Chand’s case A.I.R. 1960 Cal. 331, we hold that the hoarding is only a movable and not an immovable property as contended by the first respondent.
19. In the circumstances, the procedure adopted by the appellants herein cannot be said to be illegal or unconstitutional. They are well within their limits by applying Sub-section (3) of Section 5-A of the Act. It follows that no mandamus can be issued in favour of the first respondent either as prayed for by him or as issued by the learned single Judge.
20. In any event, there is no warrant for granting. compensation in a sum of Rs. 1 lakh to the first respondent. Except making an allegation in the affidavit that he has spent about a sum of one lakh of rupees for erecting the hoarding, the first respondent has not produced any record to show the actual expenses incurred by him. The documents produced by him do not make out a case that he has spent a sum of Rs. 1 lakh. The learned Judge, is, therefore, in error in granting a sum of Rs. 1 lakh by way of compensation just because it is prayed for by the first respondent.
21. The learned single Judge has also placed reliance on the judgment of the Supreme Court in Neelima Misra v. Harinder Kaur Paintal . The court said that even in administrative actions, the concept of fairness should be adopted and the authorities concerned are duty bound to act with fairness and adopt a fair procedure. The principle will have no application as the appellants in this case are governed by specific provisions in the statute and the statute prescribes a particular procedure in dealing with unauthorised erections of movable and immovable property and permits the authorities to act without notice in the case of removal of erections of movable property. There is no necessity on the part of the authorities concerned to adopt a different procedure when the statute prescribes a particular procedure.
22 Learned Counsel for the first respondent contends that under Section 3 of the Act, the removal can be done only by a person who has permission or was permitted by the Estate Officer in that behalf. According to him there is no estate officer, who has passed the order for removal. This contention omits to take note of the definition of “Estate Officer” in the Act. The appellants have acted only on the orders issued by the concerned authorities and there is no case that the appellants have acted contrary to the orders of the concerned authority. There is no merits in this contention.
23. In the result, the writ appeal is allowed; the order of the learned single Judge in W.P. No. 2301 of 1993 is set aside and the writ petition is dismissed. The first respondent shall pay the costs in the writ appeal to the appellants. Counsel’s fee Rs. 3,000 (rupees three thousand).