IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20/08/2002
CORAM
THE HON'BLE MR.JUSTICE P.D. DINAKARAN
Writ Petition No.33411 of 2002
P. Joseph Prabu .. Petitioner
-Vs-
1. The Estate Officer
C/o. Defence Estate Office
Madras Circle
No.306, Anna Salai
Teynampet, Chennai – 600 018.
2. The Chief Executive Officer
Cantonement Board
St.Thomas Mount cum Pallavaram
Madras - 600 018. .. Respondents
Petition under Article 226 of the Constitution of India praying for a
writ of Certiorari as stated therein.
For Petitioner : Mr. Dulip Singh
For M/s. King & Patridge
For Respondents : ----
:O R D E R
Aggrieved by the notice dated 5.8.2002 vide Ref. No. EO/N/4/PVM/GC&
St388/121&122/7mc issued under Section 5-A(2) of the Public Premises (Eviction
of Unauthorised Occupants) Act, 1971, (hereinafter referred to as the “Act”),
requiring the petitioner to showcause personally on 22.8.2002 at 1130 hours
why the unauthorised construction put up by the petitioner in the public
premises should not be removed, the petitioner seeks a writ of Certiorari to
call for the entire records relating to the notice dated 5.8.2002 and to quash
the same.
2. According to Mr. Dulip Singh, learned counsel appearing for the
petitioner, the petitioner has not been heard before passing of the notice
dated 5.8.2002 under Section 5-A(2) of the Act, proposing to remove alleged
unauthorised constitution in the public premises; and when the Act
contemplates the issue of notice to show cause against the order of eviction
under Section 4 of the Act and to give an opportunity to the petitioner before
passing an order under Section 5 of the Act, which is admittedly appealable,
the respondents ought not to have hastened to pass the impugned order under
Section 5-A(2) of the Act.
3. In my considered opinion, the object of the procedure contemplated
under Section 4 and 5 of the Act is quite different from the procedure
contemplated under Section 5-A, 5-B and 5-C of the Act.
4. In this regard, I am obliged to extract Sections 4, 5, 5-A, 5-B
and 5-C of the Act, which reads as under.
Section 4:
Issue of notice to show cause against order of eviction.-
(1) If the estate officer is of opinion that any persons are in
unauthorised 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.
(2) The notice shall –
(a) specify the grounds on which the order of eviction is proposed to be made;
and
(b) require all the persons concerned, that is to say, all persons who are, or
may be, in occupation of, or claim interest in, the public premises, –
(i) to show cause, if any, against the proposed order on or before such date
as is specified in the notice, being a date not earlier than seven days from
the date of issue thereof; and
(ii)to appear before the estate officer on the date specified in the notice
along with the evidence which they intend to produce in support of the cause
shown, and also for personal hearing, if such hearing is desired.
(3) The estate officer shall cause the notice to be served by having
it affixed on the outer door or some other conspicuous part of the public
premises and in such other manner as may be prescribed, whereupon the notice
shall be deemed to have been duly given to all persons concerned.
Section 5:
Eviction of unauthorised 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 unauthorised 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 public premises.
(2) If any person refuses or fails to comply with the order of
eviction on or before the date specified in the said order or within fifteen
days of the date of its publication under sub-section (1), whichever is later,
the estate officer or any other officer duly authorised by the estate officer
in this behalf may after the date so specified or after the expiry of the
period aforesaid, whichever is later, evict that person from, and take
possession of the public premises and may, for that purpose, use such force as
may be necessary.
Section 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 to show cause why he shall not remove such building or
other structure or fixture 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 or fixture 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 to be kept, on any public premises, in contravention
of the provisions of sub-s on 91) 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-B:
Order of demolition of unauthorised construction.-
(1) Where the erection of any building or execution of any work has
been commenced, or is being carried on, or has been completed, on any public
premises by any person in occupation of such public premises under an
authority (whether by way of grant or any other mode of transfer), and such
erection of building or execution of work is in contravention of, or not
authorised by, such authority, then, the estate officer may, in addition to
any other action that may be taken under this Act or in accordance with the
terms of authority aforesaid, make an order, for reasons to be recorded
therein, directing that such erection of work shall be demolished by the
person at whose instance the erection or work has been commenced, or is being
carried on, or has been completed, within such period, as may be specified in
the order:
Provided that no order under this sub-section shall be made unless the
person concerned has been given, by means of a notice of not less than seven
days served in the prescribed manner, a reasonable opportunity of showing
cause why such order should not be made.
(2) Where the erection or work has not been completed, the estate
officer may, by the same order or by a separate order, whether made at the
time of the issue of the notice under the proviso to sub-section (1) or at any
other time, direct the person at whose instance the erection or work has been
commenced, or is being carried on, to stop the erection or work until the
expiry of the period within which an appeal against the order of demolition,
if made, may be preferred under Section 9.
(3) The estate officer shall cause every order made under subsection
91), or, as the case may be, under sub-section (2), to be affixed on the outer
door or some other conspicuous part, of the public premises.
(4) Where no appeal has been preferred against the order of demolition
made by the estate officer under sub-section (1) or where an order of
demolition made by the estate officer under that sub-section has been
confirmed on appeal, whether with our without variation, the person against
whom the order has been made shall comply with the order within the period
specified therein, or, as the case may be, within the period, if any, fixed by
the appellate officer on appeal, and, on the failure of the person to comply
with the order within such period, the estate officer or any other officer
duly authorised by the estate officer in this behalf, may cause the erection
or work to which the order relates to be demolished.
(5) Where an erection or work has been demolished, the estate officer
may, by order, require the person concerned to pay the expenses of such
demolition within such time, and in such number of instalments, as may be
specified in the order.
Section 5-C:
Power to seal unauthorised constructions.-
(1) It shall be lawful for the estate officer, at any time, before or
after making an order of demolition under Section 5-B, to make an order
directing the sealing of such erection or work or of the public premises in
which such erection or work has been commenced or is being carried on or has
been completed in such manner as may be prescribed, for the purpose of
carrying out the provisions of this Act, or for preventing any dispute as to
the nature and extent of such erection or work.
(2) Where any erection or work or any premises in which any erection
or work is being carried on has, or have been sealed, the estate officer may,
for the purpose of demolishing such erection or work in accordance with the
provisions of this Act, order such seal to be removed.
(3) No person shall remove such seal except-
(a) under an order made by the estate officer under subsection (2);
or
(b) under an order of the appellate officer made in an appeal
under this Act.”
5. While Section 4 and 5 of the Act deals with the procedure to be
adopted while ordering eviction of unauthorised occupants from the public
premises, Section 5-A, 5-B and 5-C of the Act deals with removal, demolition
and power to seal unauthorised construction put up in the public premises.
6. A bare reading of the above Sections makes it clear that whether
the respondents do or do not propose to evict the petitioner under Sections 4
and 5 of the Act, the respondents are entitled to invoke Sections 5-A, 5-B and
5-C of the Act to remove, demolish or seal the unauthorised construction put
up by the petitioner in the public premises. Therefore, pendency of the
proceedings contemplated under Sections 4 and 5 of the Act, in the instant
case, will not, in any way, be an impediment to invoke proceedings under
Section 5-A, 5-B and 5-C of the Act.
7. That apart, I am unable to appreciate the contention of the
learned counsel for the petitioner that the petitioner has not been heard nor
given an opportunity, before passing of the notice dated 5.8.200 2, proposing
to remove the unauthorised construction. No doubt, by the impugned
proceedings, the respondents also proposed to remove the building. But, both
the clauses in the impugned notice has to be read together, viz. to show
cause personally on 22.8.2002 at 1130 hours why the alleged unauthorised
construction should not be removed and if he fails to show cause against the
proposed removal of unauthorised construction, then only the respondents would
take action to remove the alleged unauthorised construction. If that be so,
the petitioner, by the impugned proceedings, cannot complain that he has been
deprived of putting his case to the respondents, since the impugned notice
dated 5.8.2002 itself provides an opportunity to the petitioner to show cause
personally on 22.8.2002 at 1130 hours as to why the alleged unauthorised
construction put up by him should not be removed on or before the mentioned
date. It is left open to the petitioner to avail the opportunity given in the
notice dated 5.8.2002 or not. Therefore, the contention that the petitioner
has been deprived of an opportunity to submit his case before ordering for
removal of unauthorised construction cannot be accepted.
8. Hence, except to permit the petitioner to submit his detailed
explanation or objection as the case may be, against the proposed removal of
alleged unauthorised construction in the public premises and to direct the
respondents to give an opportunity to the petitioner of being heard in that
regard, before passing appropriate orders, pursuant to the impugned notice
dated 5.8.2002 and to give reasonable time of one month to the petitioner to
work out his further course of remedy against the proposed removal of
unauthorised construction and till then to restrain the respondents from
removing the alleged unauthorised construction, no further order is required.
The writ petition is dismissed with the above directions. No costs.
Consequently, WPMP No.49506 of 2002 is also dismissed.
20.8.2002.
To
1. The Estate Officer
C/o. Defence Estate Office
Madras Circle
No.306, Anna Salai
Teynampet, Chennai – 600 018.
2. The Chief Executive Officer
Cantonement Board
St.Thomas Mount cum Pallavaram
Chennai – 600 018.
Kpl
P.D. DINAKARAN, J.