M. Tara Singh vs The Assistant Divisional Engineer Highways and Rural Works

M. Karpagavinayagam, J.—M. Tara Singh, challenging the order of the Appellate Authority (Principal District Judge), Cuddalore,

dismissing the appeal against the order of the removal of sunshade at his shop premises, has filed this civil revision petition under Article 227 of the

Constitution.

The petitioner is the owner of the premises in Door No. 26-B, Main Road, Cuddalore. He is running a shop in the premises. He erected a

sunshade in his building. On 25.6.1993, the Assistant Divisional Engineer, Highways and Rural Works, Cuddalore, the respondent herein, issued a

show cause notice u/s 4 of Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act, as to why an order of eviction should not be

made in respect of the public premises of 26-B, Main Road, to the petitioner. By the reply notice dated 16.7.1993, the petitioner informed the

respondent that he is the owner of the said premises and as such, there is no necessity to evict him on the ground of unauthorised occupation and

that the notice could not be sustained, since the premises in question could not be said to be public premises. Then, by the notice dated 3.8.1983,

the petitioner was asked to attend the enquiry before the Assistant Divisional Engineer on 11.8.1983. He participated in the enquiry and made a

written statement stating that the provisions of Tamil Nadu Public Premises Act were not applicable to the premises mentioned in the notice, as it

belongs to him and that the sunshade erected in his building could not be termed to be a public premises under the Act. He has also contended that

the sub-shade erected in his building near the pavement did not vest with the Highways Department but vested only with the Municipality and that

therefore, the Highways Department, did not have authority to initiate any action. Despite this, the respondent passed an order directing the

petitioner to remove the sunshade within fourteen days from the date of service of the notice, in default of which action will be taken to remove and

dispose it of, in public action.

The above order was challenged in the appeal filed before the Appellate Authority. After hearing the parties, the Appellate Authority as well

confirmed the impugned order of removal without considering the valid objections raised by the petitioner in the memorandum of appeal. Hence,

the revision.

Mr. Kannan, the counsel appearing for the petitioner would urge several grounds, in order to point out that both the authorities ''below have

failed to consider the basic question with reference to the applicability of the Act and also non-compliance of Section 5 of the Act.

Heard the Special Government Pleader appearing for the respondent.

Though several grounds have been urged before this Court, I am of the view that this revision shall be allowed on a simple and short ground,

which is as follows.

Section 4 of the Act contemplates issue of notices to show cause against an order of eviction. Section 5(1) would provide for the eviction of

unauthorised occupants. Under this Section, after issuing notice u/s 4 to the person concerned and after evidence if produced is taken and after

giving a reasonable opportunity of being heard, the authority may make an order of eviction for reasons to be recorded therein. u/s 5(2), if any

person fails to comply with the order u/s 5(1), the authority may evict that person from and take possession of the premises.

The conjoint reading of Sections 4 and 5 of the Act would make it clear that after the notice u/s 4 of the Act and after giving the party

concerned a reasonable opportunity of being heard, the authority, if satisfied that the premises is authorisedly occupied, may make an order of

eviction/or reasons to be recorded therein.

The mode of enquiry as per Sections 4 and 5 has been contemplated by providing the following procedure:

(1) notice u/s 4 of the Act;

(2) recording of evidence that may be produced in support of the notice;

(3) giving reasonable opportunity to the unauthorised Occupant to represent the case;

(4) the authority must be satisfied that the public premises is unauthorisedly occupied;

(5) the authority afterwards has to make an order of eviction,

(6) such an order of eviction must be supported by reasons;

(7) that order must direct the authorised occupier to vacate the premises on such date as may be specified in that order; and

(8) the copy of the said order has to be affixed on the outer or in some other conspicuous part of the public premises in question.

Only when all these requirements are satisfied, it will be deemed that a proper order u/s 5 of the Act has been passed. If such an order is passed,

the affected party has opportunity of filing an appeal to the Appellate Authority of the district u/s 9 of the Act.

In view of the above procedure, it is manifest that the impugned order of eviction shall reflect all the conditions mentioned above in item Nos. 1

to 6. Since it is subject to the scrutiny of the Appellate Authority, the reasons must be mentioned as provided in Section 5(1), in order to enable

the affected party to agitate over his rights before the Appellate Authority by pointing out that those reasonings are wrong. These principles have

been laid down by this Court in Brinda Muthuswami Vs. The Tamil Nadu Small Industries Development Corporation Ltd. and Others, .

Admittedly, the impugned order dated 16.8.1993 directing the petitioner to remove the sun-shade, does not contain reasons, as contemplated

u/s 5 of the Act. The reading of the said order would show that mere direction has been given by the authority asking the petitioner to remove the

sun-shade within fourteen days. This is clearly not in accordance with law. This aspect has been over-looked by the Appellate Authority also.

Therefore, in my view, while invoking the Article 227 of the Constitution, the orders impugned by both the authorities below are liable to be set

aside and accordingly, the same are set aside. However, this will not preclude the authorities to take such action in order to remove the sun-shade

by taking fresh proceedings after complying with all the procedures contemplated under the Act.

With the above observation, this revision is allowed. No costs. Consequently, C.M.P. No. 1366 of 1996 stands closed.