Sampath Raj, Partner of Vijay and Co., Madras and Others vs The State of Tamil Nadu

Nainar Sundaram, J.—These writ petitions come up after notice of motion. Mr. N.R. Chandran, Additional Government Pleader, represents

the respondents. The petitioners are facing proceedings under the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act 1975

(Act I of 1976) hereinafter referred to as the Act. Mr. Sampath Kumar, supported by Mr. G. Venkataraman, learned counsel appearing for the

petitioners, would urge the following points. The first contention is that the petitioners were served with only notices in Form B for the enquiry

under S.5 of the Act, scheduled to be held on 3rd July, 1985 and the petitioners were not earlier served with any notice under Sec.4 of the Act.

Learned Additional Government Pleader in answer supported by records says that notices under S.4 of the Act were, in fact, served earlier on the

then occupants, and the petitioners have come into the picture only after service of notices under S.4 of the Act, and it would not lie in their mouth

to plead want of notice under S.4 of the Act especially when the same proceedings are being continued. If once a notice under S.4 of the Act has

been issued and duly served and the process is being continued, it is not permissible for an occupant who comes into the place of the previous

occupant subsequently to plead that he should also be given a notice under S.4 of the Act. If this proposition is to be countenanced, the working of

the provisions of the Act can be successfully stultified and successive mushroom occupants, in spite of the initiation and pendency of the

proceedings under the Act, can go on insisting for fresh processes for them, and the provisions of the Act will become absolutely unworkable.

Hence, I am not able to countenance this contention of the learned counsel for the petitioners.

The second contention put forth by the learned counsel for the petitioners is that no inquiry was held on 3rd July, 1985 even though it was so

notified under form B notice. Learned Additional Government Pleader produces the records, and they amply bear out that there was, in fact, an

enquiry conducted and representations have been received from a number of persons on the question of encroachments being objectionable or

not. As rightly contended by the learned Additional Government Pleader, if in fact there was no enquiry held on 3rd July, 1985, the petitioners

would have immediately voiced forth their protests that in spite of notices for enquiry on 3rd July, 1985, no enquiry as such was held and they

were not afforded any opportunity to present their cases. Admittedly, no such representation was made. Hence, I have to eschew this contention

of the learned counsel for the petitioners. Thirdly, it was contended on behalf of the petitioners by their learned counsel that the order under S.5 of

the Act was not at all served on them. This contention requires countenance. The records produced by the learned Additional Government Pleader

show that the copy of the order was only affixed on the wall of the Vinayakar Temple near door No. 248, Erukkancheri High Road. Further, the

order directs the unauthorised occupants to vacate the premises forthwith and does not give a particular date on which they shall vacate. While

recapitulating the conditions to be satisfied for passing an order under S.5 of the Act, a Bench of this Court, to which I have been a party, in

Brindhra Muthuswami v. Tamil Nadu Small Industries Development Corporation Ltd., 96 L.W. 313 observed as follows:

S.5 of the Act definitely contemplates--(1) notice under S.4 of the Act; (2) recording of evidence that may be produced in support of the notice

under S.4 of the Act; (3) giving reasonable opportunity to the unauthorised occupant to represent the case; (4) the Estate Officer must be satisfied

that the public premises is unauthorisedly occupied; (5) the Estate Officer 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 unauthorised occupant 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 door or in some other conspicuous part of the public

premises in question.

There is no difficulty in regard to conditions 1 to 6 and they do stand duly satisfied on the facts of this case. Condition No. 7 contemplates that the

order must direct the unauthorised occupier to vacate the premises on such date as may be specified in that order. Condition No. 8 contemplates

the order to be affixed on the outer door or in some other conspicuous part of the public premises in question. These conditions have not been

obviously complied with in the present cases. I heard learned Additional Government Pleader saying that orders under S.5(1) of the Act, duly

complying with condition 7 shall be passed afresh and copies thereof shall be served on the petitioners in these writ petitions as per the addresses

disclosed in the writ petitions or on the counsel for the petitioners before steps are taken to remove the encroachments. This is recorded. Though

this may facilitate the petitioners to get the copies of the order and then to resort to the appeal process under S.9 of the Act, if they so choose, yet

learned counsel appearing for the petitioners were not appreciating and accepting this offer. Whatever that be, until conditions 7 and 8 are

complied with removal of encroachments is not permissible. Accordingly these writ petitions are ordered in the following terms--

The respondents shall not proceed with the process of removal of encroachments until the orders under S.5 of the Act duly complying with

conditions 7 and 8 set out above are made and served. No costs. It is needless to state that if such orders are made and served as directed above,

the petitioners will have the statutory remedy of appeals as contemplated under S.9 of the Act.