AI Structured Summary
Not yet generated for this judgment
Judgment
Kanakaraj, J.—The petitioners do not dispute the fact that they had encroached on the Main Road in Mettur Dam years ago. The
respondent Town Panchayat had been collecting encroachment fees. In the year 1990, the respondent took steps to evict the petitioners. W.P.
Nos. 3892, 4836 and 4837 were filed in 1991 and these Writ Petitions were allowed as follows:
In case, the petitioners are encroachers, it is open to the Mettur Town Committee, Mettur Dam, Salem District, to take action against the
petitioners according to law, after giving notice to the petitioners. It is also well settled that even assuming that the petitioners are encroachers,
procedure prescribed for eviction of encroachment had to be followed before dispossessing the encroachers.
Thereafter notices were issued in June, 1992 u/s 182(1) of the Madras District Municipalities Act (hereinafter called the Act) giving 15 days to
remove the encroachments. Though the Mettur Town is governed by the Mettur Township Act, 1940, u/s 4(1) of the Township Act the District
Municipalities Act have been made applicable to the Mettur Town. The writ petition is to prohibit the respondent from enforcing the notices on the
ground that after the passing of the Tamil Nadu Public Premises (Eviction of unauthorised occupants) Act, 1960, the provisions of the District
Municipalities Act relating to removal of encroachments stand impliedly repealed. Therefore, it is contended that action, if at all can be taken only
under the Tamil Nadu Public Premised (Eviction of unauthorised occupants) Act.
In the counter affidavit filed by the respondent it is stated that the Mettur Dam is a Tourist spot and because of the subject encroachments the
public and tourists are put to considerable inconvenience. It has become difficult for the tourists to reach the bus-stand form the West Main Road.
The respondent denies that the petitioners are in occupation for 15 years. The levy and collection of encroachment fee will not regularise the
encroachment. It is stated that on many occasions the encroachers were prosecuted and sentenced to pay fine. So far as the Public Premises Act
is concerned, it is stated that the respondent cannot invoke the same because no Estate Officers have been appointed and in any event that Act will
not override the Municipalities Act.
The only question to be decided is whether the Municipalities Act apply to the case, notwithstanding the enactment of the Public Premises Act.
Though the question raised appears to be simple, it involves important principle of statutory interpretation. It has to be remembered that both
enactments were passed by the State Legislature. Though there is a possibility of both the enactments applying whenever the respondent decides
to remove the encroachments, it cannot be disputed that as on date the Public Premises Act cannot be invoked by the respondent because Estate
Officers have not been appointed u/s 3 of the Act in respect of the area in question.
That apart the question of a latter Act repealing an earlier enactment in respect of an area of subject matter to which both enactment equally
apply, is beset with very many statutory restrictions and caution. In Municipal Council Palai Vs. T.J. Joseph and Others, the court was concerned
with a public bus stand constructed by a Municipality. The Municipal Council not only levied charges on the buses using the Bus stand but also
prevented the use of other places within a radius of six furlongs, as a halting place. The levy was challenged on the ground that, after the
Travancore-Cochin Motor Vehicles Act the power of the Municipalities to provide bus stands stood repealed. The argument was rejected.
Observed the apex Court:
It is undoubtedly true that the legislature can exercise the power of repeal by implication. But it is an equally well settled principle of law mat there
is a presumption against an implied repeal. Upon the assumption mat the legislature enacts laws with a complete knowledge of all existing laws
pertaining to the same subject the failure to add a repealing clause indicates that the intent was not to repeal existing legislation. Of course, this
presumption will be rebutted if the provisions of the new Act are so inconsistent with the old ones that the two cannot stand together.
They quoted with approval the observations of Crawford on Statutory Construction which is as follows:
There must be what is often called ''such a positive repugnancy between the two provisions of the old and the new statutes that they cannot be
reconciled and made to stand together''. In other words they must be absolutely repugnant or irreconcilable. Otherwise, there can be no implied
repeal..................for the intent of the legislators to repeal the old enactment is utterly lacking.
Northern India Caterers Private Ltd. and Another Vs. State of Punjab and Another, is closer to the facts of our case. In that case action was taken
under the Punjab Public Premises and Land (Eviction and Rept. Recovery) Act, 1959 to evict a lesee, whose term of lease came to an end. The
action being challenged, the High Court held that the civil remedy was impliedly repealed by the public premises Act and therefore, there was no
discrimination in invoking the Act, to evict a person from the public premises. On appeal the Supreme Court held that there was no implied repeal
and there can be two remedies for the Government to evict unauthorised person, provided there are sufficient guidelines to the authority to invoke
one or other of the enactment. On the question of repeal they quoted with approval the following passages in Maxwell on Interpretation of
Statutes.
A sufficient Act ought not to be held to be repealed by implication without some strong reason. It is reasonable presumption that the legislature did
not intend to keep really contradictory enactments on the Statute Book, or, on the other hand, to effect so important a measure as the repeal of
law without expressing an intention to do so. Such an interpretation therefore, is not to be adopted unless it be inevitable. A reasonable
construction which offers an escape from it is more likely to be in consonance with the real intention.
They concluded :
In our view, the High Court with respect was in error in holding that there was an implied repeal only because the two sets of provisions deal with
the subject matter of eviction in respect of public premises.
On the question of discrimination they observed.:
There can be no doubt that Section 5 confers an additional remedy over and above the remedy by way of suit and/that by providing two
alternative remedies to the Government and in leaving it to the unguided discretion of the Collector to resort to one or the other and to pick and
choose some of those in occupation of public properties and premises for the application of the more drastic procedure u/s 5, that section has lent
itself open to the charge of discrimination and as being violative of Article 14. In this view Section 5 must be declared to be void.
In this case it must be remembered that no question of discrimination either arises or is argued. By way of completion, I may refer to a recent
judgment of the Supreme Court in Ashoka Marketing Ltd. and Anr., v. Punjab National Bank and Ors., 1990 (4) SCC 407 where the apex court
decided the ticklish issue whether the provisions of the Public Premises Act overrides the provisions of the Delhi Rent Control Act. Observed the
Apex Court:
For the reasons, aforesaid, we are unable to accept the contention of the Learned counsel for the petitioners that the provisions contained in the
Public Premises act cannot be applied to premises which fall within the ambit of the Rent Control Act. In our opinion, the provisions of the Public
Premises Act, to the extent they cover premises falling within the ambit of the Rent Control Act, override the provisions of the Rent Control Act
and person in unauthorised occupation of public premises u/s 2(e) of the Act cannot invoke the protection of the Rent Control Act.
The principles discrnible from this latest judgment of the Supreme Court are as follows :
(i) If both the laws are enacted by the same legislative body and if both the laws can be construed as Special laws and apply in the same area and
subject matter, the latter will prevail over the former.
(ii) To find out whether the legislature intended an implied repeal of the former Act the Court must look into (i) the object and purpose behind both
the Acts, (ii) The Special and specific purposes for which the Special Laws came to be made and; (iii) the policy and intention of the legislature.
Keeping in mind these principles and caution administered by Crawford and Maxwell in the passages quoted earlier, let me examine the object
and purpose of both the Acts. The Municipalities Act passed in the year 1920 was for the purpose ''of providing a good Government for a town or
village constituted as a Municipality. It has its own elected Council, it shall have perpetual succession and a common seal and can acquire and hold
property. Section 61 of the Tamil Nadu District Municipalities Act provides for vesting of all public streets and appurtenances in the Municipal
Council. It has power to levy and collect taxes. It has duties of providing water supply, lighting, drainage, public conveniences and scavenging. It
has duty to Maintain and repair Streets. It is under this chapter that there is a provision for removal of encroachments, namely, Section 182. There
are provisions for granting licences to sell in private or public markets. The public premises Act is an Act which provides for the eviction of
unauthorised occupants from public premises. The definition of public premises takes in, premises vested with a local authority. The power of
passing orders of eviction is vested only in certain estate officers. The power and control of a Municipality with reference to street is coupled with a
power to permit sale in stalls and bunks in road margins. In my opinion the two enactments operate in different fields and there is no scope for
misuse or discrimination. I hold that the Public Premises Act does not impliedly repeal the Municipalities Act.
On the facts of the present case I have already referred to the fact that there is no chance for the respondent to invoke the public premises Act.
I have no hesitation in holding that the resort to the District Municipalities Act is perfectly legal and the notices cannot be invalidated. Consequently,
the writ Petition fails and is dismissed.
No costs.