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Judgment
T.S. Sivagnanam, J.—By consent, the writ petition is taken up for final disposal.
The prayer in the writ petition is to forbear the respondents from evicting the petitioner from the peaceful possession and enjoyment of the house
property at No. 32C, Kuruvikaran Salai, Madurai-3, except through due process of law.
The petitioner is said to have purchased an extent of 679 sq.ft from one Kasim Bai bearing Door No. 32-C by a deed of sale, dated
30.09.1990. The second respondent assessed the petitioner''s property and she has been paying drainage tax and she is also having electricity
connection in the said premises for the past 19 years. The grievance of the petitioner is that the officials of the second respondent came to her
residence cum shop and demolished the same without any proper notice. Therefore, the petitioner has approached this Court stating that removing
the petitioner from the place on the ground that it is an encroachment without issuing notice is against the law.
Learned standing Counsel for the petitioner on instructions would submit that prior to the demolition of the property owned by the petitioner no
notice was issued to her. It is further submitted that the petitioner is occupying the place near the District Collectorate and it is abutting a channel
and therefore, in public interest she has to be evicted.
Heard Mr. T. Lajapathi Roy, learned Counsel for the petitioner and Mr. Pala.Ramasamy, learned Special Government Pleader for the first
respondent and Mr. M.Suresh Kumar, learned Counsel for the second respondent and perused the materials available on record.
The fact that no notice was issued to the petitioner before her property was partly demolished is admitted by the second respondent. It is the
assertion of the petitioner that she is the owner of the property having purchased the same by a sale deed dated 30.09.1990, registered as
Doc.No.4546/1990 on the file of the District Registrar, Madurai. The petitioner has also filed copies of sewage and drainage tax receipts, property
tax receipts issued by the second respondent Corporation, receipts issued by the electricity board for payment of electricity consumption charges
to prove that she is the lawful possession of the premises.
Learned Counsel for the petitioner would place his submission on two grounds namely, if the petitioner is said to be an encroacher in terms of
Section 258 of the Madurai City Municipal Corporation Act, 1971, the Commissioner may require the owner or occupier of any premises to
remove or alter any projection, encroachment or obstruction in or over any street or any public place, the control of which is vested in the
Corporation and for such purpose, a notice should be issued by the Commissioner. On such a notice, the owner or the occupier has got an
opportunity to explain that they have been in possession of nearly 30 years or that such construction was erected with the consent of the municipal
authority and the corporation shall make compensation to every person who suffers damage by removal or demolition of the same. Therefore, such
power u/s 258 of the Act cannot be exercised without issuance of a notice in writing. Further it is necessary that the said encroachment or
obstruction should be in front of such premises and in or over any street should place under the control of the Corporation. It is further submitted
by the learned Counsel for the petitioner that the petitioner is occupying the said land abutting channel. However, this question cannot be gone into
at this stage of the matter. It is sufficient to take note that no notice has been issued as required u/s 258(1) of the Act.
The second submission of the learned Counsel is by placing reliance on a decision of this Court in B.M. Habibullah, etc. etc. Vs. State of Tamil
Nadu and Others, , a case arising under the Tamil Nadu Land Encroachment Act wherein this Court held that forcible eviction by revenue
authorities was bad and the authorities were directed to restore the premises to the petitioners therein.
Admittedly, the present action is by the second respondent Corporation and if it is their claim that the land belongs to the Corporation, then it is
mandatorily required to issue notice u/s 258(1) of the Act, more so, when there are documents filed before this Court to show that the petitioner
has been in possession of the property for quite a considerable length of time. Therefore, on this ground alone, I am inclined to accept the case of
the petitioner and accordingly, the writ petition is allowed as prayed for. However, it is made clear that it is always open to the respondents to
initiate appropriate action in accordance with law after affording an opportunity to the petitioner as required under the statute and initiate eviction
proceedings, if they so desire. No costs. Consequently, M.P.(MD) No. 1 of 2009 is closed.