Removal of encroacher of municipal property without issuance of notice.
222. (1991) 2 MLJ 187 (Mad)

The prayer in the writ petition is as follows :-

"For the reasons stated in the accompanying affidavit the petitioners herein pray that this Honourable Court may be pleased to issue a writ, order or direction specifically in the nature of a writ of mandamus, directing the respondents and their subordinates to forbear from dispossessing or evicting the petitioners from their respective shops situated at Chinnaswamy Naidu Street, Sankodipuram Street and Telephone Exchange Street, around Rajagopal Gounder Park and opposite to Municipal Bus Stand, Dharmapuri without following due process of law and natural justice." *

2. The 16 writ petitioners have been running small business in shops measuring about 8' x 6' situate at Chinnaswamy Naidu Street, Senkodipuram Street and Telephone Exchange Street near Rajagopal Gounder Park in Dharmapuri Town, opposite to the Dharmapuri Bus stand for the last 15 years and the petitioners are running various types of businesses, namely tea shop, banian shop, Beeda stall, garment shop etc. It is alleged that the entire strip of vacant land is a Poramboke land belonging to Dharmapuri Municipality. It is stated that the petitioners have been running their petty trades in the small tiled sheds, constructed by themselves in the said Poramboke land, and none of these shops is causing any obstruction to the public or traffic. It is alleged that the first respondent-municipality also recognised these encroachments and has been levying encroachment fees all these years and most of the shops have been (given) electricity connection. It is also alleged that superstructure tax also has been levied and collected by the Municipality. While so, on 23-2-1991 at about 4.00 p.m. about 100 people consisting of municipal workers and policemen came to the shops of the petitioners and without giving the petitioner any opportunity began violently demolishing the tiled sheds in which the petitioners have been running their shops. It is also stated that the goods stored in the shops were damaged, and the petitioners immediately sent telegrams and petitions to the Authorities and they also went on hunger strike for three days and there was no reaction from the authorities. The petitioners are also threatening (sic) that they will be thrown away forcibly from the place unless they vacate the place within 15 days. It is stated that the entire operation has been carried out in gross abuse of power. It is alleged that the action of the respondents in demolishing their sheds, damaging their goods and threatening to evict them is illegal and arbitrary. It is also stated that no notice under Land Encroachment Act has been given to the petitioners. It is stated that the action of the respondents in not following any procedure prescribed by law offends Art. 21 of the Constitution of India. With these allegations the petitioners came up before this Court.

3. Notice of motion has been ordered by me on 11-3-1991. Mr. P. Arivudainambi, learned Government Advocate takes notice on behalf of the respondents and undertakes that the petitioners will not be dispossessed and an order of status quo was ordered on 14-3-1991.

4. A counter affidavit has been filed by the first respondent. In paras 5 and 6 of the counter affidavit it is stated that the first respondent municipal council has passed a resolution on 11-1-1984 to levy fees for the temporary occupation of lands within the new bus stand for putting up bunk shops, and the Council has also resolved to collect the encroachment fees as per the old rate i.e., for the first 10 sq.metrs or part thereof Rs. 100/-p.m. and for every additional occupation of 1 sq. mtr. or part thereof Rs. 15/- p.m. as per S. 183(2) of the Act. It is stated that a notification to that effect was issued by the Dharmapuri Municipality and in pursuance of the resolution encroachment fees has been collected from the temporary occupiers and they were allowed to continue till 30th March of every subsequent year. It