Back
1997 Supreme(Mad) 318
High Court of Judicature at Madras
THE HONOURABLE CHIEF JUSTICE MR. K.A. SWAMI & THE HONOURABLE MR. JUSTICE KANAKARAJ
The Commissioner, Madurai City Municipal Corporation, Madurai
Versus
Pandi
W.A.No.953 of 1995 and C.M.P. No.13997 of 1996 and W.P. No.18043 of 1995
Decided On : 05-03-1997
P.Srinivas, for Appellant. P.M.Bhaskaran, for Respondent.
The sufficiency of the period of notice in cases of encroachment has to be determined in the facts and circumstances of each case.
Headnote:
MUNICIPAL CORPORATION - ENCROACHMENT - NOTICE TO VACATE - SUFFICIENCY OF NOTICE - OPEN SPACE - PARKING OF VEHICLE - OBSTRUCTION TO PUBLIC MOVEMENT - TWO DAYS' NOTICE HELD SUFFICIENT - WRIT PETITION DISMISSED - WRIT APPEAL ALLOWED.
Fact of the Case:
The petitioner, who had been occupying an open area adjoining his shop premises belonging to the Municipal Corporation, unauthorizedly, filed a suit before the civil court claiming a right over the encroached area. The Municipal Corporation consented for a degree to legalize the possession upto a certain point of time and thereafter, liberty was reserved to the Municipal Corporation to take action, in accordance with law.
Finding of the Court:
The court held that the petitioner had no right to continue to occupy the open space and park his vehicle there, obstructing the movement of the public. The court further held that the notice of two days was more than sufficient, considering the fact that the petitioner had enjoyed the stay for a period of two years.
Issues: 1. Whether the petitioner had the right to continue to occupy the open space and park his vehicle there, obstructing the movement of the public. 2. Whether the notice of two days was sufficient.
Ratio Decidendi: The court relied on the decision of the Supreme Court in Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan, A.I.R. 1997 S.C. 752, wherein it was held that the removal of encroachment needs urgent action and that the competent authority should ensure constant vigil on encroachment of public places.
Final Decision: The writ petition was dismissed and the writ appeal was allowed. The interim order passed by the learned single Judge was set aside.
K.A. Swami, C.J.
The writ appeal is preferred against the interim order granted by the learned single Judge. Therefore, when the appeal came up for consideration, we thought it necessary to hear the writ petition itself, therefore the writ petition is also posted along with the writ appeal. We have heard both the cases together.
2. In the writ petition, the petitioner has sought for quashing the proceedings bearing V-7/51210/91, dated 112. 1995 issued by the Commissioner of the Municipal Corporation, Madurai, directing the petitioner to vacate the area encroached by him.
3. It may be pointed out there, a shop promises belonging to the Municipal Corporation has been let out to the petitioner, but, he has been occupying the open area adjoining the shop premises unauthorisedly. Not only that, he want to the extent of filing a suit before the civil court, claiming a right over the encroached area. However, to avoid the unnecessary litigation, the Municipal Corporation appears to have consented for a degree to legalise the possession upto a certain point of time and thereafter, liberty was reserved to the Municipal Corporation to take action, in accordance with law. The terms of the decree passed in G.S.801 of 1991 by the Principal District Munsif, Madurai, are as follows:
“1. The plaintiff is continuously paying me licence fee as agreed to the suit property, Shop No.18 and the verandah in Block ‘D’, Bharathiyar New Complex every month and at present Rs.2,700 per month.
2. The plaintiff now agreed to pay a separate licence fee for the4 suit vacant site i.e., on the eastern side of the shop No.18, ‘D’ measuring 35’ x 8’ i.e., for 280 sq.ft. at the rate of Rs.4 (Four rupees only) per sq.ft per month amounting to Rs. 1,120 (Rupees One thousand and hundred and twenty only) per month for 280 sq.ft for the period 1991-92,1992-93,1993-94 and 1994 to 1995 amounting to Rs.13,440 for the period 1991-92 Rs.13,440 for the period 1992-93 Rs.13,440 for the period 1993-94 Rs.13,440 for the period 1994-95. totally amounting to Rs.53,760 (Rupees Fifty three thousand seven hundred and sixty only).
3. The plaintiff agrees to pay the above said arrears amount of Rs.53,760 (Rupees fifty-three thousand seven hundred and sixty only) to the defendant on or before 33. 1995 as agreed.
4. The plaintiff agrees to pay the above said arrears amount of Rs.53,760 (Rupees fifty-three thousand seven hundred and sixty only) to the defendant on or before 33. 1995 as agreed.
5. The defendant has to take any action against the plaintiff hereafter only as per law.” Thus, from 33. 1995 onwards, the petitioner has had no authority to continue to occupy the open space and park his vehicle there, obstructing the movement of the public. Therefore, the Commissioner issued the impugned notice on 112. 1995 referring to the decree passed in O.S. No.801 of 1991 and further stating that after 33. 1995, the petitioner has no right to continue to be in possession and to vacate the same, within two days from the date of receipt of the said notice.
4. We may point out here that this is an open space. The petitioner is parking the vehicle, thereby causing inconvenience to the public, as such no time is required to vacate the place. What all is required is to stop, parking his vehicle. Therefore, the argument constructed by the learned counsel for the petitioner that time granted is too short and it amounts to breach of the principle of natural justice, cannot be countenance and it is too much on the part of the encroacher to plead principle of natural justice. He had sufficient time and this is not a case, in which the occupant has stored any material or is carrying on any business or put up any construction. This is a case, in which in the open space, he is unauthorisedly parking the vehicles and obstructing the public movement. Therefore, two days’ notice, in the facts and circumstances of the case was more man sufficient. Sufficiency of the period of notice in such c
