Alphonse v. Pondicherry Municipality

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 30.01.2009CORAMTHE HONOURABLE MR. JUSTICE K.K. SASIDHARANWrit Petition No.1801 of 2009andM.P.No.1 of 2009Alphonse .. Petitioner Versus1.The Commissioner,Pondicherry Municipality,Pudhucherry-01.2.The Revenue Officer-I,Pondicherry Municipality,Puducherry-01 .. Respondents Writ petition has been filed under Article 226 of theConstitution of India for issuance of a Writ of Mandamus to call forthe records on the file of the first respondent in proceedingNo.891/PM/R.O II/Survey/08 dated 24.12.2008 and further direct thesecond respondent to conduct a fresh enquiry under the provisions ofPondicherry Municipalities Act, 1973.For Petitioner : Mr.V. RaghavachariFor Respondents 1 & 2 : Mr.R. Natarajan, Addl. Govt. Pleader (Pondicherry)ORDERThis Writ Petition is directed against the order dt. 24.12.2008on the file of the First Respondent whereby the petitioner wasdirected to vacate the property in T.S.No.H/1/10 Part withmeasurement 36.9 X 6.1 equivalent to 225.1 m2 in PondicherryMunicipality. https://hcservices.ecourts.gov.in/hcservices/ Factual Matrix:2. The first respondent as per notice in form ’A’ dt.11.8.2008initiated eviction proceedings against the petitioner. On receiptof the notice, the petitioner submitted his explanation on 4.9.2008and the same was received by the first respondent on 8.9.2008.Subsequently the second respondent as per notice dt. 7.11.2008 calledupon the petitioner to appear for an enquiry on 13.11.2008. Sincethe petitioner was not in a position to appear on the date ofenquiry, he submitted a letter of request for adjournment and thesame was granted and enquiry was re-posted to 20.11.2008. Thoughthe petitioner appeared in the office of the second respondent on20.11.2008, no enquiry was conducted and there was no responseeither from the respondents or from their office and as such he leftthe office. In the meantime he received the impugned order dt.24.12.2008 calling upon him to remove the encroachment within 35days, and in the column earmarked for reasons, it was foundmentioned as the failure of the petitioner to attend the enquiry.According to the petitioner, the property absolutely belongs to himand the same is also evident from prior legal proceedings.Therefore he seeks to quash the impugned order presumably on theground of violation of the principles of natural justice.3. Heard Mr. V. Raghavachari, the learned counsel forpetitioner and Mr.R. Natarajan, Learned Additional Government Pleaderfor Pondicherry, appearing on behalf of the respondents. Byconsent the Writ Petition itself is taken up for disposal.Submissions : 4. The learned counsel for the petitioner contendedthat no effective opportunity was granted to the petitioner to submithis version, before passing the impugned order. According to thelearned counsel there was no act of encroachment on the part of thepetitioner and the petitioner had documentary evidence to prove hiscontention and denial of opportunity to substantiate his contentionvitiates the order, and prayed for a personal hearing after settingaside the impugned order.5. Thiru.R.Natarajan, Learned Additional Government Pleader forPondicherry submitted that the petitioner is in unlawful possessionof Municipal land in a prime locality and it was only for thepurpose of laying a road for the general public that the municipalityinitiated proceedings for eviction. According to the learnedAdditional Government Pleader, there is no equity in favour of thepetitioner, he being a rank trespasser. The learned AdditionalGovernment Pleader further submitted that reasonable opportunitywas given to the petitioner to submit his version and though he wascalled for an enquiry, he failed to appear and as such the https://hcservices.ecourts.gov.in/hcservices/ authorities have no other option than to pass final orders andaccordingly he prayed for dismissal of the writ petition.Analysis: 6. On a perusal of the impugned order, I am of the view thatthere is no need to consider the merits of the claim made by thepetitioner and the act of encroachment alleged by the respondents,as there is no mention in the impugned order about the reason forpassing the order of eviction.7. Admittedly notice was issued to the petitioner in Form’A’ and a reply was also submitted by the petitioner to the saidnotice. Subsequently notice of enquiry was issued and enquiry wasadjourned at the request of the petitioner. It is the case of thepetitioner that no further enquiry was conducted, though he appearedbefore the second respondent on 20.11.2008. According to therespondents the petitioner failed to avail the opportunity ofpersonal hearing which made them to pass an exparte order ofeviction.Statutory Provisions: 8. Chapter XVII of the Pondicherry Municipalities Act1973 (Hereinafter referred as ‘Act’) provides for eviction frommunicipal premises. Section 414(a) defines municipal premises asany land or building belonging to or vested in the municipal councilwhich includes garden, grounds and outhouses etc.Sub.Clause (b) of Section 414 defines “unauthorized occupation”thus:“ 414 (b)"unauthorised occupation", inrelation to any municipal premises, means theoccupation, by any person of the municipal premiseswithout authority for such occupation and includesthe continuance in occupation by any person of themunicipal premises after the authority (whether byway of grant or any other mode of transfer) underwhich he was allowed to occupy the premises thepremises has expired or has been determined for anyreason whatsoever." 9. Section 415 of the Act provides for issue of notice toshow cause against order of eviction and the said provision reads thus“ 415. Issue of notice to show cause againstorder of eviction:-(1)If the Commissioner is of opinion thatany persons are in unauthorized occupation of anymunicipal premises and that they should beevicted, the Commissioner shall issue in the https://hcservices.ecourts.gov.in/hcservices/ manner hereinafter provided a notice in writingcalling upon all persons concerned to show causewhy an order of eviction should not be made.(2)The notice shall,- (a)Specify the grounds on which the orderof eviction is proposed to be made; and (b)require all persons concerned, that say,all persons who are, or may be, in occupation of,or claim interest in, the municipal premises, toshow cause, if any, against the proposed order onor before such date as is specified in the notice,being a date not earlier than ten days from thedate of issue thereof.(3)The Commissioner shall cause the noticeto be served by having it affixed on the outerdoor or some other conspicuous part of themunicipal premises and in such other manner as maybe prescribed, whereupon the notice shall bedeemed to have been duly given to all personsconcerned.(4)Where the Commissioner knows or hasreason to believe that any persons are inoccupation of the municipal premises, then withoutprejudice to the provisions of sub-section (3), heshall cause a copy of the notice to be served onevery such person in the manner provided insection 467.“ 10. Section 416 of the Act provides for the procedure tobe followed by the Commissioner in the matter of eviction.“ 416. Eviction of unauthorised occupants:- (1)If, after considering the cause, if any,shown by any person in pursuance of a notice undersection 115 and any evidence he may produce insupport of the same and after giving him areasonable opportunity of being heard, theCommissioner is satisfied that the municipalpremises are in unauthorized occupation, theCommissioner may, on a date to be fixed for thepurpose, make an order of eviction for reasons tobe recorded therein directing that the municipalpremises shall be vacated by all persons who maybe in occupation thereof or any part thereof, andcause a copy of the order to be affixed on theouter door or some other conspicuous part of the https://hcservices.ecourts.gov.in/hcservices/ municipal premises.(2)If any person refuses or fails to complywith the order of eviction within thirty five daysof the date of its publication under sub-section(1), the Commissioner or any other officer dulyauthorised by the Commissioner in this behalf mayevict that person from, and take possession of,the municipal premises and may, for that purpose,use such force as may be necessary."11.The Commissioner of the Municipality while exercising the powers of a statutory authority for the purpose of eviction, isdeemed to be a civil court under the code of Civil procedure 1908 inrespect of "(a)summoning and enforcing theattendance of any person and examining him on oath;(b)requiring the discovery and production ofdocuments;(c)any other matter which may be prescribed.12. The Act provides an appeal to the District Judge or anyother Judge not below the rank of a Subordinate Judge from the ordersof the Commissioner.13. Section 421 of the Act gives finality to the order made bythe Commissioner and such orders are immune from challenge in anysuit, application or execution proceedings.14. Therefore it is clear that there is a prescribedProcedure contemplated for eviction of unauthorized occupants frommunicipal property. The alleged encroachers are given an opportunityto produce evidence in support of their plea followed by anopportunity of personal hearing. The enquiry provided is not anempty formality and the Commissioner is bound to consider thesubmissions of the encroacher and he should come to a conclusion onthe basis of the materials available on record. The act mandates thatthe Commissioner should be satisfied that municipal premises are inunauthorized occupation and he should also record his reasons forcoming to a particular conclusion.15. In the present case the order is made in a printed formatand as against the column earmarked for recording reasons, it wasrecorded thus:REASONS “ You have not attended the enquiry asscheduled in the enquiry notice. The site in questionis required for laying of road” https://hcservices.ecourts.gov.in/hcservices/

16. The reasons as found mentioned in the impugned order doesnot satisfy the statutory requirements as provided under Sec. 416 ofthe Act. The Commissioner was expected to consider the nature ofencroachment, including the extent, the explanation submitted by theencroacher and the evidence produced by him in support of hisdefence as well as the submissions made by the encroacher duringthe time of personal hearing. The order of the Commissioner shouldcontain reasons in support of his conclusion. 17. The Commissioner was not expected to express the particularusage of the property after eviction, while initiating proceedingsfor eviction. It was not open to an encroacher of a municipalproperty to contend that no reference was made in the show causenotice or in the eviction order with regard to the requirement of theencroached land. Neither the show cause notice nor the final orderof eviction would be bad on account of absence of such details. Themunicipality is entitled to restore possession of its property andit is not the concern of the encroacher about the purpose for whichsuch property would be used after recovery of possession.18. The definition of unauthorized occupation is so wide thatit includes the continuance in occupation by any person of themunicipal premises after the expiry of the grant made by theMunicipality. The municipality is entitled to recover possession ofits property by resorting to the provisions as contained in ChapterXVII of the Act. Therefore it is all the more necessary for theCommissioner to state the reasons for eviction.19. It is trite that when the statute says that a particularthing has to be done in a particular manner, it should be done onlyin that manner. The Provisions of the Act are applicable both to theauthorities as well as to the encroachers. Therefore when the Actprovides that the order of the Commissioner in an eviction proceedingshould contain reasons, he is bound to record the reasons. It is nota defence that the encroacher has failed to attend the enquiry andas such there was no requirement to record reasons.20. The petitioner has submitted his explanation to the showcause notice and even if he fails to attend the personal hearing,Commissioner was obliged to pass a reasoned order. Therefore therewas no justification for passing the order of eviction solely onaccount of the failure of the petitioner to attend the personalenquiry.21.The Pondicherry Municipalities Act is a self contained Codeand the Act deals with various aspects of municipal administrationincluding preservation of its property. https://hcservices.ecourts.gov.in/hcservices/ STATUTORY REMEDY 22. The Act also provides the remedy available to anaggrieved against an order passed by the Commissioner, under Section416 or 418 of the Act. As per Section 420 of the Act the AppellateAuthority shall be the District Judge or any other judge not belowthe Rank of a Subordinate Judge. The Appellate powers are given tothe courts with a view to consider the claim of the aggrieved onmerits and as per law. Very often these appeals are kept pending forseveral years, even though Act specifically provides that theproceedings shall be disposed of by the Appellate Authority asexpeditiously as possible. Therefore there should be an earnestattempt on the part of the appellate authority to dispose of theappeals within a reasonable time.23. Even though there is an appellate remedy available tothe petitioner, I am of the considered view that, when the orderimpugned is ex-facie illegal and made in violation of the prescribedprocedure, a Writ Petition under Art.226 of the Constitution ismaintainable against such orders.24. Similarly when the order is bereft of details and no reasonsare found mentioned in support of the order there is no point inrelegating the parties to the appellate forum and such course wouldbe a time consuming process and drag the proceeding indefinitely.Failure to give reasons – Denial of justice25. The authorities while exercising quasi-judicial functionsmust record reasons in support of their conclusion. It is notnecessary to pass a lengthy order. In case, reasons are supplementedit would enable the appellate and Revisional Authorities to ascertainthe materials considered by the authority in arriving at a decisionin a particular manner. In case reasons are not furnished in theorder, it would result in failure of justice.Legal Position:26. The Hon’ble Supreme Court in Union of India Vs.Jaiprakash Singh and another (2007 (4) Scale 299) indicated thenecessity to state reasons thus:"7.Reasons introduce clarity in an order.On plainest consideration of justice, the HighCourt ought to have set forth its reasons,howsoever brief, in its order indicative of anapplication of its mind, all the more when itsorder is amenable to further avenue of challenge.The absence of reasons has rendered the HighCourt's judgment not sustainable. https://hcservices.ecourts.gov.in/hcservices/

8.Even in respect of administrative ordersLord Denning M.R. in Breen V. AmalgamatedEngineering Union (1971 (1) All E.R.1148) observed"The giving of reasons is one of the fundamental ofgood administration". In Alexander Machinery(Dudley) Ltd. v. Crabtree (1974 LCR 120) it wasobserved: "Failure to give reasons amounts todenial of justice". Reasons are live links betweenthe mind of the decision taker to the controversyin question and the decision or conclusion arrivedat". Reasons substitute subjectivity byobjectivity. The emphasis on recording reasons isthat if the decision reveals the "inscrutable faceof the sphinx", it can, by its silence, render itvirtually impossible for the Courts to performtheir appellate function or exercise the power ofjudicial review in adjudging the validity of thedecision. Right to reason is an indispensable partof a sound judicial system, reasons at leastsufficient to indicate an application of mind tothe matter before Court. Another rationale is thatthe affected party can know why the decision hasgone against him. One of the salutary requirementsof natural justice is spelling out reasons for theorder made, in other words, a speaking out. The"inscrutable face of a sphinx" is ordinarilyincongruous with a judicial or quasi-judicialperformance."To sum up 27. Therefore I am of the opinion that the impugned orderis liable to be quashed solely on the ground of failure to recordreasons as per the mandate of Section 416 of the Act. Accordinglythe impugned order dt.24.12.2008 is quashed with liberty to the firstrespondent to pass fresh orders as provided by Section 416 of the Actafter granting an opportunity of personal hearing to the petitioner.The learned counsel for the petitioner as well as the learnedAdditional Government Pleader for Pondicherry have agreed forconducting the personal hearing on 16.2.2009 at 10.30 a.m. by thefirst respondent in the chamber of the Municipal Commissioner.Accordingly the petitioner is directed to appear before the firstrespondent at 10.30 a.m. on 16.2.2009 for personal hearing. It ismade clear that the enquiry is in continuation of the proceedinginitiated by the first respondent and the petitioner is not entitledfor fresh notice. The first respondent is directed to consider theexplanation submitted by the petitioner and the evidence that maybeproduced in support of his case during the personal hearing and passfresh orders on merits and as per law as expeditiously as possibleand in any case on or before 6th March, 2009. https://hcservices.ecourts.gov.in/hcservices/

28.The Writ Petition is disposed of with the above direction.Consequently connected Miscellaneous Petition is closed. No costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarmraTo1.The Commissioner,Pondicherry Municipality,Pudhucherry-01.2.The Revenue Officer-I,Pondicherry Municipality,Puducherry-011 CC to the Senior Government Pleader, SR NO.45891 CC To Mr.V. Raghavachari, Advocate, SR NO.4546 Writ Petition No.1801 of 2009andM.P.No.1 of 2009rsy(co)pmk/2.2.2009.