V.Mohene v. The Commissioner
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 08.10.2020
CORAM
THE HONOURABLE MR. JUSTICE M.SATHYANARAYANAN AND THE HONOURABLE MRS. JUSTICE R.HEMALATHA WP.No.14333/2020 & WMP.No.17800/2020 V.Mohene ..
Petitioner
Versus
The Commissioner Oulgaret Municipality Government of Puducherry Oulgaret, Puducherry 605005.
.. Respondent Prayer:- Writ petition filed under Article 226 of the Constitution of India praying for issuance of a writ of certiorari calling for the records relating to impugned order vide Form B vide F.No.25-33/JE[1]/OM/2020-21 dated 08.09.2020 issued by the respondent and quash the same.
For Petitioner : Mr.E.Anbarasan For Respondent : Mr.J.Kumaran, AGP [Pondy]
ORDER
(1)By consent, the writ petition is taken up for final disposal and is disposed of by this order.
(2)The petitioner claims to be a law abiding citizen as well as the lawful owner of the property comprised in RS.No.157/1,2,3,4 and 158 situate at Thattanchavady Revenue Village, Oulgaret Municipality, Union Territory of Puducherry, admeasuring to an extent of 04-49-50 HAC. The petitioner would further state that he deveoped an approved layout and sold almost all plots to various individuals on various dates and most of the purchasers had also put up superstructures on the respective plots. (3)It is also stated by the petitioner that while doing so, he retained the front portion of the land which is facing the road comprised in RS.No.157/1,2 for his personal use and just opposite to the said land, there is a road and abutting the road, there is a water channel which belongs to the Local Body, viz., Oulgaret Municipality, comprised in S.No.105. According to the petitioner, he did not encroach upon the land belonging to the Local Body, more particularly, the water body. But, however to his shock and surprise, he was issued with Form - A
Show Cause Notice dated 17.08.2020 under Section 415[1] of the Pondicherry Municipalities Act, 1973 [Act 9 of 1973] for which, the petitioner has submitted a detailed response dated 24.08.2020 and it was also acknowledged by the Local Body. (4)The learned counsel for the petitioner has drawn the attention of this Court to the impugned Notice dated 08.09.2020 issued by the respondent - Municipality in Form-B under section 416[1] of the said Act and would submit that in terms of the said provision, it is obligatory on the part of the respondent to consider the content of the representation and pass appropriate orders and whereas, in the impugned notice, the response of the petitioner dated 24.08.2020 not even found a reference and the impugned Proceedings came to be passed in a standardised format and in the light of the fact that the said proceedings per se violates principles of natural justice, prays for interference.
(5) Per contra, Mr.J.Kumaran, learned Additional Government Pleader [Pondy] appearing for the respondent - Municipality would submit that after following the due process of law only, the impugned Notice came to be issued and hence, prays for dismissal of this writ petition.
(6)This Court has considered the rival submissions and also perused the materials placed before it.
(7)It is relevant to extract Section 416 of the Pondicherry Municipalities Act, 1973 [Act 9 of 1973]:- 416:Eviction of unauthorised occupants:- (1)If, after considering the cause, if any, shown by any person in pursuance of a notice under Section 115 and any evidence he may produce in support of the same and after giving him a reasonable opportunity of being heard, the Commissioner is satisfied that the Municipal Premises are in unauthorised occupation, the Commissioner may, on a date to be fixed for the purpose, make an order of eviction for reasons to be recorded therein directing that the Municipal premises shall be vacated by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the Municipal premises.
(2)If any person refuses or fails to comply with the order of eviction within thirtyfive days of the date of its publication under sub-section [1], the Commissioner or any other officer duly authorised by the Commissioner in this behalf may evict that
person from, and take possession of, the Municipal premises and may, for that purpose, use such force as may be necessary.''
(8)The petitioner, in response to the Notice dated 17.08.2020 issued by the respondent - Municipality under Section 415[1] of the Act, has submitted his response dated 24.08.2020 and thereafter, the respondent has passed the impugned Form B proceedings dated 08.09.2020. In the light of sub-section [1] of Section 416 of the Act, the response submitted by the petitioner to the earlier Notice dated 17.08.2020 under Section 415 of the Act, has to be given due consideration and however, a perusal of the impugned proceedings of the respondent - Municipality dated 08.09.2020 do not show the same. Hence, on the sole ground, the impugned Proceedings of the respondent - Municipality dated 08.09.2020 warrants interference. (9)In the result, the writ petition is partly allowed and the impugned proceedings of the respondent - Municipality dated 08.09.
2020 is set aside and the respondent - Municipality is directed to consider the representation of the petitioner dated 24.08.2020 on merits and in accordance with law and pass appropriate orders under Section 416[1] of the Act within a period of eight weeks from the date of receipt of a copy of this order and till such time, shall defer further decision as to the eviction of the petitioner from the land in question. No costs. Consequently, the connected miscellaneous petition is closed.
Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar AP To The Commissioner Oulgaret Municipality Government of Puducherry Oulgaret, Puducherry 605005.
+1 cc to The Government Pleader(Puducherry), Sr.No. 33462 WP.No.14333/2020 MP(CO) RMP(02/11/2020)