T.Murugesapandian v. The Divisional Manager

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11.12.2017

CORAM:

THE HONOURABLE MR.JUSTICE M.VENUGOPAL AND THE HONOURABLE MRS.JUSTICE R.THARANI W.P.(MD)No.22645 of 2017 and W.M.P.(MD)No.18944 of 2017 T.Murugesapandian : Petitioner Vs.

The Divisional Manager, Southern Railway, Divisional Office, Works Branch, Madurai.

: Respondent PRAYER:

Writ Petition is filed under Article 226 of the Constitution of India praying this Court for issuance of a Writ of Certiorarified Mandamus, to call for the records of the Respondent's proceeding No.U/W274/MDU/ADEN/TEN, dated 27.11.2017 and quash the same as devoid of merits and consequently, directing the Respondent not to interfere in the peaceful worship of the Lord Railadi Anantha Vinayagar Temple, Kurumbur, Tiruchendur Taluk, Tuticorin District situated in Survey No.330. For Petitioner : Mr.G.Sundaram ******

O R D E R

************* [Order of the Court was made by M.VENUGOPAL, J.] The Petitioner has come forward with the present Writ Petition seeking for the issuance of a Writ of Certiorarified Mandamus, to call for the records of the Respondent's proceeding No.U/W274/MDU/ADEN/TEN, dated 27.11.2017, quash the same as devoid of merits and consequently, direct the Respondent not to interfere in the peaceful worship of the Lord Railadi Anantha Vinayagar

Temple, Kurumbur, Tiruchendur Taluk, Tuticorin District, situated in Survey No.330.

2. Heard the Learned Counsel for the Petitioner.

3. To avoid an avoidable delay, notice to the Respondent/Southern Railway is dispensed with, to prevent an aberration of justice.

4. According to the Petitioner, totally, 25,000 people are residing in his Village and they are doing agricultural activities and carrying on business activities. He is one of the Administrators of the Lord Railadi Anantha Vinayagar Temple at Kurumbur, which was consecrated before 150 years ago. For the said Lord Vinayagar, daily poojas are performed everyday three times. Regularly, 1,500 people are worshipping in the said Temple and the passengers, who are using the Kurumbur Railway Station, are also worshipping in the Temple. In short, the people belonging to 13 Villages are worshipping in the said Temple.

5. The grievance of the Petitioner is that the Estate Officer of the Respondent/Southern Railway had issued the Form-A notice dated 04.11.2017 [issued under Section 4(1) of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971] and directed him to appear on 18.11.2017, for which, the Petitioner had offered his explanation on 18.11.2017. However, the Respondent, without considering the explanation of the Petitioner dated 18.11.2017, issued the impugned notice/order dated 27.11.2017, mentioning that the Writ Petitioner, as Ex-Municipal Councilor of Nalumavadi Village, Kurumbur (Post), Tiruchendur Taluk, Tuticorin District, has encroached Railway land to an extent of 9.61 Square Metre, by constructing a Temple building at Kurumbur Railway Station, Kurumbur.

As a matter of fact, the Petitioner was required to vacate the occupation of the premises/Temple, within 15 days from the date of publication of the notice/order dated 27.11.2017. Further, the Petitioner was informed that if the Temple is not vacated from the encroached Railway land as stated supra, the Petitioner and all others concerned are liable to be evicted from the said premises, if need be, by the use of such force, as may be necessary.

6. The core contention projected on the side of the Petitioner is that the Petitioner was not provided with an opportunity of personal hearing before passing the impugned notice/order dated 27.11.2017. Therefore, there is a negation of the Principles of Natural Justice.

7. Admittedly, it is not in dispute that the land measuring an extent of 9.61 Square Metre belongs to the Railway.

8. It comes to be known that the Petitioner had addressed a representation/remarks/objections/explanation dated 18.11.2017, wherein he had inter alia stated that before commencement of railway journey, the passengers would pray for their happy journey and also that in Tamil Nadu, for example, at Madurai, Tirunelveli, Tiruchirappalli and Chennai big Cities, in the Railways, there are Vinayagar Temples and since the Temple in question is worshipped by the Village people, passengers and Railway officials for the past 150 years and also that the said Temple is not causing a hindrance to the common people of 13 Villages, the proposed removal of encroachment of the Temple is to be dropped. For the afore-stated representation of the Petitioner dated 18.11.

2017, the Respondent/Southern Railway had not given any personal hearing, so as to enable the Petitioner to represent his point of view(s). The Respondent/Estate Officer of the Southern Railway, it appears that, till date, has not acted on the representation of the Petitioner. However, without considering the same, the Respondent had issued the impugned notice/order dated 27.11.2017.

9. In view of the fact that the Petitioner's representation/remarks/objections/explanation dated 18.11.

2017 is pending for consideration before the Respondent and the same is not yet disposed of till date and also taking note of the fact that notice under Section 4 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, should contain the description of the public premises clearly so that all concerned should know what particular premises the notice relates to and also considering the fact that the ingredients of Section 4(2) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, is a mandatory one and not a directory in nature, and even though the Act enjoins 'summary procedure' for evicting an unauthorized occupant/tenant or sub-tenant, as the case may be, this Court, based on equity, fair play, justice and good conscience, simpliciter, directs the Respondent to look into the representation/remarks/objections/explanation of the Petitioner dated 18.

11.2017, within a period of one week from the date of receipt of copy of this order. If the Estate Officer of the Respondent/Southern Railway finds any substance in the objections/remarks/representation/explanation of the Petitioner dated 18.11.2017, he is to pass a final order on merits and in accordance with law, within a period of four weeks thereafter. It cannot be gainsaid that the Estate Officer of the Respondent/Southern Railway shall pass a reasoned speaking order on merits and also provide an opportunity of personal hearing to the Petitioner and he is directed to advert to all the Factual and Legal pleas to be raised by the Petitioner, by answering the same at the time of passing the orders.

The Petitioner is directed to lend his unstinted co-operation and assistance to the Respondent/Southern Railway, enabling him to pass final orders in the subject matter in issue, of course, within the time determined by this Court.

10. With the aforesaid observation(s)/direction(s), the Writ Petition stands disposed of. No costs. Consequently, the connected Miscellaneous Petition is closed.

Sd/- Assistant Registrar(C.O.) /True Copy/ Sub Assistant Registrar.

To The Divisional Manager, Southern Railway, Divisional Office, Works Branch, Madurai.

+1CC to Mr.G.Sundaram, Advocate, SR.No. 92001 Order made in W.P.(MD)No.22645 of 2017 Dated: 11.12.2017 SML AM/SV MMS/SAR 1/19.12.2017/4P/3C