A 'resume' of facts necessary and germane for the disposal of this application would run thus:
(i) The plaintiff filed the suit seeking the following reliefs:
"a) to declare that the plaintiff is the absolute owner of the suit schedule property and consequently grant a permanent injunction restraining the defendant, its men, agent or servant from in any manner disturbing the peaceful possession and enjoyment of the suit schedule property by the plaintiff;
b) to declare that the notice dated nil, signed on 10.8.2009 and affixed on the suit premises on 21.8.2009 by the defendant under Section 222 of the M.C.M.C.Act IV of 1919, is null and void."
(ii) The same plaintiff filed this application seeking the following prayer:
"to grant an ad interim injunction restraining the respondent/defendant its men, agent or servant from in any manner disturbing the peaceful possession and enjoyment of the schedule property by the applicant/plaintiff pending disposal of the above suit."
(iii) The respondent Corporation filed the counter affidavit, refuting and remonstrating, impugning and challenging the averments/allegations in the application.
2. Heard both sides.
3. The learned counsel for the applicant/plaintiff, by inviting the attention of this Court to the averments in the affidavit, accompanying the application as well as the plaint, would develop his argument to the effect that the plaintiff and his ancestors/forefathers have been in possession and enjoyment of the suit property for more than 100 years; holus-bolus, the Municipality affixed one notice, calling upon the plaintiff to vacate the premises described in the schedule of the plaint as though the premises absolutely belongs to the Municipality and the applicant/plainitff is nothing but an encroacher. Being aggrieved by and dis-satisfied with such an order, this suit has been filed.
4. The learned counsel for the applicant also, by placing reliance on the typed set of papers, would submit that earlier there were suits filed by the plaintiff's predecessor in title and they got decrees also and the Court also mandated that the Corporation was not expected to dispossess them otherwise in accordance with law. However, quite contrary to the mandates as well as the law, the Municipality is resorting to evict the plaintiff illegally, warranting interference by this Court.
5. By way of torpedoing and pulverising the arguements as put forth on the side of the plaintiff, the learned Standing counsel for the Municipality would put forth and set forth the following arguments;
(i) a cumulative reading of Sections 220, 221 and 222 of the Chennai City Municipal Corporation Act, 1919, would amply make the point clear that the Corporation has got the power to summarily evict or dispossess any encroacher if the person squats on the premises of the Corporation, despite notice having been served on him;
(ii) in this case, the notice was properly served by affixture and despite that the plaintiff continued to occupy the premises, whereupon it necessitated the Corporation to resort to evict the plaintiff, over which the plaintiff could have no cause of action.
6. At this juncture, I call up and recollect the Division Bench Judgement of this Court reported in 2006(4) CTC 483 CONSUMER ACTION GROUP, vs. THE STATE OF TAMIL NADU, certain excerpts from it would run thus:-
"32. . .
(xiv) The Corporation is directed to forthwith take steps to remove the encroachments on all busy streets like Ranganathan Street, Natesa Stree, Madley Road, etc.and the Commissioner of Police is directed to provide adequate police force at the disposal of the Corporation for the purpose of carrying out work of removal of encroachments.
(xv) No Civil Court shall entertain any suit or proceedings or application in respect of the action taken by the CMDA or Corporation in respect of the illegal construction and encroachments on roads and pavements. All pending and future petitions filed/to be filed against CMDA and the Corporation relating to the illegal and unauthorised construction of buildings and or encroachment, and the demolition notice shall be placed before the special bench to be nominated by the Chief Justice."
7. A plain reading of the said judgement would amply make the point clear that the menace of encroachments on the roads and the road margins have to be done away with summarily by the Corporation, and with that avowed object this Court in the said precedent ordered the Corporation to resort to action and according to the view of the Division Bench of this Court, the squatter or encroacher of the road or road margin is not entitled to any elaborate hearing, to the detriment of the public welfare.
8. The learned counsel for the Corporation, while interpreting the said decision of the Division Bench of this Court cited supra, would try to incorporate into it the amendment which was effected to Sections 220 as well as 222 of the Chennai City Municipal Corporation Act. He would submit that the words ". . . . . . . or any public place, the control of which is vested in the Corporation" are found incorporated, as per the Chennai City Municipal (Amendment) Act, 1936, and as per which, the Municipality is not duty bound to conduct an elaborate enquiry, and the squatters and encroachers should not be given an opportunity to defend themselves, to the detriment of the public welfare. He would also add that the provisions of the Tamil Nadu Public Premises(Eviction of unauthorised occupants) Act, 1975, are not applicable in the facts and circumstances of this case. According to him, the provisions of Sections 220 and 222 of the Chennai City Municipal Corporation Act may not be interpreted in such a manner that are applicable only in respect of roads and road margins, but those provisions could also be pressed into service even as against encroachers of any public place belonging to the Corporation and so far this case is concerned, the applicant/plaintiff is occupying a portion of an dumping yard and thereby, preventing the Corporation from undertaking ameliorative measures there. Hence, he implores and entreats, appeals and prays that this application might be dismissed.
9. The learned counsel for the Corporation also would cite the following various other decisions in this regard.
(i) 1995(II) CTC 26 SENGALI AND 20 OTHERS VS. THE EXECUTIVE OFFICER, METTUR TOWN COMMITTEES, METTUR DAM;
(ii) 2005(2) CTC 741 RAMARAJU VS. THE STATE OF TAMIL NADU;
10. A plain reading of the above decisions would clearly highlight and spotlight the fact that those decisions are relating to road margins and roads and not in respect of public places belonging to the Municipality in general. The sum and substance, the gist and kernal of the decisions, which emerged so far, would clearly indicate and display that no elaborate enquiry is contemplated in respect of removal of encroachments of road margins and roads, projections on roads, but in respect of public places in general, enquiry adhering to the principles of natural justice is necessary.
11. The learned counsel for the plaintiff would submit that in view of the fact that the plaintiff and his ancestors have been in possession and enjoyment of the property for more than 100 years, they acquired prescriptive title and that they are entitled to get a declaration from this Court regarding their status and they are not even liable to be proceeded against under the Tamil Nadu Public premises(Eviction of Unauthorised Occupants) Act.
12.This Court is not going to decide as to the maintainability of the suit. No doubt, the suit itself is for declaration of the status of the plaintiff over the suit property and at the appropriate stage that issue would be taken up and decided. Now, this Court has to decide as to whether the Corporation was justified in attempting to evict summarily the plaintiff, after giving a short notice, as found set out in the plaint. Sections 220, 221 and 222 of the Chennai City Municipal Corporation ACt are extracted hereunder for ready reference:
"Sec.220.Prohibition against obstructions in streets-No one shall build any wall or erect any fence or other obstruction or projection or make any encroachment in or over any street or any public place, the control of which is vested in the corporation except as hereinafter provided.
Sec.221.Prohibition and regulation of doors, ground-floor windows and bars opening outwards (1) No door, gate, bar or ground-floor window shall without a licence from the commissioner be hung or placed so as to open outwards upon any street.
(2) The commissioner may by notice require the owner of such door, gate, bar or window to alter it so that no part thereof when open shall project over the street.
222.Removal of encroachments-(1) The commissioner may by notice require the owner or occupier of any premises to remove or alter any projection, encroachment or obstruction (other than a door, gate, bar, or ground-floor window) situated against or in front of such premises and in or, over, any street or any public place, the control of which is vested in the corporation.
(2) If the owner or occupier of the premises proves that any such projection, encroachment or obstruction has existed for a period sufficient under the law of limitation to give him a perspective title or where such period is less than thirty years, for a period of thirty years or that it was erected with the consent of any municipal authority duly empowered in that behalf, and that the period, if any, for which the consent is valid has not expired, the corporation shall make reasonable compensation to every person who suffers damage by the removal or alteration of the same."
13. These provisions have to be read in conjunction with the Tamil Nadu Public Premises (Eviction of Unauthorised occupants) Act, 1975 and as such, the following definitions in the said Act are extracted hereunder:
"2(d) "premises" means any land or any building or hut or part of a building or hut and includes,-
(i) gardens, grounds and outhouses, if any appertaining to such building or hut or part of a building or hut; and
(ii) any fittings affixed to such building or hut or part of a building or hut for the more beneficial enjoyment thereof;
(e) "public premises" means any premises belonging to or taken on lease or requisitioned by, or on behalf of, the Government, and includes-
(1) any premises belonging to, or taken on lease by, or on behalf of-
(i) any company as defined in
section 3 of the Companies Act, 1956 (Central Act 1 of 1956) in which not less than fifty-one per cent of the paid-up share capital is held by the Government; and
(ii) any corporation (not being a company as defined in
section 3 of the Companies Act 1956(Central Act 1 of 1956) or a local authority) established by or under any law and owned or controlled by the Government; and (2) any premises belonging to or vested in, a local authority or any Bord constituted under any law;
(g) "unauthorised occupation", in relation to any public premises, means the occupation by any person of the public premises without authority for such occupation and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever."
14. A conjunctive reading of the above definitions particularly and the whole Act, namely, the Tamil Nadu Public Premises(Eviction of Unauthorised Occupants) Act, 1975 in general, with the aforesaid three Sections of the Chennai City Municipal Corporation Act, would leave no doubt in the mind of this Court that the Corporation of Chennai is bound by the provisions of the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act 1975, and it has to follow the provisions of the said Act for evicting an unauthorised occupant of its public premises, except road and road margins and for removal of other projections as contemplated in the Division Bench judgement of this Court.
15. At this juncture, my mind is reminiscent and redolent of the maxim 'Jura naturae sunt immutabilia', which means the laws of nature are unchangeable.
16. If, as canvassed by the learned counsel for the Corporation, even in respect of places like dumping yard, where the plaintiff is admittedly occupying, the summary procedure could be adopted, so to say without conducting any enquiry, then the right of the citizens would be jeopardised. If the same yardstick is applied to the other occupants of the Municipal premises, there will be insecurity among them. The Tamil Nadu Public Premises(Eviction of Unauthorised Occupants) Act, 1975 is a wholesome Act, enabling the authorities to take steps to evict the unauthorised occupants from the public premises and the Corporation cannot attempt to bypass it under one pretext or the other and more specifically by relying on the precedents of this Court.
17. The term "any public place" should be read and understood applying the principle of garden genesis as the words preceding the said term are "any street" and the heading of Section 220 of the Act i.e "Prohibition against obstructions in Streets" should also be taken into account in understanding the true purport of the words "any public place" which are brought into the statute both by way of an ill drafted amendment Act.
18. To the risk of repetition, without being tautalogous, I would like to reiterate that this Court never intended, in any of its judgements, that persons like the plaintiff, who are in occupation of the place like dumping yard are also could be summarily thrown away without any enquiry as per the Tamil Nadu Public Premises(Eviction of Unauthorised Occupants) Act, 1975. There is nothing to indicate as per Sections 220, 221 and 222, that the Special enactment, namely, the Tamil Nadu Public Premises(Eviction of Unauthorised Occupants) Act, 1975 is excluded from its application for removal of encroachments contemplated therein.
18. I also recollect the famous maxim 'Jus superveniens auctori accrescit successori', which means an additional or enhanced right for the possessor accrues to the successor. As such, there is ex facie and prima facie case on the part of the plaintiff to seek injunction.
19. I make it clear that by my observation I do not in any way countenance or uphold that the plaintiff has got title over the property, but it has to be dealt with elaborately at the appropriate stage.
20. Regarding the maintainability of the suit is concerned, I would like to observe that if there is any plea raised on the side of the Corporation, that would be decided at the appropriate stage. Accordingly, I am of the view that injunction already granted has to be made absolute, pending disposal of the suit.
21. At this juncture, the learned counsel for the Corporation would make an extempore submission that as per the order of this Court, the plaintiff is having an improvised superstructure there and he shall not be permitted to put up a pucca construction.
22. Whereas, the learned counsel for the plaintiff would submit that just before such high handed attempt of eviction by the Municipality, the plaintiff was having a pucca old tiled house and that he might be permitted to raise the same.
23. I have to strike a balance between the two in order to keep the order of this Court on an even keel. If the plaintiff, pending serious dispute between the Municipality and himself, raise a pucca construction once again so as to restore status quo ante, it would complicate the issue. However, I could see considerable force in the submission made by the learned counsel for the plaintiff that the improvised superstructure now in existence is nothing but a tent, without any privacy and as such, I would like to observe that in order to have such privacy, the plaintiff could have some more improvised structure for occupation, without putting up any permanent superstructure made of brick and mortar and accordingly, the matter is disposed of. I would make it clear that the plaintiff should not put up any brick built construction in the place in dispute, pending disposal of the suit.
Msk