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TMI Blog1994 (7) TMI 365X X X X Extracts X X X X X X X X Extracts X X X X ..... ere threatening to remove the hoarding, the first respondent moved this Court with the writ petition praying for the issue of a writ of mandamus restraining the appellants from interfering with the hoarding put up in NH-45 Km 12/720 shown in the plan annexed thereto. The writ petition was filed on 5.2.1993. On the same day it was admitted and an interim injunction was granted. But according to the first respondent inspite of service of a letter by the counsel on the appellants informing them about the passing of the order of interim injunction on 5.2.1993 and inspite of service of the order on 6.2.1993, the appellants removed the hoarding. He filed Contempt Application No. 73 of 1993 for punishing them for disobedience of the order of the court. 3. The stand taken by the appellants was that the land in which the hoarding was erected belonged to the Defence Department and there was no permission granted by the Defence Department to the petitioner to erect any hoarding. According to them when they found the unauthorised hoarding they directed the removal thereof pursuant to Sub-section (3) of Section 5-A of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, as ame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been any permission by the State Government to erect a hoarding. Further, it is argued that under Section 5-A(3) of the Act, if it is a movable structure or fixture erected in the land, it can be removed without notice by the concerned authorities. Reliance is placed on the judgment of the Supreme Court in Sohan Lal v. Union of India , which was actually relied on by the learned Judge as one supporting the case of the first respondent herein. Learned Counsel has invited our attention to the judgment of the Calcutta High Court in Jnan Chand v. Jugal Kishore . 7. Per contra, it is contended by the first respondent that the property cannot be treated as a movable property and it is only an immovable property as the hoarding has been imbedded in the earth. According to him, the procedure prescribed under Section 5-A(2) should have been followed by the authorities even if the land belonged to them. It is also contended that when the permission has been granted by the State Government, it is not open to the appellants to straight way remove the hoarding but they will have to take action only against the State Government and adopt a proper procedure in consonance with the principles of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rious consideration whether in proceedings under Article 226 of the Constitution such a declaration ought to be made and restoration of the property to Jagannath be ordered. (Vide: paragraph 5) The eviction of Jagannath was in contravention of the express provisions of Section 3 of the Public Premises (Eviction) Act. His eviction, therefore, was illegal. He was entitled to be evicted in due course of law and a writ of mandamus could issue to or an order in the nature of mandamus could be made against the Union of India to restore possession of the property to Jagannath from which he had been evicted if the property was still in possession of the Union of India. The property in dispute, however, is in possession of the appellant. There is no evidence and no finding of the High Court that the appellant was in collusion with the Union of India or that he had knowledge that the eviction of Jagannath was illegal. Normally, a writ of mandamus does not issue to or an order in the nature of mandamus is not made against a private individual. Such an order is made against a person directing him to do some particular thing, specified in the order, which appertains to his office and is in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 3.11.1992. The letter merely refers to the application by the first respondent for permission to erect advertisement hoarding from KM. 11/7 to 15/4 of NH 45 at the locations mentioned therein. The Chief Engineer has recommended the grant of the said permission. On that basis, a note was put up to the concerned officials including the Minister and the permission was granted. The file does not disclose the consideration of the question whether the land in question belonged to the State Government or that it had any right to deal with the said land. It is also to be noted that the Government order passed by the State Government does not indicate anything to identify the particular locations in which the hoardings could be erected. The Government Order merely refers to the points in terms of mileage referring to Km. 12/230 Km. 11/770; Km. 12/720; Km. 12/700; Km. 12/770; Km. 12/650 and Km. 12/800. There is nothing in the order to show that to which particular part of the land the order related. Significantly no survey number is mentioned. Learned Counsel for the first respondent submits that along with the application he had filed detailed plans showing the locations and these plan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24th April and the company had regretted in writing about the inconvenience. 11. There is a specific plea in the above passages that an unauthorised hoarding was erected at the same place in April, 1992. The first respondent filed a reply affidavit in the Contempt Application. In the reply-affidavit, he has not chosen to deal with the above pleading made by the appellants. It is not stated by the first respondent in the said reply affidavit that the hoarding erected earlier was in a different place and not the same place, which is now, under dispute. Learned Counsel for the first respondent, however, contended that earlier the hoarding was put in a different place and that has nothing to do with the place now in question. We are unable to accept this contention in view of the fact that there is no reference to it by the first respondent in his reply affidavit filed in the contempt application. In the circumstances, the first respondent was duty bound to have brought to the notice of the State Government when he applied for permission to erect, the correspondence between him and the appellants and also the fact that the hoarding was removed by the appellants. Without doing so, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble structure or fixture has been erected, placed or raised, or any goods have been displayed or spread, or any cattle or other animal has been brought or kept on any public premises, in contravention of the provisions of Sub-section (1) by any person, the estate officer may by order, remove or cause to be removed without notice, such structure, fixture, goods, cattle or other animal as the case may be, from the public premises and recover the cost of such removal from such person as an arrear of land revenue. Section 5-A of the Act was introduced by Act 61 of 1980. Sub-sections (2) and (3) thereof were introduced by Act 35 of 1984. The section came into force on the 13th of November, 1984. A perusal of the section shows that it deals with (1) immovable structure or fixture; (2) movable structure or fixture; (3) displaying or speading any goods and (4) bringing keeping any cattle or other animal. Sub-section (2) deals with immovable structure or fixture. If any immovable structure or fixture is unauthorisedly erected on any public premises in contravention of the provisions of the sub-section action has to be taken in accordance with Sub-section (2), Sub-section (3) deals with m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is immoveable. Certain things such as a piece of land are in all circumstances immovable. Others such as trees attached to the ground are, so long as they are so attached immoveable; when the severance has been effected they become moveable. The passage extracted above itself contains the test to be applied. In the case referred to therein as reported in Sukry Kurdepa v. Goondakui (1872)6 Mad. H.C. 71, the learned Judge has stated that if a thing cannot change its place without injury to the quality by virtue of which it is, what it is, it is immovable. At page 22, the learned author dealing with the expression attached to the earth has stated as follows: The phrase attached to the earth occurs in the definition of immovable property in the General Clauses Act, and also in this Act Section 8 with reference to the legal incidents of immovable property which pass, without express mention, on transfer; and again in Section 108(h) with reference to things a lessee may remove. The present section (Section 3) defines the expression attached to the earth as including (a) things rooted in the earth such as trees, (b) things imbedded in the earth such as buildings and (c) things ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice or any other opportunity to the person, who has erected the structure or fixture unauthorisedly. 16. Learned Counsel for the first respondent contends that the doctrine of 'reading down' must be invoked in this case as respects Sub-section (3) of Section 5-A of the Act and that it will be in consonance with the accepted constitutional principle of natural justice that an opportunity must be given to any person when his rights are sought to be disturbed. In the context in which Sub-section (3) is introduced in the enactment it shows that the legislature has deliberately excluded the principle of natural justice. The section deals with unauthorised erection in a land which is a public premises and which belongs to public authorities. In such circumstances, if it is an immovable structure it will not only cause damage to the structure but also the land on which it is erected and therefore, a particular procedure is prescribed by the legislature under Sub-section (2). If it is movable, it will not cause any damage to the structure or the land by removing it. Therefore, the Act prescribes that when an unauthorised movable structure or fixture is erected, it can be remo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Jugal Kishore . The relevant test is prescribed in the following words: The test, in my view, is the object with which the machinery was affixed to the land and the manner in which it was affixed. If the mode of attachment was imbedding in the earth as in the case of walls and buildings or if the object of attachment was for the permanent beneficial enjoyment of the land to which it was attached then the property would be immovable property within the meaning of Section 3 of the Transfer of Property Act but not otherwise. Even if that test is applied here, there can be no doubt that the hoarding is only a movable property and not an immovable property. As admitted by counsel on both sides, the period for which permission is granted by the State Government is only one year, and the hoarding can be removed on the expiry of the period. Learned Counsel for the first respondent submits that it is renewable and normally renewals are granted automatically. Even then, it is only for a fixed period and the hoarding is to be removed after the expiry of that period. Applying the test laid down in the above judgment in Jnan Chand's case A.I.R. 1960 Cal. 331, we hold that the hoardi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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