GIRIJA MISHRA Vs. BERHAMPUR MUNICIPALITY

JUDGEMENT

(1.) The petitioner was asked by Annexure-1 to vacate the encroached portion of the premises within 24 hours from the receipt of the notice which is dated 21-5-88. He thereupon approached this Court by filing this petition on 28-5-88, as according to him, the authorities wanted to proceed with the demolition.

(2.) . Validity of Annexure 1 is assailed on the ground that no prior notice was issued to the petitioner asking him to show cause as to why he should not vacate the premises in question. Annexure 1 is, therefore, violative of natural justice.

(3.) Shri Murty appearing for the Municipality brings to our notice S. 264(1) of the Orissa Municipal Act, 1950, under which the impugned notice was issued That Section states that the Executive Officer may by notice require the owner or occupier of any premises to remove encroachment. This Section does not require giving of any prior notice of show cause. Even so, as presently advised, we are of the view that reasonable opportunity to show cause has to be given to an encroacher before he is asked to remove the encroachment. Silence of S. 254 in this regard may not be conclusive in view of what was held in S. L. Kapoor v. Jag Mohan, AIR 1981 SC 136 in para 10 of which it was observed that it is not always a necessary inference that if opportunity is not provided in a Section, opportunity may not be treated to have been excluded. This view had been taken earlier by the Constitution Bench in Mohinder Singh Gill v. The Chief Election Commissioner, AIR 1978 SC 851 in which it was stated that the silence of a statute in this regard has no exclusionary effect except where it flows from necessary implication. As presently advised, we should also state that we do not read exclusion of natural justice by necessary implication in all cases coming within the fold of S. 254 though it may be that in special circumstances previous notice may be dispensed with. We have said so keeping in view what was held by a Constitution Bench in Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180.