ORDER
P.D. Dinakaran, J.
1. Petitioner seeks to issue a Writ of Mandamus directing respondents 1 to 4 herein to deliver the possession of door No. 34, Maroof Sahib Street, Chennai-600 002 to the petitioner herein.
2. According to the learned counsel for the petitioner, the petitioner had let out the impugned premises to one Sikander on 27-3-1997. After coming across several complaints against him from the people of the locality, the petitioner requested the said Sikander to vacate the premises. But the said Sikander and another S.A. Basha were present in the said building when the petitioner visited the premises on 3-4-1997. Even though they originally agreed to vacate on 3-4-1997, they refused to do so and started to threaten the petitioner and give aggressive warnings to him.
3. It is also stated that the petitioner issued a lawyer's notice on 8-4-1997 calling upon the said Sikander for delivery of possession and thereafter lodged a complaint to the police on 21-11-1997 against Sikander and S.A. Basha and requested the assistance of the police to assist him in taking possession of the premises.
4. The petitioner contends that to his shock and surprise, the petitioner was served with a notice on 4-3-1998 stating that the impugned premises had been taken possession of by the Government under a notification as the same was used for alleged unlawful and illegal activities.
5. Learned counsel for the petitioner contended that the petitioner is in no way connected with any unlawful association, muchless 'A1 Umma', as alleged by the respondents in their counter.
6. According to Mr. K.M, Krishna Raju, learned counsel for the petitioner taking possession of the impugned premises without any authority of law is in violation of Article 300-A of the Constitution of India and it also violates the principles of natural justice. In any event, it is contended that the respondents are not entitled to keep the possession under impugned proceedings indefinitely any more and it would be arbitrary, unreasonable and unjustified. Hence the above writ petition.
7. Elaborating the above contention Mr. K.M. Krishna Raju, learned counsel for the petitioner placing reliance on the decision in Jilubhai Nanbhai Khachar v. State of Gujarat : AIR1995SC142 , contends that abroad and liberal construction of Article 300-A should be given effect to in favour of the petitioner. It is also contended that execution of the order is a direction that the respondents ate not entitled to deprive the valid right of possession of the property with regard to the impugned order. Taking possession of the impugned property without any authority of law, muchless any notice to the petitioner before doing so not only violates Article 300-A of Constitution of India, but also infringes the basic principles of natural justice.
8. Mr. Krishna Raju, learned counsel for the petitioner very emphatically contends that the right of property protected under Article 300-A of the Constitution of India includes right of possession. Any interference with such right of possession without any authority of law is held to be illegal and therefore, the petitioner is entitled for return of the property in question.
9. It is also contended that in the absence of any mentioning about the public interest in the notice served on the. petitioner on 4-3-1998, the respondents are not entitled to claim that the impugned deprivation of possession of the property from the petitioner is in the public interest. He also contends that the right of property is protected under Article 300-A of Constitution of India and therefore, an extended meaning to protect the right of possession should be given. A denial of such right in any manner by the respondents as in the instant case, entitles the petitioner to seek the relief as prayed for.
10. Per contra, the respondents in their counter-affidavit stated that by notification dated 26-2-1998 Issued under Sub-section (1) of Section 17-A Criminal Law Amendment Act, 1908, the impugned property and two other properties were notified as the properties used for the purpose of unlawful association called 'A1 Umma' and therefore, If the petitioner is aggrieved by such notification, he could appeal against such notification before the Chief Judge, Small Cause Court, Chennai for appropriate relief as provided for under Section 17A(2A) of the Criminal Law Amendment Act (hereinafter called as Act). The respondents in their counteraffidavit have brought the details relating to the facts and circumstances that required the respondents to take a decision to notify the impugned property under Sub-section (1) of Section 17-A of the Act as referred above.
11. In the counter-affidavit, it is stated that even though the first and second floor of the premises was rented out to Sikander, it Is found that a hole measuring about 0.5 meter diameter wide enough for a person to go to the outer room, was made out on the first floor on the wall which separated the two rooms in the ground floor and accordingly, the ground floor was also used by the unlawful association called 'A1 Umma'. Even though the keys of the ground floor were with the petitioner, the entire building viz., ground floor and first floor were used for unlawful activities. It is also stated that the premises was alleged to be used by the members of the 'A1 Umma' association and the occurrence was registered in Crime No. 294/98 for the offence punishable under Sections 4 and 5 of Explosive Substances Act. It is further stated that Sections 17(A) and 17(A)(2) of the Criminal Law Amendment Act do not contemplate any issuance of show cause notice before issuing such notification and therefore, the contention of the learned counsel for the petitioner that taking possession of the impugned premises by the respondents from the petitioner is illegal for want of notice prior to the notification is untenable. According to the respondents, from the facts and circumstances of the case, neither the fact of infringement under Article 300-A of the Constitution of India nor the violation of principles of natural justice is established.
12. I have bestowed my careful consideration to the submissions of the either side.
13. In my considered opinion, the principles laid down by the Apex Court in Jilubhai Nanbhai v. State of Gujarat : AIR1995SC142 are not in any way disputed by the learned Special Government Pleader appearing for the respondents. But one cannot forget that each case must be decided as it arises on its own facts, as observed in the same decision by the Apex Court. As held by the Apex Court in State Bank of West Bengal v. Subodh Gopal Bose : [1954]1SCR587 , no cut and dry test can be formulated as to whether in a given case the owner is deprived of his property within the meaning of Article 31 of the Constitutional rights. Deprivation of right of one's property, which no doubt includes the right of possession over the property, should be specifically recovered for acquisition and not for any and every kind of deprivation. Such a proposition being well established by the Apex Court, I do not find any merit in the petitioner's contention that taking possession of the impugned property by the respondents in any way attracts Article 300-A of the Constitution of India by violation of principles of natural justice.
14. In this regard, I was obliged to refer the object of the Act. The Criminal Law Amendment Act is entitled to provide for mere speedy trial of certain offences and also prohibits any danger to public peace. Since the very Act was enacted for a special and specific object, the statutory right conferred under Article 300-A has to be tested with reference to the provisions of Criminal Law Amendment Act, 1908.
15. The Apex Court has repeatedly held that as far as possible, the most liberal construction of legislative entry must be given so that it may have the widest amplitude to advance the intention of the legislature but not otherwise. The broad and liberal spirit should inspire to advance the object of the legislature in the instant case viz., to prohibit the association of dangers to public peace. When the State proposes to prohibit any danger to the public peace, it cannot be complained either under violation of Article 300-A of the Constitution of India or the principles of natural justice, expecting to issue a show cause notice before issuing such notification. Otherwise, the very object of the legislature intended under the Criminal Law Amendment Act will be defeated.
16. I am not able to appreciate the contention of the learned counsel for the petitioner that the petitioner has been deprived of the valuable right of possession without any authority of law. In the instant case, notification has been issued by exercising the power under Sub-section (1) of Section 17-A of the Criminal Law Amendment Act. When such power to issue the notification is traceable under the statute book, the contention of the learned counsel for the petitioner to deprive the right by taking possession of the property in question, without any authority of law is totally untenable under law.
17. The said notification, which was served on the petitioner only on 4-3-1998, is only a consequential order issued in pursuance of the notification dated 26-2-1998 by exercising the power under Sub-section (1) of Section 17-A of the Act. Therefore, the contention that the impugned notification or the consequential intimation to the petitioner about taking possession of the property by the respondents deprives or violates the rights of the petitioner conferred under Article 300-A of the Constitution of India without any rule or statutory order having force of law is not correct. In any event, the alleged deprivation of right of possession cannot be amplified to acquisition or requisition of the property. What is intended by the respondent by the notification is only to prevent or prohibit danger to public peace and not to acquire or require the property in question. Consequently, the contention of the learned counsel for the petitioner that the exclusive right of possession and enjoyment of the petitioner does not arise in the instant case inasmuch as such an action of the authority is permissible in the larger interest of public under the social contract theory whenever the emergency requires such impugned dispossession of property of the petitioner by exercising the power under the statute under Sub-section (1) Section 17-A of the Criminal Law Amendment Act. Hence, I do not find any illegality by the impugned acts of the respondents.
18. That apart, the contentions of the learned counsel for the petitioner that the petitioner is entitled for notice before taking possession as he is the owner of the property is also not tenable in view of Sub-section (3) Section 17-A of the Act. A notified place, possession of which is taken under Sub-section (2) shall be deemed to remain in the possession of Government so long as the notification under Sub-section (1) in respect thereof remains in force. Therefore, the moment the respondents have taken a decision to notify the impugned property under Sub-section (1) Section 17-A of the Act, the taking of the possession of the property is deemed to be given effect to and such taking of possession by the Government remains to continue as long as the notification under Sub-section (1) Section 17-A of the Act remains in force. However, under the scheme of the Act, it is not that the petitioner has no remedy at all. If possession has been taken and the property has been notified without proper appreciation of the facts and circumstances of the case, the petitioner has been given a remedial measure to agitate against such notification under Sub-section (2-A) of Section 17-A of the Act, which would enable him to satisfy the authority provided for under the Act for the purpose to show that possession of the premises taken by the Government is not required to prohibit the danger to the public peace. On satisfying the authority concerned, the property is entitled to be released by cancelling the notification on a declaration by the authority provided for under the Act. Therefore, the question of deciding whether it is intended to prohibit danger to the public peace or otherwise could not be entertained under Article 226 of the Constitution of India and in my considered view, it is only a matter of evidence before the concerned authority. It is only in the interest of such aggrieved person that the property should not be kept under possession indefinitely and to enable him to approach the competent authority within 30 days from the date of such notification published, which action justified the acts of the respondents to achieve the object of the legislature to provide more speedy trial of certain offences or to provide speedy remedy to the aggrieved person as the case may be. Since in the instant case, the petitioner was served with a notice of taking possession as early as on 4-3-1998, he could have sought for appropriate remedy under Sub-section (2-A) of Section 17-A of the Act. Therefore, when the respondents never intended to acquire or require the property in question, then the impugned action of the respondents is an offence under Article 300-A of the Constitution of India and is in violation of the principles of natural justice and is also not tenable under law.
19. It is therefore, open for the petitioner to move the competent authority for appropriate relief and revoke (invoke?) the remedial measure available to him under the inbuilt provisions of the very section. In any event, in view of the provision under Sub-section (3) of Section 17-A of the Act that when possession is taken under Sub-section (2), it shall be deemed to remain in possession of the Government so long as the notification under Sub-section (1) in respect thereof remains in force, it may not be proper for this Court to grant the relief as prayed for.
20. However, in the interests of justice, I am of the considered opinion that the time provided to enable the aggrieved party to move the authority within 30 days from the date of notification is not intended as a limitation to exercise his right, as the right over one's property with regard to the possession of the property will continue forever and it cannot be limited under Sub-section (2-A) Section 17-A of the Act. As the period prescribed under Sub-section (2-A) Section 17-A of the Act is 30 days to agitate against the notification is only for the purpose of giving remedial measure to the aggrieved party and not creating a bar with regard to its relief. Therefore, while finding no merits in the writ petition and dismissing the same, the petitioner is given liberty to approach the competent authority for appropriate relief.
21. The writ petition is dismissed with the above direction. No costs. Consequently, W.M.P.No. 19381 of 1998 is also dismissed.