North Madras Middle School v. The Chairman, Tamil Nadu Slum Clearance Board, Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 25.04.2008CORAM:THE HON'BLE MR.JUSTICE P.JYOTHIMANIW.P. No.12411 of 1998North Madras Middle Schoolrep. By its Manager & CorrespondentD.Amarjothi..Petitionervs.1. The Chairman, Tamil Nadu Slum Clearance Board, Chennai-5.2. The Secretary, Revenue Dept., Fort St. George, Chennai-9.3. The Member/Secretary, CMDA, Chennai.4. The Commissioner, Corporation of Chennai, Chennai.5. The Director, Elementary School Education, Chennai. ..Respondents(R2 to R5 impleaded as per orderdated 25.4.2008 in WPMP No.17372/2006) Prayer : Writ petition filed under Article 226 of the Constitutionof India praying to issue a Writ of Certiorari praying for the relief stated therein.For petitioners : Mr.C.Selvaraj Senior Counsel for Mr.P.Balasubramanian https://hcservices.ecourts.gov.in/hcservices/ For respondents : Mrs.D.Geetha, AGP for R2 & R4 Mr.Y.Bhuvanesh Kumar for R.1 Mr.G.T.Subramanian for R.5 Mr.C.Kathiravan for R3 (CMDA)O R D E RThe writ petition is filed seeking to issue a Writ of Certioraricalling for the records pertaining to the order passed by the respondentin 127/B1(A)/Ea.Aa/Vu.Thi.4.H/III dated 5.9.1986 and the consequentialorder in Na.Ko.No.725/98-B, EO/III dated 16.6.1998 andSe.Mu.Ka.No.21506/96/E3/ dated 2.7.1998 and quash the same.2. The petitioner challenges the order of the Slum Clearance Boarddated 2.7.1998, by which the Slum Clearance Board (hereinafter referredto as 'the Board') has cancelled the assignment made in respect of thepetitioner-School in the year 1994. The cancellation order is passed onthe basis that the petitioner having got assignment of the property forthe purpose of running the School, has put up eight shops withoutobtaining permission from the Board and in violation of the conditionsprescribed by the CMDA, which has been subsequently impleaded as a partyin this proceeding. 3. It is the case of the petitioner that the petitioner has startedthe School in R.S.No.779/23 (Part) Perambur Village, in a premises whichwas leased out in her favour by the Collector of Madras in hisproceedings dated 13.11.1951, originally for a period of three years andthe specific purpose of the lease was to run the School. The annualrent for the premises was also reduced by the Government subsequently inthe year 1954 from Rs.44 to Rs.1/-. The petitioner has developed theSchool and according to her, there are 900 students studying in theSchool as on today. At the time when the lease was granted, it was alow-lying area and the petitioner has spent enormous amount for thepurpose of levelling the land. The extent in which the School issituated is 12 grounds in R.S.No.779/23 (Part) Perambur Village. Thepetitioner has applied to the Government for assignment of the land andultimately, the Government, by order dated 19.6.1975, has grantedpermission to the petitioner to continue to run the School in the areaoccupied by her. Subsequently, by the proceedings dated 15.3.1979, theCollector of Madras has assigned the property in favour of thepetitioner to run the School with certain conditions. 4. The petitioner's case is that in the mean time, the nearby hutdwellers have started encroaching the land belonging to the School,about which, an enquiry was conducted by the Special Deputy Collectorstating that one Association is in unauthorised occupation of the placeallotted to the petitioner by the Collector in 1975. On conducting anenquiry by the Madras Metropolitan Development Authority which was inexistence at that time, there was a finding that encroachment of the https://hcservices.ecourts.gov.in/hcservices/ land has been made by outsiders, affecting the petitioner in running theSchool. The authorities having recommended the assignment of the land infavour of the petitioner, have also recommended for eviction ofunauthorised slum dwellers who have occupied the land. In the meantime,the Board has fixed the value of the land as Rs.6,82,500/- and directedthe petitioner to pay in instalment at Rs.7,746/- per month. Thepetitioner, has, in fact made a representation to the Government thatthe Board has no power to demand such land cost. In the mean time, theBoard has threatened to evict the petitioner from that place. Thefixation of the value of the land by the Board is on a commercial basis,which is not applicable to the petitioner, who is running a School. Thepetitioner School is an aided School, the staff grant being met by theGovernment, and the petitioner has to meet the expenses for themaintenance of the School and other expenses for running the School andit was under these circumstances, according to the petitioner, that theyput up eight small shops for the purpose of earning amount by way ofrent for maintaining the School. Hence, the Board has issued a showcause notice on 16.6.1998 to remove the shops and to hand overpossession of the property to the Board. According to the petitioner,the Board has no jurisdiction to issue such a notice. Since accordingto the petitioner this is a land allotted to them by the Government byway of assignment, the duty of the Board was only to remove theunauthorised encroachers, who are slum dwellers, from the lands assigned.5. The notice referred to in the impugned order relates to theproceedings under Rule 4 of the Tamil Nadu Slum Clearance Board (Controland Management of Properties) Rules, 1971, in respect of which, finalorder was passed by the Revenue Officer, against which a statutoryappeal has been filed under Rule 9 of the said Rules, which is pendingbefore the Chairman of the Slum Clearance Board. Pending such appeal,the present impugned order is passed cancelling the assignment grantedto the petitioner. 6. The contention of the learned Senior Counsel Mr.C.Selvaraj isthat the assignment of this land was made by the Government as early ason 13.11.1951, of course, specifically for the purpose of running theSchool and the assignment is in the form of a 'grant' and hence, theSlum Clearance Board has no authority to object to it. According to thelearned Senior Counsel, the Board in its proceedings dated 23.11.1973has issued no objection for the purpose of the proposed assignment,which is actually in the form of reassignment in the year 1973 forrunning the School. Further, the Board by treating the petitioner as anencroacher, has proceeded to take action under the Act as well as theRules framed thereunder by issuing the order dated 16.6.1998, directingthe petitioner to remove all the superstructures in the land and handover the land to the Board. Against the said order, an appeal has beenfiled to the Chairman of the Board. Since such an appeal is not disposed https://hcservices.ecourts.gov.in/hcservices/ of, and it is not open to the respondents to issue the present impugnedorder, cancelling the assignment. Otherwise, the contention of thelearned Senior Counsel is that inasmuch as it is the Government whichhas granted the assignment, it is not open to the Board to cancel thesame and the Board has no jurisdiction at all.7. In the counter affidavit filed on behalf of the Board, it isstated that by virtue of G.O.Ms.No.1117 dated 27.6.1979, the Governmenthas decided to make improvement in the slum area occupied by the slumdwellers with the aid of World Bank and the land in occupation by thepetitioner which is in Erunkancherri area formed part of the Scheme. Itis the case of the respondent that the land comprised in Plot No.200 wastransferred to the Board for the petitioner to have the benefit of theMadras Urban Development Scheme and thereafter, by Board's proceedingsdated 5.9.1986, a fresh allotment was made to the petitioner-School forthe purpose of running the School on the basis of the sale considerationamount of Rs.6,82,400/- for the extent of 22.75 ares. However, thepetitioner has constructed eight shops and has let them out to thirdparties for commercial purposes, which is in defiance of the conditionsof the lease-cum-sale agreement. It is the case of the Board that thepetitioner having accepted the allotment, is bound by various conditionsimposed therein. It is also denied that the cost has been fixed basedon the commercial value. It is also stated that as against the impugnedorder dated 2.7.1998, the petitioner has also preferred an appeal to theGovernment. It is specifically stated that the petitioner havingproceeded to avail the statutory remedy by filing an appeal to theGovernment, the writ petition is not maintainable. 8. I have heard the learned counsel on either side and perused thematerials placed on record.9. Even though on the face of the record, it is seen that theoriginal grant in respect of the petitioner School has been given onlease basis in the name of one M.P.Devadoss, the father of thepetitioner, for the purpose of running the School and by proceedingsdated 23.11.1973, the Board has granted no objection for the proposedassignment of the land for school purposes in favour of the petitioner,and the Superintending Engineer of the Board has ultimately cancelledthe no objection granted by the Board, while the District Collector hasassigned the land in favour of the petitioner vide G.O.Ms.No.58979/63/75dated 19.6.1975. In fact, the correspondences of the Board with MMDAalso make it clear that even in respect of Plot No.197, there is arecommendation that the same can be given to the petitioner for thepurpose of running the School as per the Rules and Regulations. Theproposed recommendation in respect of Plot No.197 was in addition toPlot No.200, which is already in possession of the petitioner. It is asagainst the subsequent order of the Board dated 5.9.1986 treating thislease-cum-sale agreement, the Board has fixed the value of the land at https://hcservices.ecourts.gov.in/hcservices/ Rs.6,82,500/- and directed the petitioner to pay in instalments atRs.7,746/- per month, and the petitioner has been agitating the samewith the Government by filing various representations and appeals andadmittedly, as seen in the counter affidavit filed by the Board, suchappeals are still pending and not disposed of. In the mean time, theBoard has taken action by treating the petitioner as an encroacher andan order has been passed on 16.6.1998 directing the petitioner to vacateand hand over possession of the land on the basis that the petitioner isan encroacher in respect of Plot No.200 i.e., a lease-cum-sale wasallotted and the petitioner was not coming forward to comply with theterms of payment of the instalment amount and as against the said orderdated 16.6.1998, the petitioner has also filed an appeal before theCommissioner, who is the Secretary to Government, as it is seen from thecounter affidavit filed by the Board. While so, the impugned order cameto be passed on 2.7.1998 straight away cancelling the assignment inrespect of Plot No.200 granted to the petitioner. The main reason forthe purpose of cancelling the assignment is that the petitioner has putup eight shops without proper permission from the Board and approvalfrom the authorities, viz., CMDA. The learned counsel for the CMDA hasconfirmed that on verification, the CMDA has found that the petitionerhas in fact constructed eight shops without proper approval, which iscontemplated under the Act. 10. Therefore, a reference to the impugned order shows that themain reason given is that the petitioner-School has converted the placeallotted for the purpose of running the School to one for commercialpurposes of putting up construction of eight shops and letting out thesame to third parties. In this impugned order, the respondents have notchosen to state anything about the encroachment stated to have been madeby the petitioner in respect of Plot No.200, i.e., probably due to thereason as stated in the affidavit filed by the respondent that since theappeal preferred before the Government is pending, the impugned orderrestricts itself only for the purpose of unauthorised construction madeby the petitioner by putting up shops. 11. A reference to the records, which has been elicited above,clearly shows that there was in fact assignment given to the petitionerby the Government and subsequently, the same has been given as allotmentby the District Collector, for which the Board has not objected and allthese proceedings are only for the purpose of permitting the petitionerto run the School in North Madras area, which is in dire need ofeducation. When that is the case, it is admitted by the petitioner, asit is seen from their affidavit, that they have put up construction ofeight shops to meet out various expenses and maintenance of the School,which cannot at all be acceptable. When once the allotment is made forthe purpose of the avowed object of running the School in such abackward area, no excuse from a person like the petitioner can beaccepted that the shops were put up for the benefit of running theSchool by converting the place into one for commercial activities. In https://hcservices.ecourts.gov.in/hcservices/ view of the same, I have no hesitation to hold that the petitioner hasno manner of right whatsoever to put up construction of the eight shopsfor running the School and hence, the said shops are liable to beremoved.12. Moreover, a reading of the impugned order shows that theintention of cancellation of the allotment is only because the propertywas not used for the public purpose. As far as the payment of cost bylease-cum-sale agreement, the matter is pending with the Government.Until the Government decides the issue, it is not open to therespondents to foreclose the same by including that also in the impugnedorder. 13. In view of the same, the writ petition stands ordered bysetting aside the impugned orders of the respondents with a specificdirection to the respondents, including the CMDA, to remove the eightshops put up by the petitioner in the place allotted to the petitionerfor running the School, forthwith. As far as continuation of allotmentin respect of Plot No.197 and Plot No.200 is concerned, the appeal ispending before the Government, as has been admitted by the petitioner.Hence, it has to be decided by the Government. 14. In the circumstances, the writ petition is ordered accordingly.Needless to state that while disposing of the appeal, it is for theGovernment to give opportunity to the petitioner. No costs. Sd/Asst. Registrar/true copy/Sub Asst.Registrargs. To1. The Chairman Tamil Nadu Slum Clearance Board, Kamaraj Salai, Ch-5.2. The Secretary, Revenue Department, St. George Fort, Ch-9.3. The Member / Secretary CMDA, Talamuthu Natarajar Building, Egmore, Chennai – 8. https://hcservices.ecourts.gov.in/hcservices/

4. The Commissioner Corporation of chennai, Ribbon Building, Chennai – 3.5. The Director Elementary School Education, College Road, Chennai.+1 cc to Mr.Y.Bhuvanesh Kumar, Advocate, SR.No.23915.+1 cc to Mr.P.Balasubramani, Advocate, SR.No.23922.Sj (Co)krd / 30.4W.P. No.12411 of 1998