B.Arunajothy v. Tamil Nadu Housing Board & Ors.

IN THE HIGH COURT JUDICATURE AT MADRASDATED : 09.12.2009CORAM:THE HONOURABLE MR.JUSTICE P.JYOTHIMANIW.P.No.409 of 2008B.Arunajothy ..PetitionerVs1. Tamil Nadu Housing Board rep. by its Managing Director-cum-Chairman, 493, Anna Salai, Nandanam, Chennai 600 035.2. The Revenue Officer, Tamil Nadu Housing Board, No.493, Anna Salai, Nandanam, Chennai 600 035.3. The Secretary-cum-Executive Officer, Tamil Nadu Housing Board, Nandanam Division, No.493, Anna Salai, Nandanam, Chennai 600 035. ..RespondentsWrit petition filed under Article 226 of the Constitution ofIndia praying for a writ of certiorarified mandamus calling for therecords in proceedings No.Va.Va.4406/07 on the file of the secondrespondent dated 13.07.2007 and quash the same and consequentlytransfer the allotment with respect to the subject premises bearingFlat No.9D, New Tower Block, Nandanam, which was allotted to the nameof the late husband of the petitioner to the name of the petitioner.For Petitioner:Mr.R.Krishnamurthy,Sr.Counsel forMr.V.AyyaduraiFor RR 1 to 3:Mr.A.Vijayakumar https://hcservices.ecourts.gov.in/hcservices/ ORDERHeard both sides.2. The writ petition is directed against the order of the 2ndrespondent dated 13.07.2007 by which the 2nd respondent while referingto a show cause notice issued by the 3rd respondent dated 09.04.2007and the subsequent explanation submitted by the petitioner dated25.04.2007, has passed orders holding that as per the procedures ofthe Housing Board, there is no provision for transferring theallotment of Housing Board Quarters given on rent to the legal heirsafter the death of the original allottee by quoting resolution of theBoard No.11.04 dated 21.07.1997.3. Accordingly, by exercising the powers under section 84[1] ofthe Tamil Nadu Housing Board Act, 1961, the allotment given inrespect of Door No.9D to the petitioner's husband, stood cancelled.It is the case of the petitioner that the petitioner's husband wasallotted the said residential quarters-9D, in the year 1989 under thepublic quota. After the original allottee, viz., the petitioner'shusband died in the year 1991, the petitioner as the legal heir ofthe deceased allottee, has been allowed to continue to occupy fornearly 16 years. It was on 09.04.2007, the 3rd respondent who is thecompetent authority under the Tamil Nadu Housing Board Act, forissuing notices and conducting enquiry of eviction of unauthorisedoccupants, has issued the show cause notice to the petitioner statingthat the petitioner is an unauthorised occupant and she should submither explanation either in person or by registered post within fifteendays. Accordingly, the petitioner has submitted her explanation on25.04.2007 quoting some of the instances wherein the legalrepresentatives of the deceased allottees have been considered forcontinuation of the allotment. It was thereafter, without conductingany enquiry, the 2nd respondent has passed the impugned order dated13.11.2007 as stated above.4.Mr.R.Krishnamurthy, learned senior counsel appearing for thepetitioner, by referring to the provisions of section 84 of the TamilNadu Housing Board Act, 1961, would submit that the said Actcontemplates not only the issuance of show cause notice and alsopermitting the occupant to give explanation, but also an enquiry iscontemplated since a right has been given to the occupant to furnishevidence. He would also refer to the guidelines issued by the TamilNadu Housing Board based on the powers under the Act whichcontemplates the enquiry wherein personal enquiry is contemplated.Therefore, according to the learned senior counsel that inasmuch asthe personal enquiry has not been conducted and no opportunity wasgiven to the petitioner to appear in person to substantiate her case.It is in violation of principles of natural justice and in violationof principles of statutory provisions and therefore, submitted that https://hcservices.ecourts.gov.in/hcservices/ the petitioner need not be driven to file an appeal before theAppellate Authority u/s.86 of the Act.5.On the other hand, it is the case of the respondents as statedin the counter affidavit filed by the respondents, that as per thePolicy of the Housing Board, a decision was taken as early as on21.07.1997 by passing resolution that the legal heirs are notempowered to have succession of right of occupancy and the saidcircular has been challenged in various proceedings and upheld bythis court. It is the further case, as it is seen in the counteraffidavit that when an adequate alternate remedy of appeal isavailable u/s.86 of the Act, the present writ petition has to bedismissed by directing the petitioner to file the appeal. It is thecontention of the learned counsel for the respondents that when oncean opportunity was given to the petitioner to submit her explanationand accordingly, she has submitted her explanation, the concept ofenquiry comes to an end and therefore, the impugned order passed bythe 2nd respondent cannot be found fault with.6.On a reference to the impugned order, it is seen that the samehas been passed by the 2nd respondent. It is not the case of therespondent Housing Board that the 2nd respondent is the competentauthority for enforcing the statutory function u/s.84 of the TamilNadu Housing Board Act for eviction. On the other hand, the 3rdrespondent who is the competent authority under the Act, has in fact,issued the show cause notice dated 09.04 2007 as per section 84[2] ofthe Act and it is for that show cause notice, the petitioner hassubmitted her explanation on 25.04.2007 to the 3rd respondent, ofcourse, raising various defences including that in other cases, thelegal heirs have been allotted and so on. Surprisingly, the 2ndrespondent who is not the authority competent u/s.84 of the Act, haspassed the impugned order. On this score itself, the impugned orderis liable to be set aside.7.In any event, the further question to be considered is as towhether the order passed by the 2nd respondent is in accordance withsection 84 of the Act. Section 84 of the Act reads as follows:-"84.Power to Evict certain persons from BoardPremises:-[1]If the competent authority is satisfied - [a] that the person authorized to occupy any Boardpremises has- [i]not paid rent lawfully due from him inrespect of such premises for a period of morethan two months; or https://hcservices.ecourts.gov.in/hcservices/ [ii]sublet without the permission of theBoard, the whole or any part of such premises;or [iii]otherwise acted in contravention ofany of the terms, express or implied, underwhich he is authorised to occupy such premises;or [b]that any person is in unauthorised occupationof any Board premises, the competent authority, maynothwithstanding anything contained in any for thetime being in force, by notice served [i]by registered post or [ii]by affixing a copy of it on the outerdoor or some other conspicuous part of suchpremises or [iii]in such other manner as may be prescribed,order that the person authorized to occupy as well asany other person who may be in occupation of thewhole or any part of the premises shall vacate themwithin one month of the date of service of the notice.[2]Before an order under sub-section [1] is madeagainst any person, the competent authority shallinform the person, by notice in writing and served inthe manner provided for service of notice under sub-section [1] of the grounds for which the proposedorder is to be made and give him a reasonableopportunity for tendering an explanation andproducing evidence, if any, and to show cause whysuch order should not be made within a period to bespecified in such notice.[3]The competent authority may, on application, grantextension of the period specified in such notice onsuch terms as to payment and recovery of the amountclaimed in the notice as he deems fit.[4]Any written statement put in by such person anddocument produced in pursuance of such notice shallbe filed with the records of the case, and suchperson shall be entitled to appear in the proceedingseither in person or by pleader. https://hcservices.ecourts.gov.in/hcservices/ [5]If any person refuses or fails to comply with anorder made under sub-section [1], the competentauthority may evict that person from and takepossession of the premises and may for that purposeuse such force as may be necessary.[6]If a person, who has been ordered to vacate anypremises, under sub-section [1] or [iii] of clause[a] of sub-section [1] within one month of the dateof service of the notice or such longer time as thecompetent authority may allow, pay to the Board therent in arrears or caries out or otherwise complieswith the terms contravened by him to the satisfactionof the competent authority, as the case may be, thecompetent authority, shall, in lieu of evicting suchperson under sub-section [1], cancel its order madeunder sub-section [1] and thereupon such person shallhold the premises on the same terms and on which heheld them immediately before such notice was servedon him."8.The above section contemplates not only a right of explanationby the party concerned, but also confers a right on that person toproduce evidence. Such right to produce evidence is possible only ifthe party is given an opportunity to participate in the hearing whichcan be done only in the form of an enquiry. In fact, the guidelinesissued by the Tamil Nadu Housing Board in respect of cancellation andeviction, as it is seen in Chapter XIV, makes it clear that anenquiry shall be conducted by the competent authority aftersubmission of explanation by the person concerned. The procedure tobe followed in respect of carrying out eviction are spelt out inChapter XIV which reads as follows:-"The procedures to be followed for carrying outeviction are as follows:-1.A notice in Form-E as specified in the TamilNadu Housing Board Act, 1961, shall be issued.2.The Form-E notice shall contain the details ofthe periods of arrears, specific conditions which areviolated etc. The details shall be correctlymentioned.3.The allottee/person in occupation must begiven reasonable time under section 84[2] forsubmitting his explanation, a time not less than one-month shall be given. https://hcservices.ecourts.gov.in/hcservices/

4.The date and time for enqiry shall be fixedafter receipt of explanation from the allottee/personin possession of the flat/house. The allottee/personin possession of the flat/house or his/her counsel orpersons representing them shall appear in person atthe time of enquiry and produce their evidence.5.The enquiry shall be conducted if theallottee/person in possession of the flat/house orhi/her counsel or persons representing them appear orposted for another day for their appearance. If anystatements and records are submitted then they shallbe received and recorded.6.The competent authority shall after thereceipt of the explanation, statement and records andshall pass orders. The reason for arriving at theconclusion shall be clearly mentioned in the orderand it shall be communicated. And if the explanationis ruled out then it shall also mention that theoccupation is unauthorized.7.The competent authority while communicatingthe order or immediately or thereafter, shallcommunicate the order under sec.84[1] in Formdeceased, as in Tamil Nadu Housing Board Act, 1961.8.The order shall clearly allow 30 days time tovacate the premises. If the person fails to vacatethe premises the competent authority shall evict theperson; if necessary even force can be used aftertaking protection from police. After eviction iscarried out, the premises may be locked and sealed.Later, the lock may be broken open in the presence ofPolice Officials and with a minimum of two witnessesand the inventory of the belongings of the allottee /person occupying the premises shall be taken andcounter signature of the Police Officer and thewitnesses shall be obtained for all the activities.The Executive Engineer concerned, may be asked totake possession of the premises as well as thearticles found in the premises for safe custody. Anda detailed report shall be submitted to the officerconcerned.9.If the eviction is for the arrests of rent orfor violation of conditions and the allottee pays thearrears of rent within a month then the competentauthority shall cancel eviction order." https://hcservices.ecourts.gov.in/hcservices/

9.The procedures which are stipulated are in consonance withsection 84[2] of the Tamil Nadu Housing Board Act which contemplatean enquiry. In the absence of any enquiry conducted by the competentauthority, viz., the 3rd respondent, it is not possible to accept thecontention of the learned counsel for the respondents that merely anopportunity has been given to the petitioner to file her explanationand that is sufficient for confirming the principles of naturaljustice. In the circumstances, when the principles of naturaljustice have been violated, it is not necessary for this court todrive the petitioner to approach the Appellate Authority by filing anappeal u/s.86 of the Act. It is further relevant to point out thateven u/s.84[1][a] of the Act, which is as follows:-84.Power to Evict certain persons from BoardPremises:-[1]If the competent authority is satisfied - [a] that the person authorized to occupy any Boardpremises has- [i]not paid rent lawfully due from him inrespect of such premises for a period of morethan two months; or [ii]sublet without the permission of theBoard, the whole or any part of such premises;or [iii]otherwise acted in contravention ofany of the terms, express or implied, underwhich he is authorised to occupy such premises;" Three circumstances are contemplated for the purpose of eviction ofthe person by the competent authority. A relevant point is raised bythe learned senior counsel for the petitioner that the issue involvedin this case does not cover under any one of the three circumstancesas stated above and these are the matters which could have beenelicited by the petitioner only after proper enquiry was conducted bythe competent authority. https://hcservices.ecourts.gov.in/hcservices/

10.In such circumstances, the impugned order passed by the 2ndrespondent dated 13.07.2007 is set aside, however, with liberty tothe respondents to take appropriate steps in accordance with law, ifso advised. The writ petition is allowed. No costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarapTo1. The Managing Director-cum-Chairman, Tamil Nadu Housing Board, 493, Anna Salai, Nandanam, Chennai - 600 035.2. The Revenue Officer, Tamil Nadu Housing Board, No.493, Anna Salai, Nandanam Chennai - 600 035.3. The Secretary-cum-Executive Officer Tamil Nadu Housing Board, Nandanam Division, No.493, Anna Salai, Nandanam, Chennai - 600 035.+ 1 c.c. to Mr. V.A. Ayyadurai, Advocate. S.R.No.67559.+ 1 c.c. to Mr. A. Vijayakumar, Advocate. S.R.No.67592.W.P.No.409 of 2008KS (CO)GSK 17.12.2009.