T. Nithyananthan v. Mrs. V. Chandra

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 24..04..2009Coram:THE HONOURABLE MR.JUSTICE G.RAJASURIAS.A.No.803 of 2008and M.P.No.1 of 2008T.Nithyananthan... Appellant/Defendantvs.Mrs.V.Chandra... Respondent/Plaintiff This second appeal is filed against the judgement and decreedated 27.9.2007 passed by the learned VII Additional Judge, CityCivil Court, Chennai, in A.S.No.394 of 2007, confirming thejudgement and decree dated 12.4.2007 passed by the learned IIAssistant Judge, City Civil Court, Chennai, in O.S.No.1105 of 2001.For Appellant : Mr.P.K.GopalrajFor Respondent : Mr.P.P.Rajendran JUDGMENTThis second appeal has been filed by the defendant,animadverting upon the judgement and decree dated 27.9.2007 passed bythe learned VII Additional Judge, City Civil Court, Chennai, inA.S.No.394 of 2007, confirming the judgement and decree dated12.4.2007 passed by the learned II Assistant Judge, City CivilCourt, Chennai, in O.S.No.1105 of 2001. For convenience sake, theparties are referred to here under according to their litigativestatus before the trial Court.2. A summation and summarisation of the relevant facts, which areabsolutely necessary and germane for the disposal of this secondappeal, would run thus:"The Respondent/plaintiff filed the suit O.S.No.1105 of2001 as against the defendant, seeking mandatory injunction,so as to direct the defendant to demolish the wall on theEastern side of plaintiff's house measuring 1½ feet East toWest and 10 feet North to South marked BEFG in the sketch atNo.24, 'B' Block, 1st Street, Ezhil Nagar, Chennai-81described in the Schedule B hereunder which is encroached byhim." https://hcservices.ecourts.gov.in/hcservices/ (b) During enquiry, the trial Court framed the relevant issues.One Venkatesan was examined as P.W.1 and Exs.A1 to A.4 were marked.The defendant examined himself as D.W.1 and Ex.B1 was marked.Exs.C1 and C2 were marked as Court documents.(c) Ultimately the trial Court decreed the suit, as againstwhich, the defendant filed the A.S.No.394 of 2007, for nothing but tobe dismissed by the first appellate Court, confirming the judgementand decree of the trial Court.3. Being disconcerted and aggrieved by the judgements anddecrees of both the Courts below, this second appeal has beenfocussed by the defendant on various grounds. My learned predecessorframed the following substantial questions of law at the time ofadmitting the second appeal."i) In a suit of mandatory injunction for removal ofSuperstructure of the defendant, without pleading the dateof construction by the defendant in the plaint, whether theCourt can place the onus of proving the date of constructionof the Superstructure on the defendant?ii) Can the plaintiff who has not pleaded materialfacts in the plaint succeed on the weakness of the defenceof the defendant?4. After hearing both sides for sometime, this Court suo-mottuframed the following additional substantial questions of law:"Whether in view of Sections 29 and 65 of the TamilNadu Slum Clearance Board Act, the suit itself ismaintainable?"5. Heard the learned counsel appearing for both sides on theabove questions of law.6. Section 29 of the Tamil Nadu Slum Clearance Act is extractedhereunder:"Section 29:Proceedings for eviction of occupants notto be taken without permission of the prescribed authority-(1) Notwithstanding anything contained in any other law forthe time being in force, no person shall except with theprevious permission in writing of the prescribed authority-(a) institute, after the commencement of this Act anysuit or proceeding for obtaining any decree or order forthe eviction of an occupant from any building or land insuch area; or https://hcservices.ecourts.gov.in/hcservices/ (b) where any decree or order is obtained in any suitor proceeding instituted before such commencement for theeviction of an occupant from any building or land in sucharea, execute such decree or order.(2) Every person desiring to obtain the permissionreferred to in sub-section (1) shall make an application inwriting to the prescribed authority in such form andcontaining such particulars as may be prescribed.(3) On receipt of such application, the prescribedauthority after giving an opportunity to the parties ofbeing heard and after making such summary enquiry into thecircumstances of the case as it thinks fit shall, by orderin writing, either grant or refuse to grant suchpermission.(4) In granting or refusing to grant permission undersub-section (3), the prescribed authority shall take intoaccount the following factors, namely:-(a) Whether alternative accommodation within the meansof the occupant would be available to him if he wereevicted;(b) whether the eviction is in the interest ofimprovement and clearance of the slum area;(c) such other factors, if any, as may be prescribed.(5) Where the prescribed authority refuses to grantthe permission, it shall record a brief statement of thereasons for such refusal and furnish a copy thereof to theapplicant."The above Section would contain the non-obstante clause to theeffect that no suit shall be instituted after the commencement of thesaid Act, without the permission in writing of the prescribedauthority concerned and the said provision had gone to the extent ofmandating that even if any decree or order is obtained before thecommencement of the said Act and decree was obtained for eviction,the same would not be executed without the previous permission inwriting of the prescribed authority. As such, the very nature of thewords used in the said Section would leave no doubt in the mind ofthe Court that the Civil Court, after the commencement of the Act, isnot expected to entertain any suit without such permission.7. Section 65 of the said Act would run thus: https://hcservices.ecourts.gov.in/hcservices/ "Section 65:Bar of jurisdiction of civil Courts. -Save as otherwise expressly provided in this Act, no civilcourt shall have jurisdiction in respect of any matterwhich the Government are, or the prescribed authority is,empowered by or under this Act, to determine and noinjunction shall be granted by any court or other authorityin respect of any action taken or to be taken in pursuanceof any power conferred by or under this Act."A plain reading of the above would display and demonstrate that itousts the Civil Court's jurisdiction in respect of proceedings takenand orders passed by the authorities concerned.8. Here a bare and plain perusal of the plaint and otherrelevant records would indicate and exemplify, display and evincethat according to the plaintiff's case, he was allotted, as perEx.A2-the Lease-cum-Sale agreement, dated 2.1.1995, the landmeasuring 20 feet X 30 feet at No.24, 'B' Block, 1st Street, EzhilNagar, Chennai-81 and that with the financial assistance of the SlumClearance Board, a superstructure was constructed thereon by theplaintiff. However, the defendant encroached into the said plot toan extent of 1½ feet East to West and 11 Feet South to North, whichis described under 'B' Schedule in the plaint.9. In my considered opinion, the very case of the plaintiffattracts Section 29 of the Tamil Nadu Slum Clearance Act. In fact,the plaintiff intends to evict from a portion of the 'A' Scheduledproperty, which is described as the 'B' Scheduled property, thedefendant. It amounts to also attempting to evict the defendant fromthe property in the Slum area. The raison de etre' of the saidprovision is that in the slum area there should not be any illegaleviction. Even though the plaintiff states that the defendantencroached into a portion of her property and raised wall,nonetheless this also would come under the definition of the term'eviction of an occupant'. An 'occupier' is defined under clause 2(g) of the Act. As such, a bare perusal of the same would revealthat even a person, who is liable to pay damages for use andoccupation of any land or building, so to say a trespasser, comeswithin the meaning of the term 'occupier'. 10. It is quite obvious that without obtaining such permission,the suit was filed by the plaintiff and as such, the suit should nothave been entertained. Accordingly, the additional substantialquestion of law is answered to the effect that the suit filed by theplaintiff was not maintainable.11. It is a pathetic case in which without obtaining suchpermission, the plaintiff litigated all along. However, during thependency of the suit, an Advocate Commissioner was appointed, who https://hcservices.ecourts.gov.in/hcservices/ visited the suit property, measured it and located that the defendantencroached into the suit property. The trial Court also observedthat objection was not filed to the Commissioner's report. The firstappellate Court also confirmed the same. In such a case, there isabsolutely no substantial question of law involved relating to thefinding of fact arrived at by both the Courts below, based onappreciation of evidence, in giving the finding that the defendant isin illegal occupation of a portion of the suit property. However, inview of the fact that the suit was not properly instituted afterobtaining permission, necessarily this Court has to interfere insecond appeal, in view of having decided the additional substantialquestion of law that the suit is not maintainable. It is an exampleas to how even though the plaintiff having got a good case, failedbefore the Courts below because of the non-compliance with theobtention of mandatory prior permission, before instituting the suit.Such Sections 29 and 65 of the Act cannot simply be taken aspettifogging bureaucratic procedure, but those sections 29 and 65are based on sound principles of law. 12. This is a case in which there is nothing to highlight thatthe plaintiff has become the absolute owner of the suit property andin such a case, she could have very well approached the authority forremoval of the encroachment made by the defendant. Accordingly thissecond appeal is allowed setting aside the judgements and decrees ofthe trial Courts below and the original suit is dismissed with adirection that the plaintiff is at liberty to approach theappropriate authority under the Slum Clearance Board within a periodof one month from the date of receipt of copy of this order,whereupon within a period of three months thereat, the authorityconcerned, without questioning about its own jurisdiction tointerfere with the matter, shall take up the matter and after hearingboth sides, as per Rules, dispose of the matter, as per law. Nocosts. Consequently, connected miscellaneous petition is closed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.mskTo1.The VII Additional Judge, City Civil Court, Chennai.2.The II Assistant Judge, City Civil Court, Chennai https://hcservices.ecourts.gov.in/hcservices/

3. The Section Officer, V.R.Section, High Court, Madras.+ 1 CC To Mr.P.K.Gopalraj, Advocate SR NO.17884+ 1 CC To Mr.P.P.Rajendran, Advocate SR NO.18283 S.A.No.803 of 2008PA {CO}TP/18.5.2009.