The Chairman-cum-Managing Director, Tamil Nadu State Housing Board, Nandanam, Chennai-35 v. S.Elumalai

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 05.08.2009CORAM:THE HONOURABLE MR.JUSTICE P.K.MISRAANDTHE HONOURABLE MR.JUSTICE R.SUBBIAHWrit Appeal No.948 of 2009 andWrit Petition Nos.1002 and 14350 of 2009and M.P.Nos.1 in all matters and M.P.No.2 of 2009 in W.A.948 of 2009W.A.No.948 of 20091. The Chairman-cum-Managing Director, Tamil Nadu State Housing Board, Nandanam, Chennai-35.2. The Revenue Officer, Tamil Nadu State Housing Board, Nandanam, Chennai-35...Appellants/Respondents 2 & 3..vs..1. S.Elumalai2. R.Kumaravelu3. B.Sathyanarayanan4. V.Sakunthala5. P.S.Sheeja6. State of Tamil Nadu, rep.by its Secretary to Government, Housing and Urban Development Dept., Fort St.George, Chennai-600 009.7. The Registrar General, Madras High Court, Chennai-600 104. ..Respondents/Petitionersand Respondents 1 & 4W.P.No.1002 of 20091. Y.Mani2. R.Vijayakumar3. V.Trisa4. K.Parthasarathy https://hcservices.ecourts.gov.in/hcservices/

5. P.Srinivasan6. P.Panneer Selvam7. T.Ravi8. J.Soban Babu9. N.Venkatiah10. A.Rani11. K.Rajendran12. R.Baladevan13. R.Neelakandan14. S.Kaleem15. R.Sukumar16. G.Radha17. R.Ekambaram18. N.Seemanthini19. S.Manoharan20. G.Ramamoorthy21. R.Natchathara Kannan22. S.Nalini ..Petitioners..vs..1. State of Tamil Nadu, rep.by its Secretary to Government, Housing and Urban Development Dept., Fort St.George, Chennai-600 009.2. The Chairman-cum-Managing Director, Tamil Nadu State Housing Board, Nandanam, Chennai-35.3. The Revenue Officer, Tamil Nadu State Housing Board, Nandanam, Chennai-35. ..RespondentsW.P.No.14350 of 2009K.Senthilvel ..Petitioner..vs..1. State of Tamil Nadu, rep.by its Secretary to Government, Housing and Urban Development Dept., Fort St.George, Chennai-600 009.2. The Chairman-cum-Managing Director, Tamil Nadu State Housing Board, Nandanam, Chennai-35. https://hcservices.ecourts.gov.in/hcservices/

3. The Revenue Officer, Tamil Nadu State Housing Board, Nandanam, Chennai-35.4. The Registrar General, Madras High Court, Chennai-600 104. ..RespondentsW.A.No.948 of 2009 filed under Clause 15 of Letters Patent,against the order of a learned single Judge dated 30.04.2009 inW.P.No.6748 of 2009. This Writ Petition filed under Article 226 ofthe Constitution of India, praying to issue a 'Writ of Mandamus'directing the respondents to provide alternative accommodation to thePetitioners mentioned in any of the area more particularly either1. Todhunter Nagar, Saidapet, 2. K.G. Colony, Kilpauk, 3. ShenoyNagar, 4. Peters Colony, 5. Pudur, Kodambakkam or any one of thequarters of Housing Board/Public Works Department/Police Quarters inChennai at the earliest and till such time direct the respondents 1to 3 not to vacate the Petitioners from the respective tenements.W.P.No.1002 of 2009 filed under Article 226 of the Constitutionof India, for issuance of a Writ of Mandamus, forbearing therespondents, their men, agents and subordinates from evicting thepetitioners from Foreshore Estate Housing Board without providingalternate site within the City of Madras.W.P.No.14350 of 2009 filed under Article 226 of the Constitutionof India, for issuance of a Writ of Mandamus, directing therespondents to provide alternative accommodation to the petitionersmentioned in any of the area more particularly either (1) TodhunterNagar, Saidapet, (2) K.G.Colony, Kilpauk, (3) Shenoy Nagar, (4)Peters Colony, (5) Pudur, Kodambakkam, and (6) Venkattapuram,Saidapet or anyone of the quarters of Housing Board/Public Worksdepartment/Police Quarters in chennai at the earliest and till suchtime direct the respondents 1 to 3 not to vacate the petitioner fromthe respective tenements.For Appellants : Mr.P.Wilson, AAG., assisted by Mr.K.Chelladurai in W.A. For Respondents : Mr.R.Muthukumarasamy, Senior Counselin W.A. for Mr.A.Jenasenan in W.A. For Petitioners : Mr.Lakshminarayanan (WP 1002/2009) Mr.C.D.Johnson (WP 14350/2009)For Respondents : Mr.D.Veerasekaran for R1 in both WPs. Mr.P.Wilson, AAG., assisted by Mr.A.Vijayakumar for TNHB in both WPs https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENTR.SUBBIAH, J.,Since the issue involved in all the matters is one and the same,they are disposed of by this common judgment.2. The facts, which are necessary to decide the issue, are asfollows:The petitioners in both the writ petitions and W.P.No.6748 of2009 (the subject matter of W.A.No.948 of 2009) are the employees ofthe High Court as well as the the Courts situated within the limitsof Chennai City. The averments, which are similar in the said writpetitions, are that the petitioners are the allottees of theGovernment quarters situated at Foreshore Estate and they areresiding in the said flats for a long time. The said flats have beenallotted to them under the Tamil Nadu Rental Housing Scheme. Therent is being collected from their salary and remitted in theGovernment account. The Tamil Nadu Housing Board is the custodian formaintaining these rental houses. These flats were constructed 35years ago and they are situated in the sea-shore area and have beenaffected by tsunami during December, 2004. Therefore, the Governmentconstituted a Committee of Experts to assess the damage and reportthe same to the Government and as per the Expert Committee's report,it was decided to demolish the dilapidated buildings and constructnew one for Tamil Nadu Rental Housing Scheme as the same is unfit forsafe living and human occupation. Hence, notices were issued to allthe allottees through their Head of the departments to vacate andhand over the possession of the apartments so as to safeguard theirlives and properties of the allottees from untoward incident as thebuildings are not worthy for living. On receipt of the evictionnotice, the occupants of the quarters approached this Court by way ofdifferent writ petitions seeking orders/directions, forbearing therespondents from evicting the allottees from Foreshore Estate HousingBoard, without providing alternative site within the City of Madras.As per the order of this Court dated 02.12.2008 in W.P.No.18512 of2008, alternative allotments were made to the petitioners thereby.There are various unoccupied housing board flats available in theCity. Without initiating any action to accommodate the petitionersin that premises, the respondents had requested to occupy the minihouses constructed for people below the poverty line, which arelocated beyond 50 kms.from the Court. Hence, the petitioners inW.P.Nos.1002 and 14350 of 2009 want alternative accommodation withinthe City limits.3. The petitioners in W.P.No.6748 of 2009, sought for adirection to the respondents to provide alternative accommodation tothem in any of the vacant flats situated at Todhunter Nagar,Saidapet, Shenoy Nagar, K.G.Colony, Kilpauk, Peters Colony, Pudur https://hcservices.ecourts.gov.in/hcservices/ Kodambakkam. The learned single Judge, by order dated 30.04.2009,directed the respondents therein to provide alternative accommodationin any one of the places found in the list produced by respondents 1to 5. Aggrieved over the same, the Government has preferred thepresent appeal, viz., W.A.No.948 of 2009. For the sake ofconvenience, the allottees are described as petitioners and theGovernment authorities are described as appellants.4. Learned Additional Advocate General appearing for theappellants submitted that it is impracticable for the Government togive alternative rental accommodation for all allottees within theCity limits due to non-availability of Government rental quarters.Therefore, the Tamil Nadu Government and the Housing Board haveissued G.O.Ms.No.93, Housing & Urban Development (H.B/5(2)Department, dated 24.03.2008, after deeply examining the problems ofthe allottees of the Foreshore Estate Government Quarters. As per thesaid G.O., accommodations were provided at the Colonies put up by theSlum Clearance Board at Semmancheri or in alternative, the HousingBoard prepared to give an advance of Rs.25,000/- to those allottees,who express their willingness to vacate their houses at ForeshoreEstate and shift their residence to private rental houses and thesaid advance shall be recovered from the allottees in 25 equalmonthly instalments. Some of the allottees expressed theirwillingness to go to Semmancheri to occupy the premises allotted bythe Government and most of them received Rs.25,000/- interest freeloan and vacated their houses. Though majority of them have vacatedby expressing their willingness to opt the concession introduced bythe Housing Board, still some of the allottees do not want to goeither to Semmenchery or to receive Rs.25,000/- and they are stillresiding in the flats under their occupation. 5. The learned Additional Advocate General further submittedthat majority of the occupants from the Foreshore Estate opted theScheme brought by the Government and the Tamil Nadu Housing Board byaccepting the interest free loan amount of Rs.25,000/- to meet theincidental expenses for shifting their residence and some of theoccupants shifted their accommodation to Semmancheri. Further, byshowing the photographs with regard to the condition of thedilapidated buildings, learned Additional Advocate General submittedthat it is totally unsafe for the occupants to reside in suchpremises. Therefore, the Government had decided to demolish theentire building and reconstruct the same with a view to allot theflats for the allottees who were already in occupation. Further, itis submitted that it is the duty of the Government servants to obeyand co-operate with the order of the Government to ensure theirsafety instead of showing any protest. Because of the act of theallottees, who continue to reside in the quarters, the appellants arenot able to commence their work of demolition. In fact, as per thedecision of the Government, once the construction is over, the https://hcservices.ecourts.gov.in/hcservices/ allotment will be made to the same persons. Thus, he prayed that theappeal has to be allowed.6. Per contra, the learned senior counsel Mr.R.Muthukumarasamyappearing for the petitioners/allottees in the writ appeal submittedthat as per the orders passed by this Court in some earlier writpetitions filed by a group of allottees, alternative accommodationswere provided by the appellants. The petitioners/allottees in thewrit appeal are also having the equal right. Therefore, byconsidering the plight of the allottees, alternative accommodationshould be provided to them. Learned counsel appearing for the writpetitioners also made his submission on the similar lines. 7. Learned counsel appearing for the writ petitioners inW.P.No.1002 and 14350 of 2009 produced a list of available flats inthe different Government quarters situated within the City limits byway of filing a separate affidavit. With regard to the availableflats, learned Additional Advocate General submitted that more than900 persons are in the waiting list awaiting for the allotment ofGovernment quarters. Therefore, by by-passing the waiting list,allotments could not be given to the petitioners. Further, he onceagain reiterated that once the construction was over, the allotmentmay be given immediately to the same persons as per the registrationof their seniority recorded in the list in respect of vacating thequarters. 8. Heard the learned counsel for all the parties.9. From the submissions made by the learned counsel for thepetitioners, it could be understood that there is no dispute invacating the flats. The only grievance expressed by the allottees isthat Semmancheri is far away from the City. Therefore, Educationalfacilities of their children will be very much affected. Further,most of them are working in the Judicial Department in various Courtssituated within the City limits and if they are shifted toSemmancheri, it would be very difficult for them to travel such along distance since there is no frequent transportation service toreach the City from Semmancheri. Except this grievance, we do notfind any other grievance expressed by the allottees. 10. At this stage, it would be appropriate to extract clauses 13and 20 found in the agreement entered by the allottees of theGovernment Quarters with the Housing Board, (available in theadditional typed set) which are relied on by the learned Additionaladvocate General while making his submission that the allottees haveno right to continue in the flats, as hereunder:"13. I shall handover the possession of the said premisesat the termination of the tenancy peacefully to the said Boardin the same condition in which they were at the commencement https://hcservices.ecourts.gov.in/hcservices/ of the tenancy reasonable wear and tear excepted. Thequestion as to what reasonable wear and tear shall be decidedby the Board and the decision of the Board shall be final andbinding on me. And also to make good the loss or damages thatmight have been caused to the tenement according to the saidBoard in cash, or from my deposit if available.20. The tenancy shall be terminable by either side givento the other, one clear calendar month's notice. If I leavetenement without giving such notice in writing, I shall beliable to pay one clear calendar month's rent in lieu of suchnotice and all other charges due from me as provided hereinfor the notice period".11. When the allottees had entered into an agreement with theTamil Nadu Housing Board that the tenancy will be terminable by onemonth's notice and when the intention of the Government is only todemolish and reconstruct the building since it is highly unsafe tocontinue to reside in the same, the allottees have no right tocontinue the tenancy. Now, the question is whether the relief soughtfor by the petitioners, namely, direction to the authorities toprovide alternative accommodation within the City limits, can begranted or not. 12. As pointed out by the learned Additional Advocate General,when more than 900 persons are waiting for allotment of Governmentquarters, by by-passing the said list, such a direction cannot begranted as prayed for by the allottees, particularly in thecircumstances when the Government had decided to allot the flats toall the same persons after the construction is over. In view of thedecision of the Government to re-allot the flats after constructionto the same persons, it is clear that the alternative accommodationis only for a temporary in nature. By taking into consideration theplight of the building and the risk of life of the allottees, who arestill occupying the flats, the discomforts, if any, they will begoing to face for a short period by shifting their residence, are notof a serious concern. The submission made by the learned seniorcounsel appearing for the respondents in the writ appeal that sinceas per the order of this Court some of the allottees have been givenalternative accommodation within the City limits, the same reliefshall be granted to the respondents in the writ appeal, may not beaccepted. Since some of the allottees are provided with alternativeaccommodation within the City limits in the earlier writ petitions,it does not mean that the present allottees are having a right foralternative accommodation because such a relief under Article 226 ofthe Constitution of India is discretionary in nature. Further, mostof the allottees have accepted the Scheme introduced by theGovernment. At this stage, if the prayer of these allottees isaccepted, then the other persons, who are residing in the flats, alsomay approach this Court with the same prayer. Under such https://hcservices.ecourts.gov.in/hcservices/ circumstances, it will be very difficult for the Government to allotthe alternative accommodation. Moreover, in a writ petition filed bythe Fore Shore Estate Government Employees Residents WelfareAssociation, this Court passed an order, directing the members ofthe said petitioner association to vacate their quarters within aparticular period. Hence, we are not inclined to accept thesubmission made on behalf of the allottees and they are not entitledto the relief sought for. However, we record the submission made bythe learned Additional Advocate General that allotments will be madeto the allottees, as per the registration of their seniority recordedin the list while vacating the flats. The said allotment will bemade if they are eligible for allotment at the time of allotting suchflats. For the reasons stated above, the writ appeal is allowed andboth the writ petitions are dismissed with the above observation. Nocosts. Consequently, connected M.Ps.are closed.(Order of the Court was made by P.K.MISRA, J.,)After judgment was pronounced, learned counsel appearing for thepetitioners prays that some time may be granted to the petitioners tovacate the premises and to enable them to find out alternativeaccommodation. 2. If any of the petitioners files an affidavit, giving anundertaking to vacate the premises voluntarily by 15.09.2009, timecan be extended in respect of such person till 15.09.2009. It is madeclear that if no such affidavit is filed within seven days fromtoday, the Housing Board would be free to take any coercive steps fortaking possession of the flats in question.sd/-Asst.Registrar/true copy/Sub Asst.Registrarglsai1. The Secretary to Government, State of Tamil Nadu, Housing and Urban Development Dept., Fort St.George, Chennai-600 009.2. The Chairman-cum-Managing Director, Tamil Nadu State Housing Board, Nandanam, Chennai-35. https://hcservices.ecourts.gov.in/hcservices/

3. The Revenue Officer, Tamil Nadu State Housing Board, Nandanam, Chennai-35.4. The Registrar General, Madras High Court, Chennai-600 104.+ 1 c.c. to Mr. V. Raghavachari, Advocate. S.R.No.35825.+ 1 c.c. to Mr. J.D. Johnson, Advocate. S.R.No.35966.+ 1 c.c. to Mr. A. Vijayakumar, Advocate. S.R.No.36269.+ 1 c.c. to Mr. D. Veerasekaran, Advocate. S.R.No.36156.+ 1 c.c. to Mr. K. Chelladurai, Advocate. S.R.No.35830.+ 1 c.c. to Mr. A. Jenasenan, Advocate. S.R.No.35764.+ 1 c.c. to The Government Pleader. S.R.No.35716 & 35862. Common judgment in W.A.No.948/2009 and W.P.Nos.1002 & 14350/2009CK (CO)GSK 07.08.2009.