Judgment · High Court · 2009

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 03.12.2009Coram THE HON’BLE MR. JUSTICE K.CHANDRU W.P.Nos.29946 to 29958, 30014 to 30018, 30281 and 30282 of 2007& M.P.Nos.1 of 2007G.Lakshmi...Petitioner in W.P.No.29946 of 2007S.Yogeshwari...Petitioner in W.P.No.29947 of 2007K.Srinivasan...Petitioner in W.P.No.29948 of 2007S.Kanniammal...Petitioner in W.P.No.29949 of 2007K.Mohana...Petitioner in W.P.No.29950 of 2007R.Durairaj...Petitioner in W.P.No.29951 of 2007D.Munian...Petitioner in W.P.No.29952 of 2007R.Kumari...Petitioner in W.P.No.29953 of 2007M.Elumalai...Petitioner in W.P.No.29954 of 2007S.Fathimuthu...Petitioner in W.P.No.29955 of 2007 Joghanabee...Petitioner in W.P.No.29956 of 2007 Nazeer...Petitioner in W.P.No.29957 of 2007 Ibrahim...Petitioner in W.P.No.29958 of 2007 Hyath Basha...Petitioner in W.P.No.30014 of 2007 Mohammed Rabi...Petitioner in W.P.No.30015 of 2007 Ameer Hamja...Petitioner in W.P.No.30016 of 2007 Mumtaj Bee...Petitioner in W.P.No.30017 of 2007 Nafeeza Bee...Petitioner in W.P.No.30018 of 2007P.Jothi...Petitioner in W.P.No.30281 of 2007G.Kumar...Petitioner in W.P.No.30282 of 2007Vs.

The Executive Engineer and Administrative OfficerAnna Nagar DivisionTamil Nadu Housing Board Chennai 402. The ChairmanTamil Nadu Slum Clearance BoardKamarajar Salai, Chennai ..Respondents in all the petitionsPrayer in W.P.No.29946 to 29958, 30014 to 30018, 30281 and 30282 of2007: Petitions filed under Article 226 of the Constitution of Indiapraying for the issuance of Writs of Certiorari calling for the records relating to the order dated 31.8.2007 in LetterNo.ANK/Survey/7518/88 of the 1st respondent and quash the same. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners: Mr.AR.L.Sundarasean, Sr.counselin all Petitions for Ms.AL.GanthimathiFor Respondents :Mr.P.S.Raman, Advocate General assisted by Mr.A.Vijayakumar Counsel for TNHB for R1 in all petitions Mr.Jaivenkatesh for R2 in all the petitions.COMMON ORDERHeard both sides.

The petitioners are occupants of the land in Town SurveyNo.2/2, Block No.12, Ayynavaram Village coming under Purasaivakkam-Perambur Taluk. The petitioners were given the impugned notices dated 31.8.2007 by the 1st respondent, Executive Engineer and Administrative Officer, Anna Nagar Division, Tamil Nadu Housing Boardinforming the petitioners that they were in illegal occupation of the said premises. They were given one week time to remove the encroachment failing which they were threatened with removal of the encroachments by the respondents, who will also collect the appropriate expenditure from the petitioners.

The petitioners have come forward to state that they were inoccupation of the place for more than 25 years. Notices were given by the Tahsildar, Purasaiwakkam even during the years 1979, 1988 and1998 under Section 5 of the Tamil Nadu Land Encroachment Act and penal rents were collected from them. Therefore, the assertion that the land belonged to the Tamil Nadu Housing Board was erroneous. Itis also stated that the Housing Board had not followed the mandatory procedure contemplated under section 84 of the Tamil Nadu HousingBoard Act, 1961 and no show cause notice was issued to them. It is further stated that as per the orders of the Government, they should be given alternative accommodation as was done in the case of otherslum-dwellers from the very same area. It is also stated that even if the land belonged to the Tamil Nadu Housing Board, as per the FullBench decision of this Court, the Board should take action either under the Tamil Nadu Housing Board Act or the Tamil Nadu PublicPremises (Eviction of Unauthorised Occupants) Act by issuing Noticesfor removal of the encroachment. Therefore, the present Notices fall short of such a legal requirement.

Pending the Writ Petitions, the petitioners sought for an interim order. The learned Additional Advocate General undertook that the respondents will not proceed further for one week. Subsequently, the matter stood adjourned for several dates.

After taking notice, the 1st respondent had filed a counteraffidavit dated 22.11.2009. In the counter affidavit, it was stated that the land in question, namely Town Survey No.2/2, Block No.12, https://hcservices.ecourts.gov.in/hcservices/ Ayanavaram Village was alienated to the Tamil Nadu Housing Board by the Revenue Department and is in possession of the Housing Board with effect from 1971 onwards. Therefore, no other person can claim right over the said property. It was also stated that the petitioners areencroachers and they are nothing but land grabbers. In the counteraffidavit, they also referred to the Writ Petitions filed by various persons in respect of the very same property on earlier occasions.

Mr.P.S.Raman, learned Advocate General brought to the notice of this Court the order passed by a Division Bench of this Courtpresided by K.G.Blakrishnan, C.J (as he then was) in Writ AppealNo.2547 of 1999 dated 21.1.2000.

In that case, 64 persons belonged to that area initially filed a Writ Petition before this Court in W.P.No.5639 of 1991seeking for a direction to the State Government to provide alternative accommodation in terms of G.O.Ms.No.1488 dated 3.11.1988as well as the order passed by the Supreme Court before evicting the petitioners from the land in question. Though the Survey Number of the land was not given, in the petition for interim injunction the property was described as R.S.No.739-Part in the Main Road adjacent to old grave yard, MKB Nagar, Vyasarpadi, Chennai 39. A learned judge of this Court by his judgment dated 21.6.1999 dismissed the Writ Petition holding that the petitioners therein were not eligible to be covered in the Scheme made by the State Government. Aggrievedby the order, they had preferred the Writ Appeal. The Writ appeal filed by those persons came to be dismissed by a speaking order dated21.1.2000. The Division Bench held that the petitioners did not fulfill the norms laid down by the Supreme Court .

In paragraphs 4 and 5 of the said order, it has been observed as follows: "4. From the above Government Order, it is clear that the benefit of the Government Order has to be given to theencroachers who had come to into occupation of the Government land on or before 30.6.1984. Though the appellants contended in the Writ Petition that they were inoccupation of the land for more than a decade, they have not furnished any satisfactory evidence to prove their possession prior to 30.6.1984. The counsel for the appellants contended that they have got electricity connection and some of the encroachers have been furnished with ration cards. But these documents will not prove the case of the appellants that they were in possession of the land prior to 30.6.1984. In the counter filed by the Housing Board, it has been specifically stated that the appellants have encroached upon this land only in the year1991. No reply has been filed denying the statement made in the counter. Therefore, one of the conditions to get https://hcservices.ecourts.gov.in/hcservices/ the benefit of the Government is not fulfilled.5. The other condition is that the encroachers must occupy the land belonging to the Government but not of any public sector undertakings or Corporation. It is evident that the scheme was intended to evict the encroachers from the Government land. But referrence has been made to certain departments but they also form part of the Government. We do not think that the Government Order is intended to evict the encroachment from the property owned by the Housing Board which is an autonomous body. In such circumstances we see no reason to interfere with the order of the learned Single Judge and we hold that the learned single Judge was justified in rejecting the Writ Petition. We see no merit in the writ appeal and accordingly it is dismissed. " (Emphasis added)

Therefore, on the strength of this Division Bench Order, the learned Advocate General stated that no indulgence can be shown to the petitioners. There is no infirmity in the order passed by the respondent Tamil Nadu Housing Board. He also submitted that invocation of Section 84 of the Tamil Nadu Housing Board Act is misconceived and the said provision will apply only to persons whose induction to the land owned by the Housing Board was lawful and thereafter either for overstayal or violation of the conditions of allotment, Section 84 of the Tamil Nadu Housing Board Act can bepressed into service.

Reliance was placed upon the Division Bench judgment of this Court in W.A.No.100 of 1994 pertaining to N.V.Annie vs. Tamil NaduHousing Board and 2 others dated 1.7.1997. In this context, it is necessary to extract the following passage found in para 3 of the order and it reads as follows: "We are of the view that unauthorised occupation visualized in Section 84(1)(b) of the Act for the purpose of Section 84(2) of the Act is of a person, whose initial occupation was legal, but subsequently has become unauthorised for any one of the defaults committed as provided in the other limbs of Section 84, and not to an utter stranger so far as the property of the Housing Board is concerned. Such a person, who is an encroacher, so to say cannot claim any protection under the provisions of the Act. Consequently we see no merit whatsoever in the challenge made or the grievance projected under section 84(2) of the Act. "11. In any event, the learned Advocate General also pointed out that some of the petitioners1 in these Writ Petitions had already attempted to move this Court earlier in Writ Petitions beingW.P.Nos.17220 to 17226 of 1999 in Dawood Bi vs. the Executive https://hcservices.ecourts.gov.in/hcservices/ Engineer and Administrative Officer, Anna Nagar Division, Tamil NaduHousing Board. In those Writ Petitions, this Court by an order dated1.9.2003 held that the petitioners' claim involved disputed questions of fact, which cannot be gone into a Writ Petition filed under Article 226 of the Constitution.

Mr.AR.L.Sundarasean, learned senior counsel for the petitioners strenuously contended that his clients are aware of the petitions which came before this Court on the earlier action covered by the order of the Division Bench dated 21.1.2000. The petitioners have always been in possession and they are willing to show the records which are in their possession. He also submitted that the Housing Board is not the owner of the land and it is a revenue land. Therefore, the Tamil Nadu Land Encroachment Act alone can be pressed into service. The learned senior counsel for the petitioners further stated that the petitioners should be given some alternative accommodation as was done in the other cases of Slum dwellers of the very same area.

In any event, in the order dated 1.9.2003 this Court had directed the Tamil Nadu Housing Board that the provisions of the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Actor the Tamil Nadu Housing Board Act will have to be invoked before the removal of the petitioners' encroachment. Such a reason finds justification from the Full Bench Judgment of this Court presided byP.K.Misra, J (as he then was) in Ramaraju vs. The State of Tamil Nadureported in 2005 (2) CTC 741. In para 38(6), it was observed as follows: "(6). If the encroachment is on the land belonging to the Local Authorities, but such land is not part of the road or road margin or roadside land, eviction can be effected by following the procedure contemplated in law, namely, either by taking recourse to the Tamil Nadu Public Premises(Eviction of Unauthorised Occupants) Act, 1975 or any other law applicable or otherwise by taking recourse to CivilCourt and not by use of unilateral force. " https://hcservices.ecourts.gov.in/hcservices/

In the light of the same, the Tamil Nadu Housing Board is entitled to proceed with the impugned Notice. The said Noticessatisfy the minimum notice contemplated under the Public PremisesAct. Hence, the Notice issued by the Tamil Nadu Housing Board will stand. It is open to the petitioners to submit any written explanation within a period of two weeks from today with supporting documents. If such an explanation is furnished, the respondents shall consider the said explanation and pass a speaking order before taking further action on the matter in question. Till such time therespondent's take a decision, status quo as on date will be maintained by both the parties.

The Writ Petitions are disposed of in the above terms. However, there will be no order as to costs. All the connectedMiscellaneous Petitions stand closed. Sd/Asst. Registrar/true copy/Sub Asst. Registrar ajrTo1.The Executive Engineer and Administrative OfficerAnna Nagar DivisionTamil Nadu Housing Board Chennai 402. The ChairmanTamil Nadu Slum Clearance BoardKamarajar Salai, Chennai 1 cc To M/s.A.L.Gandhimathi, Advocate, SR.659541 cc To Mr.A.Vijayakumar, Advocate, SR.65658W.P.Nos.29946 to 29958,30014 to 3001830281 and 30282 of 2007SGL(CO)sra 16.12.2009