IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 02-08-2007 CORAM : THE HONOURABLE MR.JUSTICE A. KULASEKARAN 18610, 18804, 19223, 19261 to 19267, 19495, 19594, 19603, 19901, 19960, 20036, 20048, 20061 to 20063, 20323, 20810 and 21470 of 2007 M/s. Nagappa Petro products Private Limited rep. By Managing Director Dr. M. Palaniappan 13, Balfour Road Kilpauk, Chennai – 600 010 .. Petitioner in WP.No.18610/07 K. Mani .. Petitioner in WP.No.18804/07 M. Palani .. Petitioner in WP.No.19223/07 R. Pramavathi .. Petitioner in WP.No.19261/07 M. S. Chandrasekar .. Petitioner in WP.No.19262/07 A. Suresh .. Petitioner in WP.No.19263/07 N. Ravichandran .. Petitioner in WP.No.19264/07 S. Thanga Mariyappan .. Petitioner in WP.No.19265/07 T. Then Maniammal .. Petitioner in WP.No.19266/07 S. Punniyakoti .. Petitioner in WP.No.19267/07 D. Vinayagam .. Petitioner in WP.No.19495/07 HMT Motors, rep by its Partner, V. Hari Krishnan, No.551/22A, Poonamallee High Road, Arumbakkam, Chennai 106 .. Petitioner in WP.No.19594/07 P. J. Mathew .. Petitioner in WP.No.19603/07 J. Vincent .. Petitioner in WP.No.19901/07 Vijaya Ammal .. Petitioner in WP.No.19960/07 V. Valarmathy .. Petitioner in WP.No.20036/07 https://hcservices.ecourts.gov.in/hcservices/ M. Thangabushpam .. Petitioner in WP.No.20048/07 V. Rangarajan .. Petitioner in WP.No.20061/07 V. Chandra Babu .. Petitioner in WP.No.20062/07 Usha Muthu Krishnan .. Petitioner in WP.No.20063/07 K. M. Samy .. Petitioner in WP.No.20323/07 N. Sermaraj .. Petitioner in WP.No.20810/07 P. Muninathan .. Petitioner in WP.No.21470/07 Versus Tamil Nadu Housing Board rep. By Executive Engineer-cum- Administrative Officer Anna Nagar Division Chennai – 600 040 .. Respondents in WP.No.18610/07 and 19495/2007 ..2nd Respondent in WP.No.18804/07, 19223/07, 19261 to 19267/07, 19594/07, 19603/07, 19901/07, 19960/07, 20036/07, 20048, 20061 to 20063, 20323 & 20810/07 and 21470/07. The Managing Director, Tamil Nadu Housing Board Anna Nagar Division, Chennai 101. ...1st Respondent in WP.No.18804/07, 19223/07, 19261 to 19267/07 The Chairman, Tamil Nadu Housing Board, Nandanam, Chennai 35. ...1st respondent in WP.19594/07 The Managing Director, Tamil Nadu Housing Board, Nandanam Chennai 35. ..1st Respondent in WP.19603/07, WP.19901/07, 19960/07, 20061/07, 20062/07, 20063/07, 20810/07, 20036/07, 20048/07 Writ petitions filed under Article 226 of the Constitution of India to issue writs of (I) Certiorari calling for the records relating to the Letter No.A.Na.Ko/Survey /92/75 dated 15.5.2007 issued by the respondent and quash the same (in WP.No.18610 of 2007) https://hcservices.ecourts.gov.in/hcservices/ II Mandamus (a) directing the respondents to consider and dispose of the representation of the petitioner dated 6.1.2003 seeking fr allotment of the land under his occupation viz., Door No.551/1, EVR Street, Poonamallee High Road, Arumbakkam Chennai 106, Comprised in T.S.No.2/Part in Block No.4, of Arumbakkam, Chennai 106 (in WP.No.18804/07) (b) restraining the respondent therein men, agents and any one acting on their behalf from interfering with the peaceful possession and enjoyment of the petition property (in WP.No.19495/07) III Certiorarified mandamus calling for the records relating to the order of the 2nd respondent in Letter No. A.Na.Ko/Survey/92/75 dated 30.5.2007 quash the same and consequently (i) forbear the 2nd respondent from interfering with the possession and enjoyment of the petitioner in respect of land and building at Block no.4, T. S. no. 2, Door No. 551/17, Ambedkar Nagar, EVR Periyar Road, Arumbakkam Chennai 106 (in WP.No.19223/07) (ii) direct the respondents to allow the portion in occupation of the petition in Door No.551/6 & 7, EVR Road, Poonamalli high Road, Arumbakkam, Chennai 106 in favour of the petitioner on receipt of the market value of the land (in WP.no.19261/07) (iii) direct the respondents to allow the portion in occupation of the petition in Door No.551/10-A, EVR Road, Poonamalli high Road, Arumbakkam, Chennai 106 in favour of the petitioner on receipt of the market value of the land (in WP.no.19262/07) (iv) direct the respondents to allow the portion in occupation of the petitioner in Door No.551/24, EVR Road, Poonamalli high Road, Arumbakkam, Chennai 106 in favour of the petitioner on receipt of the market value of the land (WP.no.19263/07) (v) direct the respondents to allow the portion in occupation of the petitioner in Door No.551/18 - A, EVR Road, Poonamalli high Road, Arumbakkam, Chennai 106 in favour of the petitioner on receipt of the market value of the land (in WP.no.19264/07) (vi) direct the respondents to allow the portion in occupation of the petitioner in Door No.551/13, EVR Road, Poonamalli high Road, Arumbakkam, Chennai 106 in favour of the petitioner on receipt of the market value of the land (in WP.no.19265/07) (vii) direct the respondents to allow the portion in occupation of the petitioner in Door No.551/12, EVR Road, Poonamalli high Road, Arumbakkam, Chennai 106 in favour of the petitioner on receipt of the market value of the land (in WP.no.19266/07) (viii) direct the respondents to allow the portion in occupation of the petitioner in Door No.551/25, EVR Road, Poonamalli high Road, Arumbakkam, Chennai 106 in favour of the petitioner on receipt of the market value of the land (in WP.no.19267/07) https://hcservices.ecourts.gov.in/hcservices/ (ix) and further forbear the respondents herein from carrying out any form of eviction or demolition without following the statutory provisions of the Tamil Nadu Public Premises (Eviction of Unauthorized occupants) Act or any other statutory requirement (in WP.no.19594/07) (x) direct the respondents to allow the portion in occupation of the petitioner in Door No.551/10, EVR Road, Poonamalli high Road, Arumbakkam, Chennai 106 in favour of the petitioner on receipt of the market value of the land (in WP.no.19603/07) (xi) direct the respondents to consider the representation dated 29.5.2007 with in a reasonable period as may be fixed by this Court (in WP.No.19901/07) (xii) direct the respondents to allow the portion in occupation of the petitioner in Door No.551, EVR Road, Poonamalli high Road, Arumbakkam, Chennai 106 in favour of the petitioner on receipt of the market value of the land (in WP.no.19960/07) (xiii) direct the respondents to allow the portion in occupation of the petitioner in Door No.551/19, EVR Road, Poonamalli high Road, Arumbakkam, Chennai 106 in favour of the petitioner on receipt of the market value of the land (WP.no.20036/07) (xiv) direct the respondents to allow the portion in occupation of the petitioner in Door No.551/29, EVR Road, Poonamalli high Road, Arumbakkam, Chennai 106 in favour of the petitioner on receipt of the market value of the land (WP.no.20048/07) (xv) direct the respondents to allow the portion in occupation of the petitioner in each of the petitions herein in Door No.551/16, 551/15, 551/22A, 551/23, 551/20 & 21 respectively, EVR Road, Poonamalli high Road, Arumbakkam, Chennai 106 in favour of the petitioner on receipt of the market value of the land (in WP.no.20061 to 20063/07, 20323/07 and 20810/07) (xvi) direct the respondents to allow the portion in occupation of the petitioner in Door No.551/19A, in S.nos.249/1 to 6, 250/1 to 8, 251 and 252/2A, T.S.No.2, block No.4 in S.Nos.249/1 to 6, 250/1to 8, 251 and 252/2A TS.No.2, Block No.4, EVR Road, Poonamalli high Road, Arumbakkam, Chennai 106 in favour of the petitioner on receipt of the market value of the land (WP.no.19223/07, 19261/07 to 19267/07, 19594, 19603/07, 19901/07, 19960/07, 20036/07, 20048/07, 20061 to 20063/07 20323/07 and 20810/07 and 21470/07) For petitioner in WP.no.18610/07 : Mr. T. R. Rajaraman For petitioner in WP.no.18804/07 : Mr. A. Subramani For petitioner in WP.no.19223/07 : Mr. Vijaynarayan SC for M/s. P. Nehru K. V. Saneev Kumar. https://hcservices.ecourts.gov.in/hcservices/ For petitioner in WP.no.19261/07 : Mr. A.RL. Sundarasan SC for to 19267, 19603, 21470/07 M/s. A. L. Ganthimathi C.T. Murugappan For petitioner in WP.no.19495/07 : Mr. R. Subramaniyam For petitioner in WP.no.19594/07 : Mr. Prakash Goklancy For petitioner in WP.no.19901/07 : Mr. B. Divakaran For petitioner in WP.no.19960/07 : Mr. M. N. Baskran WP.no.20810/07 For petitioner in WP.no.20036/07 : 20048/07, 20061 to 20063/07 20323/07 Mr. J. J. R. Edward For Respondents in all the petitions : Mr. P. S. Raman Addl Advocate General for Mr. R. Girirajan Standing Counsel for Housing Board COMMON ORDER The case of the petitioners is as follows:- The petitioners are owners of the land and superstructure wherein they are residing/carrying on business for a long period. The respondents surprisingly affixed notices near their lands, then, the petitioners approached the respondents for copy of the said notices, but they refused to furnish the same, however, after perusal of copy of the notices issued to similarly placed persons they came to know that it is alleged that the petitioners encroached the property of the respondents and they were called upon to handover possession within the stipulated short period. The said notices are illegal and without jurisdiction. Under Section 84 of the Tamil Nadu Housing Board Act, power is vested with the housing board to evict certain persons mentioned in 84 (1) (a) (i) (ii) and (iii) (d) but the petitioners does not come under the purview of Section 84 (1) (a) of the Act, hence, the said notices are untenable. Before resorting to eviction, the mandatory provisions of Section 84 (2) of the said Act has not been complied with by the respondents by issuing notice under Section 84 (1) of the Act. The petitioners have spent substantial amount for putting up superstructure, however, without prejudice to their right, they are ready and willing to purchase the lands, which is in their occupation, at the prevailing market rate and prayed for quashing of the impugned notices and allow the writ petitions. 2. The case of the respondents is as follows:- The lands in Old Survey Nos. 249/1 to 6, 250/1 to 8, 251 and 252/2A in T.S. No.2, Block No.4, Arumbakkam Village, Egmore-Nungambakkam Taluk, were acquired by the acquisition body following Land Acquisition Act. The Tamil Nadu Housing Board, hereinafter referred to as Board had invested huge public money for acquiring the same in order to utilise the https://hcservices.ecourts.gov.in/hcservices/ said lands for suitable housing scheme for residential and commercial purpose. The Board is a statutory body and its main object is to develop the lands and implement the housing scheme for the people belonging to economically weaker sections (EWS), lower income group (LIG), middle income group (MIG) and higher income group (HIG). In order to implement and develop housing schemes, the Tamil Nadu Housing Board has obtained financial assistance from World Bank, HUDCO and other financial institutions. The Housing Board has to allot houses or house site through lot. The petitioners are unauthorised encroachers of the lands of the housing board. Due to the encroachment by the petitioners, the Board is not in a position to implement the schemes in time, as a result, it incurred great financial loss and hardship, which ultimately defeats the main object of the Board. Some of the encroachers were evicted on 26.05.2007. The petitioners vendors suppressing the real fact that the lands belonged to the Board clandestinely executed sale deeds. There is no necessity to issue notices under Section 84 of the Tamil Nadu Housing Board Act, however, formal notices were issued and affixed in the sites in the locality and the respondents are empowered to issue such notices to the encroachers. The petitioners and their vendors, if any are land grabbers and knowing well that the lands belonged to the Board, false sale deeds were executed and the lands were occupied by the petitioners. Some of the petitioners and their vendors or their predecessors have filed similar cases which were dismissed, the details of the same are furnished below. The possession of the petitioners are unlawful and there cannot be any injunction or other similar relief be granted against the housing board, who is the true owner and prayed for dismissal of the writ petitions. 3. The learned counsel appearing for both sides reiterated the contents of their pleadings and their arguments were considered and material records were perused. It is not in dispute that the petitioners herein are in occupation of the lands comprised in Old Survey Nos. 249/1 to 6, 250/1 to 8, 251 and 252/2A in T.S. No.2, Block No.4, Arumbakkam Village, Egmore-Nungambakkam Taluk, which are acquired for the West Madras Neighbourhood Scheme (Anna Nagar Scheme) by the respondents by invoking the provisions of Land Acquisition Act, 1894 and award No.14 of 1966 and 15 of 1966 dated 28.03.1966 were passed, later, the said lands were handed over to the Board 4. The petitioners in WP Nos. 19261 to 19266 of 2007, 19490, 19901, 20036, 20048, 19960, 20061, 20062, 20063, 20810 and 20323 of 2007 or their predecessor had already filed writ petitions before this Court as well as suits before the Civil Court either challenging the acquisition proceedings or consequential eviction proceedings initiated by the respondents, which were dismissed and the details of the same are mentioned below, which are not disputed by the respective petitioners. WP No. Name of the petitioner Previous WP- dismissed on Writ appeal dismissed on Suit No. dismissed on 19261/2007 Premavathy WP 18535/98 15.03.99 WA 508/99 25.07.2000 OS 2711/99 21.03.200 0 https://hcservices.ecourts.gov.in/hcservices/ WP No. Name of the petitioner Previous WP- dismissed on Writ appeal dismissed on Suit No. dismissed on 19262/2007 M.S.Chandra- sekar WP 18535/98 15.03.99 WP 7561/02 20.03.02 WA 508/99 25.07.2000 OS 2566/99 31.07.2001 19263/2007 A. Suresh WP 19902/07 09.06.07 - - - - 19264/2007 M. Ravi- chandran WP 18535/98 15.03.99 WA 508/99 25.07.2000 OS 2711/99 21.03.2000 19265/2007 S. Thanga Mariappan WP 8040/02 22.03.02 - - - - 19266/2007 Thenmami Ammal WP 8040/02 22.03.02 - - - - 19490/2007 D. Vinayagam - - - - OS 5563/2000 26.12.2001 19901/2007 J. Vincent WP 26109/03 (disposed) - - OS 5568/2000 26.12.2001 AS.287/2002 06.06.2003 20036/2007 Valarmathi WP 4060/04 11.03.04 - - - - 20048/2007 M. Thanga Pushpam - - - - OS 5567/2000 26.12.2001 19960/2007 Vijayammal - - - - OS 5565/2000 26.12.2001 20061/2007 V.Ranga-rajan - - - - OS 5564/2000 26.12.2001 20062/2007 V.Chandra-babu - - - - OS 5562/2000 26.12.2001 20063/2007 Usha Muthu Krishnan WP 18535/98 15.03.99 WA 508/1999 25.07.2000 - - 20810/2007 M. Sermaraj WP 7562/02 20.03.02 - - - - 20323/2007 K.M. Samy WP 18535/98 15.03.99 WA 508/1999 25.07.2000 OS 5569/2000 26.12.2001 5. In view of the admitted position that the earlier litigations were dismissed, seeking the very same relief the present writ petitions are filed, hence, they are liable to be dismissed. https://hcservices.ecourts.gov.in/hcservices/ 6. It is alleged by the petitioners in WP Nos. 19267, 18804, 19223, 19594, 19603, 18610 and 21470 of 2007 that they have not filed any earlier writ petitions or suits and first time these writ petitions are filed, which cannot be entertained for the reasons mentioned below. 7. The petitioners alleged that the possession of the acquired lands are with them for a long period, hence, they cannot be evicted without due process of law. The possession of the acquired lands could be taken only by way of Memorandum or Panchanama or Mahazar or any other name or nomenclature which is legally accepted norm. It would not be possible for the acquisition body or the requisition body to take physical possession of the land immediately, in such event, subsequent continuation of possession, if any, had by the erstwhile owner or the occupier is only illegal or unlawful possession which does not bind either the acquisition body or the requisition body. In this context, it would be relevant to refer to the decision of the Honourable Supreme Court reported in i) (State of T.N. vs. Mahalakshmi Ammal, (1996) 7 SCC 269 wherein in Para No.9, the Honourable Supreme Court held thus: " 9. It is well-settled law that publication of the declaration under Section 6 gives conclusiveness to public purpose. Award was made on 26-9-1986 and for Survey No. 2/11 award was made on 31-8-1990. Possession having already been undertaken on 24-11- 1981, it stands vested in the State under Section 16 of the Act free from all encumbrances and thereby the Government acquired absolute title to the land. The initial award having been made within two years under Section 11 of the Act, the fact that subsequent award was made on 31-8-1990 does not render the initial award invalid. It is also to be seen that there is stay of dispossession. Once there is stay of dispossession, all further proceedings necessarily could not be proceeded with as laid down by this Court. Therefore, the limitation also does not stand as an impediment as provided in the proviso to Section 11-A of the Act. Equally, even if there is an irregularity in service of notice under Sections 9 and 10, it would be a curable irregularity and on account thereof, award made under Section 11 does not become invalid. Award is only an offer on behalf of the State. If compensation was accepted without protest, it binds such party but subject to Section 28-A. Possession of the acquired land would be taken only by way of a memorandum, Panchnama, which is a legally accepted norm. It would not be possible to take any physical possession. Therefore, subsequent continuation, if any, had by the erstwhile owner is only illegal or unlawful possession which does not bind the Government nor vested under Section 16 divested in the illegal occupant. Considered from https://hcservices.ecourts.gov.in/hcservices/ this perspective, we hold that the High Court was not justified in interfering with the award." (ii) (State of H.P. vs. Tarsem Singh and others) 2001 8 SCC 104 wherein the Honourable Supreme Court held in para-7 thus:- " 7. In the aforesaid two cases, Entry 21 of List II of the Seventh Schedule of the Government of India Act and Entry 18 of List II of the Seventh Schedule of the Constitution of India were relied upon for the purpose of holding that there was a legislative competence while enacting the Land Acts. The question whether vesting of all interests and rights in the land free from all encumbrances would also include easementary right, was not the subject- matter of decisions and, therefore, the said decisions have no application in the present case. Section 3 of the Act provides that, notwithstanding any custom, usage, instrument, agreement or decree of the court, all titles, interests and rights in the land shall stand extinguished and all such rights, title and interests shall vest in the State free from all encumbrances. Learned counsel, when argued that easementary right being over the land has not vested in the State, omitted to consider the significance of the expression “free from encumbrances”. The word “encumbrance” means a burden or charge upon property or a claim or lien upon an estate or on the land. “Encumber” means burden of legal liability on property, and, therefore, when there is encumbrance on a land, it constitutes a burden on the title which diminishes the value of the land. In Abdul Karim Khan v. Managing Committee, George High School it was held that encumbrance would include easementary right of drainage over the land. In Rashid Allidina v. Jiwandas Khemji it was laid down that the word “encumbrance” has always been understood to include easementary right. In Ganga Vishnu Swaika v. Machine Mfg. Co. Ltd. it was ruled that an easementary right to discharge water on other’s land comes within the meaning of encumbrance on the right in the land. " 8. As mentioned above, some of the petitioners, for the first time filed writ petitions challenging the eviction order, such writ petitions also not maintainable. It is well settled that once award is passed, no writ petition can be filed challenging the acquisition proceedings or any proceedings thereunder. Followed (Municipal Council, Ahmednagar v. Shah Hyder Beig, (2000) 2 SCC 48, in Para No.17, it was held thus:- https://hcservices.ecourts.gov.in/hcservices/ 17. In any event, after the award is passed no writ petition can be filed challenging the acquisition notice or against any proceeding thereunder. This has been the consistent view taken by this Court and in one of the recent cases (C. Padma v. Dy. Secy. to the Govt. of T.N) this Court observed as below: (SCC p. 628, para 4) “ 4 . The admitted position is that pursuant to the notification published under Section 4(1) of the Land Acquisition Act, 1894 (for short ‘the Act’) in GOR No. 1392 Industries dated 17-10- 1962, total extent of 6 acres 41 cents of land in Madhavaram Village, Saidapet Taluk, Chengalpattu District in Tamil Nadu was acquired under Chapter VII of the Act for the manufacture of Synthetic Rasina by Tvl. Reichold Chemicals India Ltd., Madras. The acquisition proceedings had become final and possession of the land was taken on 30-4-1964. Pursuant to the agreement executed by the company, it was handed over to Tvl. Simpson and General Finance Co. which is a subsidiary of Reichold Chemicals India Ltd. It would appear that at a request made by the said company, 66 cents of land out of one acre 37 cents in respect of which the appellants originally had ownership, was transferred in GOMs No. 816 Industries dated 24-3-1971 in favour of another subsidiary company. Shri Rama Vilas Service Ltd., the 5th respondent which is also another subsidiary of the Company had requested for two acres 75 cents of land; the same came to be assigned on leasehold basis by the Government after resumption in terms of the agreement in GOMs No. 439 Industries dated 10-5- 1985. In GOMs No. 546 Industries dated 30-3- 1986, the same came to be approved of. Then the appellants challenged the original GOMs No. 1392 Industries dated 17-10-1962 contending that since the original purpose for which the land was acquired had ceased to be in operation, the appellants are entitled to restitution of the possession taken from them. The learned Single Judge and the Division Bench have held that the acquired land having already vested in the State, after receipt of the compensation by the predecessor-in-title of the appellants, they have no right to challenge the notification. Thus the writ petition and the writ appeal came to be dismissed.” https://hcservices.ecourts.gov.in/hcservices/ 9. Some of the petitioners submitted that they have filed civil suit in which they obtained injunction. Some of them alleged that against the judgment of dismissal of the suit they are taking steps to file appeal or first appeal filed which is pending or second appeal is pending. After acquisition proceedings are over, the land vest with the Government or requisition body, hence no suit against them is maintainable. 10. After acquisition, as mentioned above, the property stood divested from whomsoever it belongs earlier, thereafter, no one can lay any claim to the said acquired land once over as the land ultimately stood over and vested with the Board. Thus, the person in occupation be treated as trespasser, who cannot claim any remedy against the owner nor can the court issue the same. Followed Tamil Nadu Housing Board v. A. Viswam, (1996) 8 SCC 259 wherein in Para-12, it was stated thus:- " 12. Thus considered, the title of the land in Survey No. 140/4 having been vested in the appellant, to whomsoever it belonged earlier, it stood divested from him/them and no one can lay any claim to the said acquired land once over and claim injunction on that basis. The injunction, therefore, cannot be issued against the true owner, namely, the Housing Board in whom the land ultimately stood vested and then stood transferred to the Municipal Corporation. A trespasser cannot claim injunction against the owner nor can the court issue the same. " 11. In view of the said fact, the properties covered in these writ petitions are vested with the Board and all rights, title and interest, including the easementary rights of the owners and occupiers stood extinguished and all such right, title and interest vest in the Board free from all encumbrances as held by the Honourable Supreme Court in the decisions mentioned supra. 12. For the said reasons, all the writ petitions are dismissed. No costs. Consequently, connected miscellaneous petitions are closed. 13. The learned counsel appearing for the petitioners submitted that the petitioners are in occupation of the said lands for a substantial period, hence, sufficient time may be granted to them to remove their belongings and to deliver vacant possession. Considering the same, time of six months is granted from today to enable the petitioners to deliver vacant possession of the property to the respondents provided they submit an affidavit of undertaking to that effect to the respondents