IN THE HIGH COURT JUDICATURE AT MADRAS DATED : 09.12.2009 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.409 of 2008 B.Arunajothy ..Petitioner Vs 1. 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. ..Respondents Writ petition filed under Article 226 of the Constitution of India praying for a writ of certiorarified mandamus calling for the records in proceedings No.Va.Va.4406/07 on the file of the second respondent dated 13.07.2007 and quash the same and consequently transfer the allotment with respect to the subject premises bearing Flat No.9D, New Tower Block, Nandanam, which was allotted to the name of the late husband of the petitioner to the name of the petitioner. For Petitioner : Mr.R.Krishnamurthy, Sr.Counsel for Mr.V.Ayyadurai For RR 1 to 3 : Mr.A.Vijayakumar https://hcservices.ecourts.gov.in/hcservices/ ORDER Heard both sides. 2. The writ petition is directed against the order of the 2nd respondent dated 13.07.2007 by which the 2nd respondent while refering to a show cause notice issued by the 3rd respondent dated 09.04.2007 and the subsequent explanation submitted by the petitioner dated 25.04.2007, has passed orders holding that as per the procedures of the Housing Board, there is no provision for transferring the allotment of Housing Board Quarters given on rent to the legal heirs after the death of the original allottee by quoting resolution of the Board No.11.04 dated 21.07.1997. 3. Accordingly, by exercising the powers under section 84[1] of the Tamil Nadu Housing Board Act, 1961, the allotment given in respect of Door No.9D to the petitioner's husband, stood cancelled. It is the case of the petitioner that the petitioner's husband was allotted the said residential quarters-9D, in the year 1989 under the public quota. After the original allottee, viz., the petitioner's husband died in the year 1991, the petitioner as the legal heir of the deceased allottee, has been allowed to continue to occupy for nearly 16 years. It was on 09.04.2007, the 3rd respondent who is the competent authority under the Tamil Nadu Housing Board Act, for issuing notices and conducting enquiry of eviction of unauthorised occupants, has issued the show cause notice to the petitioner stating that the petitioner is an unauthorised occupant and she should submit her explanation either in person or by registered post within fifteen days. Accordingly, the petitioner has submitted her explanation on 25.04.2007 quoting some of the instances wherein the legal representatives of the deceased allottees have been considered for continuation of the allotment. It was thereafter, without conducting any enquiry, the 2nd respondent has passed the impugned order dated 13.11.2007 as stated above. 4.Mr.R.Krishnamurthy, learned senior counsel appearing for the petitioner, by referring to the provisions of section 84 of the Tamil Nadu Housing Board Act, 1961, would submit that the said Act contemplates not only the issuance of show cause notice and also permitting the occupant to give explanation, but also an enquiry is contemplated since a right has been given to the occupant to furnish evidence. He would also refer to the guidelines issued by the Tamil Nadu Housing Board based on the powers under the Act which contemplates the enquiry wherein personal enquiry is contemplated. Therefore, according to the learned senior counsel that inasmuch as the personal enquiry has not been conducted and no opportunity was given to the petitioner to appear in person to substantiate her case. It is in violation of principles of natural justice and in violation of 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 the Appellate Authority u/s.86 of the Act. 5.On the other hand, it is the case of the respondents as stated in the counter affidavit filed by the respondents, that as per the Policy of the Housing Board, a decision was taken as early as on 21.07.1997 by passing resolution that the legal heirs are not empowered to have succession of right of occupancy and the said circular has been challenged in various proceedings and upheld by this court. It is the further case, as it is seen in the counter affidavit that when an adequate alternate remedy of appeal is available u/s.86 of the Act, the present writ petition has to be dismissed by directing the petitioner to file the appeal. It is the contention of the learned counsel for the respondents that when once an opportunity was given to the petitioner to submit her explanation and accordingly, she has submitted her explanation, the concept of enquiry comes to an end and therefore, the impugned order passed by the 2nd respondent cannot be found fault with. 6.On a reference to the impugned order, it is seen that the same has been passed by the 2nd respondent. It is not the case of the respondent Housing Board that the 2nd respondent is the competent authority for enforcing the statutory function u/s.84 of the Tamil Nadu Housing Board Act for eviction. On the other hand, the 3rd respondent 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] of the Act and it is for that show cause notice, the petitioner has submitted her explanation on 25.04.2007 to the 3rd respondent, of course, raising various defences including that in other cases, the legal heirs have been allotted and so on. Surprisingly, the 2nd respondent who is not the authority competent u/s.84 of the Act, has passed the impugned order. On this score itself, the impugned order is liable to be set aside. 7.In any event, the further question to be considered is as to whether the order passed by the 2nd respondent is in accordance with section 84 of the Act. Section 84 of the Act reads as follows:- "84.Power to Evict certain persons from Board Premises:- [1]If the competent authority is satisfied - [a] that the person authorized to occupy any Board premises has- [i]not paid rent lawfully due from him in respect of such premises for a period of more than two months; or https://hcservices.ecourts.gov.in/hcservices/ [ii]sublet without the permission of the Board, the whole or any part of such premises; or [iii]otherwise acted in contravention of any of the terms, express or implied, under which he is authorised to occupy such premises; or [b]that any person is in unauthorised occupation of any Board premises, the competent authority, may nothwithstanding anything contained in any for the time being in force, by notice served [i]by registered post or [ii]by affixing a copy of it on the outer door or some other conspicuous part of such premises or [iii]in such other manner as may be prescribed, order that the person authorized to occupy as well as any other person who may be in occupation of the whole or any part of the premises shall vacate them within one month of the date of service of the notice. [2]Before an order under sub-section [1] is made against any person, the competent authority shall inform the person, by notice in writing and served in the manner provided for service of notice under sub- section [1] of the grounds for which the proposed order is to be made and give him a reasonable opportunity for tendering an explanation and producing evidence, if any, and to show cause why such order should not be made within a period to be specified in such notice. [3]The competent authority may, on application, grant extension of the period specified in such notice on such terms as to payment and recovery of the amount claimed in the notice as he deems fit. [4]Any written statement put in by such person and document produced in pursuance of such notice shall be filed with the records of the case, and such person shall be entitled to appear in the proceedings either in person or by pleader. https://hcservices.ecourts.gov.in/hcservices/ [5]If any person refuses or fails to comply with an order made under sub-section [1], the competent authority may evict that person from and take possession of the premises and may for that purpose use such force as may be necessary. [6]If a person, who has been ordered to vacate any premises, under sub-section [1] or [iii] of clause [a] of sub-section [1] within one month of the date of service of the notice or such longer time as the competent authority may allow, pay to the Board the rent in arrears or caries out or otherwise complies with the terms contravened by him to the satisfaction of the competent authority, as the case may be, the competent authority, shall, in lieu of evicting such person under sub-section [1], cancel its order made under sub-section [1] and thereupon such person shall hold the premises on the same terms and on which he held them immediately before such notice was served on him." 8.The above section contemplates not only a right of explanation by the party concerned, but also confers a right on that person to produce evidence. Such right to produce evidence is possible only if the party is given an opportunity to participate in the hearing which can be done only in the form of an enquiry. In fact, the guidelines issued by the Tamil Nadu Housing Board in respect of cancellation and eviction, as it is seen in Chapter XIV, makes it clear that an enquiry shall be conducted by the competent authority after submission of explanation by the person concerned. The procedure to be followed in respect of carrying out eviction are spelt out in Chapter XIV which reads as follows:- "The procedures to be followed for carrying out eviction are as follows:- 1.A notice in Form-E as specified in the Tamil Nadu Housing Board Act, 1961, shall be issued. 2.The Form-E notice shall contain the details of the periods of arrears, specific conditions which are violated etc. The details shall be correctly mentioned. 3.The allottee/person in occupation must be given reasonable time under section 84[2] for submitting 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 fixed after receipt of explanation from the allottee/person in possession of the flat/house. The allottee/person in possession of the flat/house or his/her counsel or persons representing them shall appear in person at the time of enquiry and produce their evidence. 5.The enquiry shall be conducted if the allottee/person in possession of the flat/house or hi/her counsel or persons representing them appear or posted for another day for their appearance. If any statements and records are submitted then they shall be received and recorded. 6.The competent authority shall after the receipt of the explanation, statement and records and shall pass orders. The reason for arriving at the conclusion shall be clearly mentioned in the order and it shall be communicated. And if the explanation is ruled out then it shall also mention that the occupation is unauthorized. 7.The competent authority while communicating the order or immediately or thereafter, shall communicate the order under sec.84[1] in Form deceased, as in Tamil Nadu Housing Board Act, 1961. 8.The order shall clearly allow 30 days time to vacate the premises. If the person fails to vacate the premises the competent authority shall evict the person; if necessary even force can be used after taking protection from police. After eviction is carried out, the premises may be locked and sealed. Later, the lock may be broken open in the presence of Police Officials and with a minimum of two witnesses and the inventory of the belongings of the allottee / person occupying the premises shall be taken and counter signature of the Police Officer and the witnesses shall be obtained for all the activities. The Executive Engineer concerned, may be asked to take possession of the premises as well as the articles found in the premises for safe custody. And a detailed report shall be submitted to the officer concerned. 9.If the eviction is for the arrests of rent or for violation of conditions and the allottee pays the arrears of rent within a month then the competent authority shall cancel eviction order." https://hcservices.ecourts.gov.in/hcservices/ 9.The procedures which are stipulated are in consonance with section 84[2] of the Tamil Nadu Housing Board Act which contemplate an enquiry. In the absence of any enquiry conducted by the competent authority, viz., the 3rd respondent, it is not possible to accept the contention of the learned counsel for the respondents that merely an opportunity has been given to the petitioner to file her explanation and that is sufficient for confirming the principles of natural justice. In the circumstances, when the principles of natural justice have been violated, it is not necessary for this court to drive the petitioner to approach the Appellate Authority by filing an appeal u/s.86 of the Act. It is further relevant to point out that even u/s.84[1][a] of the Act, which is as follows:- 84.Power to Evict certain persons from Board Premises:- [1]If the competent authority is satisfied - [a] that the person authorized to occupy any Board premises has- [i]not paid rent lawfully due from him in respect of such premises for a period of more than two months; or [ii]sublet without the permission of the Board, the whole or any part of such premises; or [iii]otherwise acted in contravention of any of the terms, express or implied, under which he is authorised to occupy such premises;" Three circumstances are contemplated for the purpose of eviction of the person by the competent authority. A relevant point is raised by the learned senior counsel for the petitioner that the issue involved in this case does not cover under any one of the three circumstances as stated above and these are the matters which could have been elicited by the petitioner only after proper enquiry was conducted by the competent authority. https://hcservices.ecourts.gov.in/hcservices/ 10.In such circumstances, the impugned order passed by the 2nd respondent dated 13.07.2007 is set aside, however, with liberty to the respondents to take appropriate steps in accordance with law, if so advised. The writ petition is allowed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ap To 1. 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 2008 KS (CO) GSK 17.12.2009. https://hcservices.ecourts.gov.in/hcservices/