IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.04.2011 CORAM: THE HONOURABLE Mr.JUSTICE M.VENUGOPAL W.P.No.6613 of 2003 M.Lourdhuraja .. Petitioner ...Vs... 1.The Secretary to Government Department Housing and Urban Development Department Secretariat Fort St.George Madras-600 009. 2.The Executive Engineer and Administrative Officer Tamilnadu Housing Board Jawahar Street Extension Gandhi Nagar Madurai-625 020. 3.The Executive Engineer Tamil nadu Slum Clearance Board Bibi kulam Madurai – 625 002 .. Respondents Prayer: Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorari calling for the records relating to the order dated 07.11.2002 passed under G.O.(D) No.786, by the Secretary to Government, Housing and Urban Development Department, Fort St.George, Madras-600 009, the first respondent herein, confirming the order dated 22.11.1999 passed in Lr.No.9574/97 on the file of the Executive Engineer and Administrative Officer, Tamilnadu Housing Board, Madurai, the second respondent herein and to quash the same. For Petitioner : Mr.Y.Prakasm for Mr.S.Subbiah For Respondents 1 and 2 : Mr.A.Vijayakumar (TNHB) For Third Respondent : Mr.Y.Bhuvanesh Kumar https://hcservices.ecourts.gov.in/hcservices/ ORDER The Petitioner has filed the present Writ Petition seeking the relief of Writ of Certiorari in calling for the records pertaining to the order dated 07.11.2002 passed under G.O.(D)786, by the Secretary to Government, Housing and Urban Development , Fort St.,George, Madras-600009, passed by the First Respondent/Secretary to Government, Housing and Urban Development Department, Secretariat, Chennai, confirming the order, dated 22.11.1999 passed in Lr.No.9574/1997 on the file of the Second Respondent/Executive Engineer and Administrative Officer, Tamil Nadu Housing Board, Madurai. 2.According to the Petitioner, he along with his family members are in occupation and enjoyment of the property bearing S.No.2720, Jawaharpuram, K.Pudur, Madurai-625 007 from the year 1961. 3.Earlier, the aforesaid property has been in a low lying area and the father of the Petitioner out of his own efforts and exertion levelled the property at a higher expense. He has put up a thatched shed to an extent of 40x20 and later converted into a tiled house. As regards the construction, there is no obstruction or objection from any quarters after the date of coming into possession of property. Land revenue is paid to the Government in respect of the Petitioner's property apart from the payment of House Tax, Electricity charges and Water tax. He is in effective, continuous and peaceful possession and enjoyment of the property. 4. The Petitioner is shocked to receive a communication dated 14.02.1989, from the Second Respondent stating that his property belonged to the Second Respondent and he has to vacate the said property by 28.02.1989, failing which he will be evicted forcibly. 5.It is the stand of the Petitioner that the Second Respondent has no authority to issue a notice dated 14.02.1989 and thereby to evict the Petitioner. As a matter of fact, the Tamil Nadu Slum Clearance Board has formulated a scheme in respect of the slum dwellers and allotted plots to the occupants in the locality. 6.A plot in Door No.191 to an extent of 79.72 Sq.metres has been allotted to the Petitioner and the Door No.192 has been allotted in favour of the Petitioner's father. Likewise, about 413 plots have been allotted to the various occupants in that locality. 7.The Land in dispute has been vested with the Tamil Nadu Slum Clearance Board which is constituted as per Section 34 of the Tamil Nadu Slum Clearance Act, 1972, No.XI of 1971. The plot has been allotted in favour of the Petitioner and the Sale Price of the land has been determined at Rs.5,182/- (Rupees Five Thousand One Hundred https://hcservices.ecourts.gov.in/hcservices/ and Eighty Two Only) by the proceedings of the Chairman, Tamil Nadu Slum Clearance Board in A8/038/93/E dated 18.12.1997 and the said order has been issued by the Third Respondent/Executive Engineer, Tamil Nadu Slum Clearance Board. 8.The Petitioner has paid the initial amount of Rs.518/- on 18.02.93 and a receipt bearing No.127308 has been issued. The Government authorities and the Second Respondent are very much aware of the construction put up by the Petitioner. They have recognised the possession of the Petitioner over the said property by collecting revenue from the Petitioner. There are number of occupants in the Petitioner's locality who have put up the construction and paying the land revenue like that of the petitioner. 9.The Petitioner filed the suit in O.S.No.403 of 1989 on the file of the learned Principal District Munsif, Madurai seeking a relief of declaration that the said communication, dated 14.02.1989 as per reference No.LA/11825/87 issued by the Second Respondent is illegal and improper. The said suit filed by the Petitioner has been dismissed. As against the dismissal of the said suit, in O.S.No.403 of 1989, the Petitioner preferred appeal in A.S.No.155 of 1998 of the file of the learned Principal District Judge, Madurai. The Learned Principal District Judge in the judgment in A.S.No.155 of 1998 has observed that the suit is not maintainable as per Section 138 of the Tamil Nadu Housing Board Act. The Learned District Judge also opined that the Second Respondent has not followed the ingredients of Section 84(2) of the said Act and has given liberty to the Petitioner to take legal proceedings against the Respondents to safeguard the interest of the Petitioner and further liberty has been given to the Second Respondent to initiate appropriate legal proceedings for eviction by following the procedures prescribed under Section 84 of the Tamil Nadu Housing Board Act. 10. The Petitioner has filed his objections to the letter dated 12.08.1999 issued by the Second Respondent in Lr.LA/9574/97. During the course of enquiry conducted by the Second Respondent, the Petitioner has produced all the documents Viz. the tax Receipts, the allotment order passed by the Third Respondent to substantiate his valid possession. However, the Second Respondent has passed an erroneous order of eviction overlooking and ignoring all the facts. 11. The Second Respondent in the counter has averred that the Tamil Nadu Housing Board has taken over the land measuring for an extent of 8 acres and 24006 Sq.ft. from the Revenue Department on 23.10.1982 under Tamil Nadu Government Rental Housing scheme, bearing the T.S.No.2720/1 Block No.71 Ward No.10, Madurai North Village, Madurai North Taluk and Madurai District. Flats have been constructed and allotted to the Tamil Nadu Government Staff. Northern side of the scheme has been reserved for the park area, which has been encroached by S.Subbiah and M.Lourdhuraja (the Petitioner) who have constructed https://hcservices.ecourts.gov.in/hcservices/ pucca building. Action has been taken by the Tamil Nadu Housing Board to evict the encroachers. The encroachers filed the suit in O.S.Nos.403 of 1989 and 405 of 1989 on the file of Madurai District Munsiff Court against the Tamil Nadu Housing Board and a favourable judgement has been passed in favour of the Board. The encroachers again filed appeal in A.S.No.158/99 and 156/98 and they have been dismissed. Again the action has been taken by the Tamil Nadu Housing Board to evict the encroachers. Notice under Section 84(2) 1961 has been issued to the encroachers on 15.09.1999 and they have been requested to vacate. The encroachers have objected the eviction through their Advocate on 2.8.1999 and 12.09.1999. Objection Petition has been received from the encroachers and have been forwarded to the Tamil Nadu Housing Board's Legal Adviser with a request for their legal opinion. In the meeting held between the encroachers Advocate and Tamil Nadu Housing Board's Legal Adviser on 20.10.1999 the encroacher's request has been rejected. A notice under Section 84(1) of the Tamil Nadu Housing Board act had been issued to the encroachers determining the dates of eviction on 11.02.2000 and 07.03.2000 respectively with police bondobust by the Tamil Nadu Housing Board. Due to non availability of the Police Bondobast, eviction could not be carried out on those days. However, action has been taken by the Tamil Nadu Housing Board continuously to evict the encroachers. On 24.01.2001, the encroachers have obtained the stay order from this Court and this Court issued a direction to the First Respondent to consider and dispose off the Appeal within a period of eight weeks from the date of receipt of a copy of the Court order. Further the High Court has informed not to take follow up action in this regard. 12. The Land under encroachment and other land area for the construction of Tamil Nadu Government Servants rental Housing scheme has been handed over by the Revenue Department to the Tamil Nadu Housing Board only on 23.10.82. At the time of taking over the land the Petitioner/encroacher has not been actually in occupation of the land area in S.No.2720/1 pt. Jawahrapuram, K.Pudur. As such the statement of the Petitioner that he has been in occupation of the land area from the year 1961 is a false one. 13. According to the Second Respondent, the Petitioner has trespassed and therefore he is liable to be evicted from the encroached area and not entitled to any order as prayed for or an order of injunction against the respondent in T.S.No.2720/1 part, Madurai North belongs to the Government and the entire land in T.S.No.2720/1 part including the Petitioner's mentioned property has been handed over to the Tamil Nadu Housing Board by the District Collector, Madurai, for the construction of the houses to be allotted to the Government Servant under the Tamil Nadu Government Servants rental Housing scheme in pursuance of said scheme a suit property as well as other land in T.S.No.2720/1 part has been taken over by the Respondent on 23.10.82 from the Tahsildar, Madurai North for the https://hcservices.ecourts.gov.in/hcservices/ construction of flats. Also in the flats constructions have been made and it is called as D.R.O. Colony. At the time of taking over there is no building constructed in the Petitioner's encroached property. While that being the position, the allegation that the Petitioner levelled the property at huge cost and put up a thatched shed measuring 40'x20' is incorrect and a false one. The thatched shed has put up early in the year 1987. For this unauthorised occupation, a notice dated 02.07.1987 has been served by the Respondent to the Petitioner to remove the same or the same will be removed departmentally on 13.07.1987. The Petitioner has not removed the same inspite of the notice. A notice dated 14.02.1989 has been issued to the Petitioner by the Respondent to remove the unauthorised thatched shed before 28.02.1999.It is not necessary to issue a notice to the Petitioner because of the fact that it is an encroachment. 14.The fact that the Petitioner is paying the land revenue to the Government for the property apart from paying the House Tax, Electricity charges, water tax, the same will not cloth the Petitioner with a legal right. 15.Indeed, the Tamil Nadu Slum Clearance Board has formulated the scheme for the lands under their custody and now the land area is under the possession of the Tamil Nadu Housing Board. The Board has not made any allotment to anyone as mentioned by the Petitioner. The Land mentioned in paragraph 10 of the petition is not taken over by the Tamil Nadu Housing Board on 23.10.1982 from the Tahsildar, Madurai North Taluk, Madurai District and the land is still under the custody and possession of the Tamil Nadu Housing Board. 16.The Slum Clearance Board has no rights to allot the lands to the Petitioner because the land is now under the custody and possession of the Housing Board. The slum clearance board has no right to receive any payment from the Petitioner. The Government and the Tamil Nadu Housing Board have full rights to evict the unauthorised encroachment without giving any information to the encroachers since the land belongs to the Government and also under the custody of Tamil Nadu Housing Board. The action taken by the Tamil Nadu Housing Board as per Sections 84 and 86 of the Tamil Nadu Housing Board Act is in order. 17.The Third Respondent in his counter has stated that the Jawaharpuram Scheme Area in Madurai city has been taken for Development under the Tamil Nadu Urban Development Scheme. The advance amount has been collected from all the persons covered in the scheme area. Likewise, the advance amount has also been collected for plot nos. 190,191,192 and 195. Later it is found that the aforesaid four plots viz.Plot Nos.190, 191, 192 and 195 have not come under the approved plan LP/(MR)No.31/88 and therefore the collection of instalment amounts has been stopped. https://hcservices.ecourts.gov.in/hcservices/ 18. In regard to the Plot No.191, it has wrongly been allotted to the Petitioner. A sum of Rs.518/- has been collected as per receipt No.127308 dated 18.02.1993, Rs.50/- as per receipt No.162354 dated 22.12.1997 and Rs.50/- as per receipt No.48001 dated 10.04.1998 totalling to Rs.618/-. Since the lands have been wrongly allotted to the Petitioner and three others, which does not belong to the Tamil Nadu Slum Clearance Board, steps are being taken to cancel the allotment and refund the amounts collected from the Petitioner. 19.It is to be noted that the Petitioner's father had been issued with the notice dated 25.03.1963 as per Section 7 of the Tamil Nadu Land Encroachment Act 1905. The Petitioner has filed the xerox copies of the tax receipts dated 05.06.1981, 26.03.1983, 01.04.1984, 10.02.1985, 02.03.1986,10.02.1988 and 11.09.1989. A sum of Rs.518/- has been received from the Petitioner as per receipt No. 127308 dated 18.02.1993, issued by the Third Respondent/Tamil Nadu slum Clearance Board. As seen from the Third Respondent's proceedings dated 18.12.1997, the Petitioner has been issued the allotment order in respect of plot No.191 measuring an extent of 79.72 square metres. The total amount to be paid by the Petitioner is Rs.5182 (Rupees Five Thousand One Hundred and Eighty Two only). As a first instalment, the Petitioner has paid sum of Rs.518/- a sum of Rs.50/- has to be paid as monthly instalment for the balance monthly amount to be paid by the Petitioner. 20.It is an axiomatic fact that as per Section 7 of the Tamil Nadu Land Encroachment Act 1905, notice is mandatory. A forcible eviction by a revenue authority without following legal requirements is bad in law as per decision Satish D V. Tahsildar, Sirkali (1998 3 CTC 215) 21.As per Section 6 of the Tamil Nadu Land Encroachment Act 1905 (T.N.Act III of 1905) unless, procedures are adhered to, the building cannot be demolished as per decision V.Arunagiri and others V. The Divisional Engineer, National Highways, Thiruvannamalai and another ((1999) 1 MLJ page 308). 22.In terms of Section 10 of the Act, an Appeal can be filed to the Collector from any decision or order passed by a Tahsildar or Deputy Tahsildar under this Act etc. Section 10 A speaks of revision either suo motu or an application against any decision or order passed under this Act. 23.Section 11 enjoins limitations for filing of an Appeal and Revision which runs hereunder: (1) No appeal shall be preferred under Section 10 after the expiration of thirty days from the date on which the decision or https://hcservices.ecourts.gov.in/hcservices/ order appealed against was received by the appellant. (2) No application for revision shall be preferred under sub-sections(1) of Section 10-A after the expiration of thirty days from the date on which the decision or order sought to be revised was received by the applicant. (3) In computing the period of thirty days referred to in sub-sections(1) and (2), the time required to obtain a copy of the decision or order appealed against or sought to be revised shall be excluded. (4) Notwithstanding anything contained in sub-sections(1) and (2), the officer or authority concerned or the State Government may admit an appeal or application preferred after the period specified therein, if such officer or authority or Government is or are satisfied that the appellant or applicant had sufficient cause for not preferring the appeal or application within that period]. 24. The Petitioner has figured as a First Plaintiff in O.S.No.403 of 1989 on the file of the learned District Munsif, Madurai town. The Second plaintiff in the said suit is Mokshanandam. In the said suit, the Second and the Third Respondents have been arrayed as Defendants 1 and 2 in the suit in O.S.No.403 of 1989 on the file of the learned District Munsif, Madurai Town. In all three issues have been framed in adjudication in a said suit. A categorical finding has been given to the effect that the First Plaintiff (1st Writ Petitioner) and the Second Plaintiff was the alleged encroachers of the suit property and resultantly the suit has been dismissed by directing the parties to bear their own costs. 25. After the death of the Second Plaintiff, his Legal Representatives have been brought on record, before the First Appellate Authority. The learned Principal District Judge, Madurai has framed in all 1 to 5 points for determination and finally held that the suit filed by the Plaintiff's is not maintainable. The relief of Declaration and permanent injunction, have not been granted. However, liberty is given to the defendants to take appropriate legal proceedings afresh against the Plaintiffs for eviction by following the procedures laid down under Section 86 of the Tamil Nadu Housing Board Act according to law. Also a liberty is https://hcservices.ecourts.gov.in/hcservices/ granted to the Plaintiff to take any legal proceedings against the Defendants to safeguard their interests and consequently dismissed the Appeal on 30.06.1999. 26.The Second Respondent issued a notice dated 12.08.1999 to the Writ Petitioner requiring him to remove the encroachment of construction of house as per Section 84(2) of the Tamil Nadu Housing Board Act and has directed the Petitioner to approach the Second Respondent directly or in writing and to submit his explanation, failing which the further proceedings will be taken. Accordingly the Writ Petitioner has filed his detailed objections on 12.09.1999. The Petitioner has been required to remove the encroachment as per notice dated 22.11.1999 of the Executive Engineer, The Tamil Nadu Housing Board, Madurai and in the said order of eviction it is mentioned that the House constructed in Survey No.2720 in the land belonging to the Tamil Nadu Housing Board is illegal one as per Tamil Nadu Housing Board Act and since the said land is immediately required for the Tamil Nadu Government Servants rental Housing scheme as per Section 136 of the Tamil Nadu Housing Board Act, the same cannot be granted and hence directed the Petitioner to remove the encroachment within thirty days, failing which as per the Tamil Nadu Housing Board Act, the encroachment will be removed properly by taking necessary steps thereto. The Petitioner preferred the appeal before the Secretary to Government, Housing and Urban Development Department/ the First Respondent and he has passed in G.O.(D) No. 786 dated 07.11.2002 in and by which the Appeal filed by the Petitioner has been dismissed for the reasons assigned therein. On 18.02.2010, the Third Respondent/ The Executive Engineer, Tamil Nadu Slum Clearance Board has filed a report interalia stating that the plot No.191 has been wrongly allotted to the Petitioner and further a sum of Rs.518/- has been collected as per receipt No.127308 dated 18.02.1993, Rs.50/- as per receipt No.162354 dated 22.12.1997 and Rs.50/- as per receipt No.48001 dated 10.04.1998 totalling to Rs.618/- . Also it is mentioned that later it has been found that four plots viz. Plot Nos. 190,191,192 and 195 are not coming under the approved plan LP/R (MR) No.31/88 and hence the collection of installment amounts have been stopped. 27. On the other hand, the report of the Third Respondent, dated 18.02.2010 mentions that the lands where the Petitioner and the seven others have been wrongly allotted does not belong to the Tamil Nadu Slum Clearance Board and hence the Third Respondent by its proceedings in R.O.C.No.A1/515/2004 dated 16.02.2010 has cancelled the allotment made in the above said plots including that of the Petitioner and has sent the communication to all the persons to whom the said plots have been wrongly allotted. Furthermore, the Petitioner has been issued a D.D. Of Rs.1885/- along with the cancellation order. https://hcservices.ecourts.gov.in/hcservices/ 28. It is pertinent for this Court to recall the decision of Dr.S.Arumugham Versus The Government of Tamil Nadu represented by the Secretary to Government Housing and Urban Development, Madras-9 and another (1990 Volume 1 MLJ at page 190), wherein it is held as follows: "When the Petitioner is aware of the fact he is occupying the premises under the permission granted by the Government evenafter his retirement, the Court does not see how the Petitioner can ask for a notice under S.84 of the Act. It is no doubt true that sub-section(2) of S.84 contemplates a particular procedure. If this sub-section is considered, it can be found that the Petitioner had enough opportunity and indulgence so to say from the Government to retain the flat for more than two years. The Petitioner was occupying the flat unauthorisedly. Since it cannot be denied that it is unauthorised occupation and having obtained extension of time for more than two years from the Government to retain the flat, there is no rhyme or reason in the request of the Petitioner that the provisions of S.84 of the Act have to complied with on the facts and circumstances of this case. If sub-Section(2) of S.84 of the Act is intended to give an opportunity to the person and to consider his explanation before an order of eviction is passed, virtually this sub-section is based upon a principle of natural justice. Though non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary on the facts and circumstances of this case, the Petitioner cannot ask for the relief that his possession should not be interfered with by the respondents. On the admitted and indisputable facts, only one conclusion is possible and as such it is well settled that the Court sitting under Art.226 of the constitution of India may not issue a writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because courts do not issue such futile writs. It is also well https://hcservices.ecourts.gov.in/hcservices/ settled that the principles of natural justice have to be decided taking into account the provisions of the Act and the intention behind it. The Court is inclined to take the view that the Petitioner had enough opportunity before he was asked to vacate the premises in this case. The Petitioner was hoping to get the flat for himself under the public quota system and was asking for extension of time to vacate the premises. That means, he has accepted the unauthorised occupation. Having taken that stand before the Government, it is not open to him to approach this Court by way of a Writ Petition under Art.226 of the Constitution of India, that too for a Writ of Mandamus to prevent the respondents from interfering with his possession." 29. On a careful consideration of the respective contentions and in view of the fact that the Plot No.191 relating to the Petitioner does not belong to the Third Respondent/Tamil Nadu Slum Clearance Board and the same belongs to the Second Respondent/Tamil Nadu Housing Board, this Court comes to an inevitable conclusion that the Tamil Nadu Housing Board Act 1961 Section 82 empowers to evict the unauthorised occupants as per decision of this Court in A.Durairaj Vs. The Chairman, Tamil Nadu Housing Board, Nandanam, Chennai and others ((2001) 3 M.L.J.704 at page 704) and viewed in that perspective, the order passed by the First Respondent in G.O.(D) 786 dated 07.11.2002 is not liable to be set aside since this Court finds no infirmity in the said Government Order and accordingly the Writ Petition fails. 30. In the result, the Writ Petition is dismissed, leaving the parties to bear their own costs. However, it is open to the concerned authorities to take necessary action in terms of the order passed by this Court in this Writ Petition, in the manner known to law and in accordance with law. Sd/- Asst.Registrar /True Copy/