IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.04.2008 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI W.P. No.12411 of 1998 North Madras Middle School rep. By its Manager & Correspondent D.Amarjothi .. Petitioner vs. 1. The Chairman, Tamil Nadu Slum Clearance Board, Chennai-5. 2. The Secretary, Revenue Dept., Fort St. George, Chennai-9. 3. The Member/Secretary, CMDA, Chennai. 4. The Commissioner, Corporation of Chennai, Chennai. 5. The Director, Elementary School Education, Chennai. .. Respondents (R2 to R5 impleaded as per order dated 25.4.2008 in WPMP No.17372/2006) Prayer : Writ petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari praying for the relief stated therein. For petitioners : Mr.C.Selvaraj Senior Counsel for Mr.P.Balasubramanian https://hcservices.ecourts.gov.in/hcservices/ For respondents : Mrs.D.Geetha, AGP for R2 & R4 Mr.Y.Bhuvanesh Kumar for R.1 Mr.G.T.Subramanian for R.5 Mr.C.Kathiravan for R3 (CMDA) O R D E R The writ petition is filed seeking to issue a Writ of Certiorari calling for the records pertaining to the order passed by the respondent in 127/B1(A)/Ea.Aa/Vu.Thi.4.H/III dated 5.9.1986 and the consequential order in Na.Ko.No.725/98-B, EO/III dated 16.6.1998 and Se.Mu.Ka.No.21506/96/E3/ dated 2.7.1998 and quash the same. 2. The petitioner challenges the order of the Slum Clearance Board dated 2.7.1998, by which the Slum Clearance Board (hereinafter referred to as 'the Board') has cancelled the assignment made in respect of the petitioner-School in the year 1994. The cancellation order is passed on the basis that the petitioner having got assignment of the property for the purpose of running the School, has put up eight shops without obtaining permission from the Board and in violation of the conditions prescribed by the CMDA, which has been subsequently impleaded as a party in this proceeding. 3. It is the case of the petitioner that the petitioner has started the School in R.S.No.779/23 (Part) Perambur Village, in a premises which was leased out in her favour by the Collector of Madras in his proceedings dated 13.11.1951, originally for a period of three years and the specific purpose of the lease was to run the School. The annual rent for the premises was also reduced by the Government subsequently in the year 1954 from Rs.44 to Rs.1/-. The petitioner has developed the School and according to her, there are 900 students studying in the School as on today. At the time when the lease was granted, it was a low-lying area and the petitioner has spent enormous amount for the purpose of levelling the land. The extent in which the School is situated is 12 grounds in R.S.No.779/23 (Part) Perambur Village. The petitioner has applied to the Government for assignment of the land and ultimately, the Government, by order dated 19.6.1975, has granted permission to the petitioner to continue to run the School in the area occupied by her. Subsequently, by the proceedings dated 15.3.1979, the Collector of Madras has assigned the property in favour of the petitioner to run the School with certain conditions. 4. The petitioner's case is that in the mean time, the nearby hut dwellers have started encroaching the land belonging to the School, about which, an enquiry was conducted by the Special Deputy Collector stating that one Association is in unauthorised occupation of the place allotted to the petitioner by the Collector in 1975. On conducting an enquiry by the Madras Metropolitan Development Authority which was in existence at that time, there was a finding that encroachment of the https://hcservices.ecourts.gov.in/hcservices/ land has been made by outsiders, affecting the petitioner in running the School. The authorities having recommended the assignment of the land in favour of the petitioner, have also recommended for eviction of unauthorised slum dwellers who have occupied the land. In the meantime, the Board has fixed the value of the land as Rs.6,82,500/- and directed the petitioner to pay in instalment at Rs.7,746/- per month. The petitioner, has, in fact made a representation to the Government that the Board has no power to demand such land cost. In the mean time, the Board has threatened to evict the petitioner from that place. The fixation of the value of the land by the Board is on a commercial basis, which is not applicable to the petitioner, who is running a School. The petitioner School is an aided School, the staff grant being met by the Government, and the petitioner has to meet the expenses for the maintenance of the School and other expenses for running the School and it was under these circumstances, according to the petitioner, that they put up eight small shops for the purpose of earning amount by way of rent for maintaining the School. Hence, the Board has issued a show cause notice on 16.6.1998 to remove the shops and to hand over possession of the property to the Board. According to the petitioner, the Board has no jurisdiction to issue such a notice. Since according to the petitioner this is a land allotted to them by the Government by way of assignment, the duty of the Board was only to remove the unauthorised encroachers, who are slum dwellers, from the lands assigned. 5. The notice referred to in the impugned order relates to the proceedings under Rule 4 of the Tamil Nadu Slum Clearance Board (Control and Management of Properties) Rules, 1971, in respect of which, final order was passed by the Revenue Officer, against which a statutory appeal has been filed under Rule 9 of the said Rules, which is pending before the Chairman of the Slum Clearance Board. Pending such appeal, the present impugned order is passed cancelling the assignment granted to the petitioner. 6. The contention of the learned Senior Counsel Mr.C.Selvaraj is that the assignment of this land was made by the Government as early as on 13.11.1951, of course, specifically for the purpose of running the School and the assignment is in the form of a 'grant' and hence, the Slum Clearance Board has no authority to object to it. According to the learned Senior Counsel, the Board in its proceedings dated 23.11.1973 has issued no objection for the purpose of the proposed assignment, which is actually in the form of reassignment in the year 1973 for running the School. Further, the Board by treating the petitioner as an encroacher, has proceeded to take action under the Act as well as the Rules framed thereunder by issuing the order dated 16.6.1998, directing the petitioner to remove all the superstructures in the land and hand over the land to the Board. Against the said order, an appeal has been filed to the Chairman of the Board. Since such an appeal is not disposed https://hcservices.ecourts.gov.in/hcservices/ of, and it is not open to the respondents to issue the present impugned order, cancelling the assignment. Otherwise, the contention of the learned Senior Counsel is that inasmuch as it is the Government which has granted the assignment, it is not open to the Board to cancel the same and the Board has no jurisdiction at all. 7. In the counter affidavit filed on behalf of the Board, it is stated that by virtue of G.O.Ms.No.1117 dated 27.6.1979, the Government has decided to make improvement in the slum area occupied by the slum dwellers with the aid of World Bank and the land in occupation by the petitioner which is in Erunkancherri area formed part of the Scheme. It is the case of the respondent that the land comprised in Plot No.200 was transferred to the Board for the petitioner to have the benefit of the Madras Urban Development Scheme and thereafter, by Board's proceedings dated 5.9.1986, a fresh allotment was made to the petitioner-School for the purpose of running the School on the basis of the sale consideration amount of Rs.6,82,400/- for the extent of 22.75 ares. However, the petitioner has constructed eight shops and has let them out to third parties for commercial purposes, which is in defiance of the conditions of the lease-cum-sale agreement. It is the case of the Board that the petitioner having accepted the allotment, is bound by various conditions imposed therein. It is also denied that the cost has been fixed based on the commercial value. It is also stated that as against the impugned order dated 2.7.1998, the petitioner has also preferred an appeal to the Government. It is specifically stated that the petitioner having proceeded to avail the statutory remedy by filing an appeal to the Government, the writ petition is not maintainable. 8. I have heard the learned counsel on either side and perused the materials placed on record. 9. Even though on the face of the record, it is seen that the original grant in respect of the petitioner School has been given on lease basis in the name of one M.P.Devadoss, the father of the petitioner, for the purpose of running the School and by proceedings dated 23.11.1973, the Board has granted no objection for the proposed assignment of the land for school purposes in favour of the petitioner, and the Superintending Engineer of the Board has ultimately cancelled the no objection granted by the Board, while the District Collector has assigned the land in favour of the petitioner vide G.O.Ms.No.58979/63/75 dated 19.6.1975. In fact, the correspondences of the Board with MMDA also make it clear that even in respect of Plot No.197, there is a recommendation that the same can be given to the petitioner for the purpose of running the School as per the Rules and Regulations. The proposed recommendation in respect of Plot No.197 was in addition to Plot No.200, which is already in possession of the petitioner. It is as against the subsequent order of the Board dated 5.9.1986 treating this lease-cum-sale agreement, the Board has fixed the value of the land at https://hcservices.ecourts.gov.in/hcservices/ Rs.6,82,500/- and directed the petitioner to pay in instalments at Rs.7,746/- per month, and the petitioner has been agitating the same with the Government by filing various representations and appeals and admittedly, as seen in the counter affidavit filed by the Board, such appeals are still pending and not disposed of. In the mean time, the Board has taken action by treating the petitioner as an encroacher and an order has been passed on 16.6.1998 directing the petitioner to vacate and hand over possession of the land on the basis that the petitioner is an encroacher in respect of Plot No.200 i.e., a lease-cum-sale was allotted and the petitioner was not coming forward to comply with the terms of payment of the instalment amount and as against the said order dated 16.6.1998, the petitioner has also filed an appeal before the Commissioner, who is the Secretary to Government, as it is seen from the counter affidavit filed by the Board. While so, the impugned order came to be passed on 2.7.1998 straight away cancelling the assignment in respect of Plot No.200 granted to the petitioner. The main reason for the purpose of cancelling the assignment is that the petitioner has put up eight shops without proper permission from the Board and approval from the authorities, viz., CMDA. The learned counsel for the CMDA has confirmed that on verification, the CMDA has found that the petitioner has in fact constructed eight shops without proper approval, which is contemplated under the Act. 10. Therefore, a reference to the impugned order shows that the main reason given is that the petitioner-School has converted the place allotted for the purpose of running the School to one for commercial purposes of putting up construction of eight shops and letting out the same to third parties. In this impugned order, the respondents have not chosen to state anything about the encroachment stated to have been made by the petitioner in respect of Plot No.200, i.e., probably due to the reason as stated in the affidavit filed by the respondent that since the appeal preferred before the Government is pending, the impugned order restricts itself only for the purpose of unauthorised construction made by the petitioner by putting up shops. 11. A reference to the records, which has been elicited above, clearly shows that there was in fact assignment given to the petitioner by the Government and subsequently, the same has been given as allotment by the District Collector, for which the Board has not objected and all these proceedings are only for the purpose of permitting the petitioner to run the School in North Madras area, which is in dire need of education. When that is the case, it is admitted by the petitioner, as it is seen from their affidavit, that they have put up construction of eight shops to meet out various expenses and maintenance of the School, which cannot at all be acceptable. When once the allotment is made for the purpose of the avowed object of running the School in such a backward area, no excuse from a person like the petitioner can be accepted that the shops were put up for the benefit of running the School by converting the place into one for commercial activities. In https://hcservices.ecourts.gov.in/hcservices/ view of the same, I have no hesitation to hold that the petitioner has no manner of right whatsoever to put up construction of the eight shops for running the School and hence, the said shops are liable to be removed. 12. Moreover, a reading of the impugned order shows that the intention of cancellation of the allotment is only because the property was not used for the public purpose. As far as the payment of cost by lease-cum-sale agreement, the matter is pending with the Government. Until the Government decides the issue, it is not open to the respondents to foreclose the same by including that also in the impugned order. 13. In view of the same, the writ petition stands ordered by setting aside the impugned orders of the respondents with a specific direction to the respondents, including the CMDA, to remove the eight shops put up by the petitioner in the place allotted to the petitioner for running the School, forthwith. As far as continuation of allotment in respect of Plot No.197 and Plot No.200 is concerned, the appeal is pending before the Government, as has been admitted by the petitioner. Hence, it has to be decided by the Government. 14. In the circumstances, the writ petition is ordered accordingly. Needless to state that while disposing of the appeal, it is for the Government to give opportunity to the petitioner. No costs. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar gs. To 1. The Chairman Tamil Nadu Slum Clearance Board, Kamaraj Salai, Ch-5. 2. The Secretary, Revenue Department, St. George Fort, Ch-9. 3. The Member / Secretary CMDA, Talamuthu Natarajar Building, Egmore, Chennai – 8. https://hcservices.ecourts.gov.in/hcservices/ 4. The Commissioner Corporation of chennai, Ribbon Building, Chennai – 3. 5. The Director Elementary School Education, College Road, Chennai. +1 cc to Mr.Y.Bhuvanesh Kumar, Advocate, SR.No.23915. +1 cc to Mr.P.Balasubramani, Advocate, SR.No.23922. Sj (Co) krd / 30.4 W.P. No.12411 of 1998 https://hcservices.ecourts.gov.in/hcservices/