IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.08.2009 CORAM: THE HONOURABLE MR.JUSTICE P.K.MISRA AND THE HONOURABLE MR.JUSTICE R.SUBBIAH Writ Appeal No.948 of 2009 and Writ Petition Nos.1002 and 14350 of 2009 and M.P.Nos.1 in all matters and M.P.No.2 of 2009 in W.A.948 of 2009 W.A.No.948 of 2009 1. The Chairman-cum-Managing Director, Tamil Nadu State Housing Board, Nandanam, Chennai-35. 2. The Revenue Officer, Tamil Nadu State Housing Board, Nandanam, Chennai-35. ..Appellants/Respondents 2 & 3 ..vs.. 1. S.Elumalai 2. R.Kumaravelu 3. B.Sathyanarayanan 4. V.Sakunthala 5. P.S.Sheeja 6. State of Tamil Nadu, rep.by its Secretary to Government, Housing and Urban Development Dept., Fort St.George, Chennai-600 009. 7. The Registrar General, Madras High Court, Chennai-600 104. ..Respondents/Petitioners and Respondents 1 & 4 W.P.No.1002 of 2009 1. Y.Mani 2. R.Vijayakumar 3. V.Trisa 4. K.Parthasarathy https://hcservices.ecourts.gov.in/hcservices/ 5. P.Srinivasan 6. P.Panneer Selvam 7. T.Ravi 8. J.Soban Babu 9. N.Venkatiah 10. A.Rani 11. K.Rajendran 12. R.Baladevan 13. R.Neelakandan 14. S.Kaleem 15. R.Sukumar 16. G.Radha 17. R.Ekambaram 18. N.Seemanthini 19. S.Manoharan 20. G.Ramamoorthy 21. R.Natchathara Kannan 22. S.Nalini ..Petitioners ..vs.. 1. State of Tamil Nadu, rep.by its Secretary to Government, Housing and Urban Development Dept., Fort St.George, Chennai-600 009. 2. The Chairman-cum-Managing Director, Tamil Nadu State Housing Board, Nandanam, Chennai-35. 3. The Revenue Officer, Tamil Nadu State Housing Board, Nandanam, Chennai-35. ..Respondents W.P.No.14350 of 2009 K.Senthilvel ..Petitioner ..vs.. 1. State of Tamil Nadu, rep.by its Secretary to Government, Housing and Urban Development Dept., Fort St.George, Chennai-600 009. 2. The Chairman-cum-Managing Director, Tamil Nadu State Housing Board, Nandanam, Chennai-35. https://hcservices.ecourts.gov.in/hcservices/ 3. The Revenue Officer, Tamil Nadu State Housing Board, Nandanam, Chennai-35. 4. The Registrar General, Madras High Court, Chennai-600 104. ..Respondents W.A.No.948 of 2009 filed under Clause 15 of Letters Patent, against the order of a learned single Judge dated 30.04.2009 in W.P.No.6748 of 2009. This Writ Petition filed under Article 226 of the Constitution of India, praying to issue a 'Writ of Mandamus' directing the respondents to provide alternative accommodation to the Petitioners mentioned in any of the area more particularly either 1. Todhunter Nagar, Saidapet, 2. K.G. Colony, Kilpauk, 3. Shenoy Nagar, 4. Peters Colony, 5. Pudur, Kodambakkam or any one of the quarters of Housing Board/Public Works Department/Police Quarters in Chennai at the earliest and till such time direct the respondents 1 to 3 not to vacate the Petitioners from the respective tenements. W.P.No.1002 of 2009 filed under Article 226 of the Constitution of India, for issuance of a Writ of Mandamus, forbearing the respondents, their men, agents and subordinates from evicting the petitioners from Foreshore Estate Housing Board without providing alternate site within the City of Madras. W.P.No.14350 of 2009 filed under Article 226 of the Constitution of India, for issuance of a Writ of Mandamus, directing the respondents to provide alternative accommodation to the petitioners mentioned in any of the area more particularly either (1) Todhunter Nagar, Saidapet, (2) K.G.Colony, Kilpauk, (3) Shenoy Nagar, (4) Peters Colony, (5) Pudur, Kodambakkam, and (6) Venkattapuram, Saidapet or anyone of the quarters of Housing Board/Public Works department/Police Quarters in chennai at the earliest and till such time direct the respondents 1 to 3 not to vacate the petitioner from the respective tenements. For Appellants : Mr.P.Wilson, AAG., assisted by Mr.K.Chelladurai in W.A. For Respondents : Mr.R.Muthukumarasamy, Senior Counsel in W.A. for Mr.A.Jenasenan in W.A. For Petitioners : Mr.Lakshminarayanan (WP 1002/2009) Mr.C.D.Johnson (WP 14350/2009) For Respondents : Mr.D.Veerasekaran for R1 in both WPs. Mr.P.Wilson, AAG., assisted by Mr.A.Vijayakumar for TNHB in both WPs https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENT R.SUBBIAH, J., Since the issue involved in all the matters is one and the same, they are disposed of by this common judgment. 2. The facts, which are necessary to decide the issue, are as follows: The petitioners in both the writ petitions and W.P.No.6748 of 2009 (the subject matter of W.A.No.948 of 2009) are the employees of the High Court as well as the the Courts situated within the limits of Chennai City. The averments, which are similar in the said writ petitions, are that the petitioners are the allottees of the Government quarters situated at Foreshore Estate and they are residing in the said flats for a long time. The said flats have been allotted to them under the Tamil Nadu Rental Housing Scheme. The rent is being collected from their salary and remitted in the Government account. The Tamil Nadu Housing Board is the custodian for maintaining these rental houses. These flats were constructed 35 years ago and they are situated in the sea-shore area and have been affected by tsunami during December, 2004. Therefore, the Government constituted a Committee of Experts to assess the damage and report the same to the Government and as per the Expert Committee's report, it was decided to demolish the dilapidated buildings and construct new one for Tamil Nadu Rental Housing Scheme as the same is unfit for safe living and human occupation. Hence, notices were issued to all the allottees through their Head of the departments to vacate and hand over the possession of the apartments so as to safeguard their lives and properties of the allottees from untoward incident as the buildings are not worthy for living. On receipt of the eviction notice, the occupants of the quarters approached this Court by way of different writ petitions seeking orders/directions, forbearing the respondents from evicting the allottees from Foreshore Estate Housing Board, without providing alternative site within the City of Madras. As per the order of this Court dated 02.12.2008 in W.P.No.18512 of 2008, alternative allotments were made to the petitioners thereby. There are various unoccupied housing board flats available in the City. Without initiating any action to accommodate the petitioners in that premises, the respondents had requested to occupy the mini houses constructed for people below the poverty line, which are located beyond 50 kms.from the Court. Hence, the petitioners in W.P.Nos.1002 and 14350 of 2009 want alternative accommodation within the City limits. 3. The petitioners in W.P.No.6748 of 2009, sought for a direction to the respondents to provide alternative accommodation to them in any of the vacant flats situated at Todhunter Nagar, Saidapet, Shenoy Nagar, K.G.Colony, Kilpauk, Peters Colony, Pudur https://hcservices.ecourts.gov.in/hcservices/ Kodambakkam. The learned single Judge, by order dated 30.04.2009, directed the respondents therein to provide alternative accommodation in any one of the places found in the list produced by respondents 1 to 5. Aggrieved over the same, the Government has preferred the present appeal, viz., W.A.No.948 of 2009. For the sake of convenience, the allottees are described as petitioners and the Government authorities are described as appellants. 4. Learned Additional Advocate General appearing for the appellants submitted that it is impracticable for the Government to give alternative rental accommodation for all allottees within the City limits due to non-availability of Government rental quarters. Therefore, the Tamil Nadu Government and the Housing Board have issued G.O.Ms.No.93, Housing & Urban Development (H.B/5(2) Department, dated 24.03.2008, after deeply examining the problems of the allottees of the Foreshore Estate Government Quarters. As per the said G.O., accommodations were provided at the Colonies put up by the Slum Clearance Board at Semmancheri or in alternative, the Housing Board prepared to give an advance of Rs.25,000/- to those allottees, who express their willingness to vacate their houses at Foreshore Estate and shift their residence to private rental houses and the said advance shall be recovered from the allottees in 25 equal monthly instalments. Some of the allottees expressed their willingness to go to Semmancheri to occupy the premises allotted by the Government and most of them received Rs.25,000/- interest free loan and vacated their houses. Though majority of them have vacated by expressing their willingness to opt the concession introduced by the Housing Board, still some of the allottees do not want to go either to Semmenchery or to receive Rs.25,000/- and they are still residing in the flats under their occupation. 5. The learned Additional Advocate General further submitted that majority of the occupants from the Foreshore Estate opted the Scheme brought by the Government and the Tamil Nadu Housing Board by accepting the interest free loan amount of Rs.25,000/- to meet the incidental expenses for shifting their residence and some of the occupants shifted their accommodation to Semmancheri. Further, by showing the photographs with regard to the condition of the dilapidated buildings, learned Additional Advocate General submitted that it is totally unsafe for the occupants to reside in such premises. Therefore, the Government had decided to demolish the entire building and reconstruct the same with a view to allot the flats for the allottees who were already in occupation. Further, it is submitted that it is the duty of the Government servants to obey and co-operate with the order of the Government to ensure their safety instead of showing any protest. Because of the act of the allottees, who continue to reside in the quarters, the appellants are not able to commence their work of demolition. In fact, as per the decision of the Government, once the construction is over, the https://hcservices.ecourts.gov.in/hcservices/ allotment will be made to the same persons. Thus, he prayed that the appeal has to be allowed. 6. Per contra, the learned senior counsel Mr.R.Muthukumarasamy appearing for the petitioners/allottees in the writ appeal submitted that as per the orders passed by this Court in some earlier writ petitions filed by a group of allottees, alternative accommodations were provided by the appellants. The petitioners/allottees in the writ appeal are also having the equal right. Therefore, by considering the plight of the allottees, alternative accommodation should be provided to them. Learned counsel appearing for the writ petitioners also made his submission on the similar lines. 7. Learned counsel appearing for the writ petitioners in W.P.No.1002 and 14350 of 2009 produced a list of available flats in the different Government quarters situated within the City limits by way of filing a separate affidavit. With regard to the available flats, learned Additional Advocate General submitted that more than 900 persons are in the waiting list awaiting for the allotment of Government quarters. Therefore, by by-passing the waiting list, allotments could not be given to the petitioners. Further, he once again reiterated that once the construction was over, the allotment may be given immediately to the same persons as per the registration of their seniority recorded in the list in respect of vacating the quarters. 8. Heard the learned counsel for all the parties. 9. From the submissions made by the learned counsel for the petitioners, it could be understood that there is no dispute in vacating the flats. The only grievance expressed by the allottees is that Semmancheri is far away from the City. Therefore, Educational facilities of their children will be very much affected. Further, most of them are working in the Judicial Department in various Courts situated within the City limits and if they are shifted to Semmancheri, it would be very difficult for them to travel such a long distance since there is no frequent transportation service to reach the City from Semmancheri. Except this grievance, we do not find any other grievance expressed by the allottees. 10. At this stage, it would be appropriate to extract clauses 13 and 20 found in the agreement entered by the allottees of the Government Quarters with the Housing Board, (available in the additional typed set) which are relied on by the learned Additional advocate General while making his submission that the allottees have no right to continue in the flats, as hereunder: "13. I shall handover the possession of the said premises at the termination of the tenancy peacefully to the said Board in the same condition in which they were at the commencement https://hcservices.ecourts.gov.in/hcservices/ of the tenancy reasonable wear and tear excepted. The question as to what reasonable wear and tear shall be decided by the Board and the decision of the Board shall be final and binding on me. And also to make good the loss or damages that might have been caused to the tenement according to the said Board in cash, or from my deposit if available. 20. The tenancy shall be terminable by either side given to the other, one clear calendar month's notice. If I leave tenement without giving such notice in writing, I shall be liable to pay one clear calendar month's rent in lieu of such notice and all other charges due from me as provided herein for the notice period". 11. When the allottees had entered into an agreement with the Tamil Nadu Housing Board that the tenancy will be terminable by one month's notice and when the intention of the Government is only to demolish and reconstruct the building since it is highly unsafe to continue to reside in the same, the allottees have no right to continue the tenancy. Now, the question is whether the relief sought for by the petitioners, namely, direction to the authorities to provide alternative accommodation within the City limits, can be granted or not. 12. As pointed out by the learned Additional Advocate General, when more than 900 persons are waiting for allotment of Government quarters, by by-passing the said list, such a direction cannot be granted as prayed for by the allottees, particularly in the circumstances when the Government had decided to allot the flats to all the same persons after the construction is over. In view of the decision of the Government to re-allot the flats after construction to the same persons, it is clear that the alternative accommodation is only for a temporary in nature. By taking into consideration the plight of the building and the risk of life of the allottees, who are still occupying the flats, the discomforts, if any, they will be going to face for a short period by shifting their residence, are not of a serious concern. The submission made by the learned senior counsel appearing for the respondents in the writ appeal that since as per the order of this Court some of the allottees have been given alternative accommodation within the City limits, the same relief shall be granted to the respondents in the writ appeal, may not be accepted. Since some of the allottees are provided with alternative accommodation within the City limits in the earlier writ petitions, it does not mean that the present allottees are having a right for alternative accommodation because such a relief under Article 226 of the Constitution of India is discretionary in nature. Further, most of the allottees have accepted the Scheme introduced by the Government. At this stage, if the prayer of these allottees is accepted, then the other persons, who are residing in the flats, also may approach this Court with the same prayer. Under such https://hcservices.ecourts.gov.in/hcservices/ circumstances, it will be very difficult for the Government to allot the alternative accommodation. Moreover, in a writ petition filed by the Fore Shore Estate Government Employees Residents Welfare Association, this Court passed an order, directing the members of the said petitioner association to vacate their quarters within a particular period. Hence, we are not inclined to accept the submission made on behalf of the allottees and they are not entitled to the relief sought for. However, we record the submission made by the learned Additional Advocate General that allotments will be made to the allottees, as per the registration of their seniority recorded in the list while vacating the flats. The said allotment will be made if they are eligible for allotment at the time of allotting such flats. For the reasons stated above, the writ appeal is allowed and both the writ petitions are dismissed with the above observation. No costs. Consequently, connected M.Ps.are closed. (Order of the Court was made by P.K.MISRA, J.,) After judgment was pronounced, learned counsel appearing for the petitioners prays that some time may be granted to the petitioners to vacate the premises and to enable them to find out alternative accommodation. 2. If any of the petitioners files an affidavit, giving an undertaking to vacate the premises voluntarily by 15.09.2009, time can be extended in respect of such person till 15.09.2009. It is made clear that if no such affidavit is filed within seven days from today, the Housing Board would be free to take any coercive steps for taking possession of the flats in question. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar gl sai 1. The Secretary to Government, State of Tamil Nadu, Housing and Urban Development Dept., Fort St.George, Chennai-600 009. 2. The Chairman-cum-Managing Director, Tamil Nadu State Housing Board, Nandanam, Chennai-35. https://hcservices.ecourts.gov.in/hcservices/ 3. The Revenue Officer, Tamil Nadu State Housing Board, Nandanam, Chennai-35. 4. The Registrar General, Madras High Court, Chennai-600 104. + 1 c.c. to Mr. V. Raghavachari, Advocate. S.R.No.35825. + 1 c.c. to Mr. J.D. Johnson, Advocate. S.R.No.35966. + 1 c.c. to Mr. A. Vijayakumar, Advocate. S.R.No.36269. + 1 c.c. to Mr. D. Veerasekaran, Advocate. S.R.No.36156. + 1 c.c. to Mr. K. Chelladurai, Advocate. S.R.No.35830. + 1 c.c. to Mr. A. Jenasenan, Advocate. S.R.No.35764. + 1 c.c. to The Government Pleader. S.R.No.35716 & 35862. Common judgment in W.A.No.948/2009 and W.P.Nos.1002 & 14350/2009 CK (CO) GSK 07.08.2009. https://hcservices.ecourts.gov.in/hcservices/